Alleged violation of Article 2 of the Convention
- The applicants complained under Article 2 of the Convention that their relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
- The parties’ submissions
- The Government contended that the domestic investigation had obtained no evidence that Aslanbek Khamzayev was dead or that any servicemen from federal law-enforcement agencies had been involved in his kidnapping or alleged killing. The Government claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures available in national law were being taken to identify the perpetrators. The applicants themselves had been responsible for the delay in opening the investigation as they had reported the crime to the district prosecutor’s office only on 5 August 2002.
- The applicants argued that Aslanbek Khamzayev had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for more than six years. They also argued that the investigation had not met the requirements of effectiveness and adequacy, as required by the Court’s case-law on Article 2. The applicants invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.
- The Court’s assessment
- The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 55 above). The complaint under Article 2 of the Convention must therefore be declared admissible.
(a) The alleged violation of the right to life of Aslanbek Khamzayev
- The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146 – 47, Series A No. 324, and , cited above, § 391).
- As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged kidnapping of Aslanbek Khamzayev. The applicants have not submitted persuasive evidence to support their allegations that State agents were the perpetrators of such a crime. The Court has already found above that, in the absence of relevant information, it is unable to find that security forces were implicated in the disappearance of the applicants’ relative (see paragraph 70 above). Neither has it established “beyond reasonable doubt” that Aslanbek Khamzayev was deprived of his life by State agents.
- In such circumstances the Court finds no State responsibility, and thus no violation of the substantive limb of Article 2 of the Convention.
(b) The alleged inadequacy of the investigation into the kidnapping
- The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others, cited above, § 161; and Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998-I). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, No. 24746/94, §§ 105 – 09, ECHR 2001-III (extracts), and Douglas-Williams v. the United Kingdom (dec.), No. 56413/00, 8 January 2002).
- The Court notes that there is no proof that Aslanbek Khamzayev has been killed. However, it reiterates that the above-mentioned obligations also apply to cases where a person has disappeared in circumstances which may be regarded as life-threatening (see , cited above, § 112). The applicants informed the investigating authorities that Aslanbek Khamzayev had disappeared in suspicious circumstances. Given the considerable number of reported enforced disappearances of persons in the Chechen Republic and the enduring confrontation between illegal armed groups and federal troops in the region in the early 2000s, the Court considers that the disappearance of Aslanbek Khamzayev could be regarded as life-threatening. Furthermore, it must be accepted that the more time that goes by without any news of the person who has disappeared, the greater the likelihood that he or she has died (see Tahsin Acar v. Turkey [GC], No. 26307/95, § 226, ECHR 2004-…). Accordingly, after a certain lapse of time during which no information on the fate of Aslanbek Khamzayev had been received, a presumption arose that he could have been deprived of his life at the hands of any kidnappers. Accordingly, the Court concludes that the State authorities were under a positive obligation to investigate the crime in question.
- Given that there was an investigation into the disappearance of Aslanbek Khamzayev, the Court must now assess whether it met the requirements of Article 2 of the Convention.
- The Court notes at the outset that the documents from the investigation file in case No. 50115 were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicants and the scant information on its progress presented by the Government.
- The Court observes that on 28 June 2008, that is, three days after Aslanbek Khamzayev’s disappearance, the applicants contacted lawyers from Memorial who, in turn, immediately informed the city prosecutor’s office of the crime (see paragraph 14 above). The investigation in case No. 50115 was instituted on 6 August 2002, that is, more than a month after Aslanbek Khamzayev’s disappearance.
- The Government attributed the delay in commencing the investigation to the applicants arguing that the first applicant had filed a complaint with the city prosecutor’s office only on 5 August 2002. The Court considers in this respect that the issue of whether members of Aslanbek Khamzayev’s family or others have lodged a formal complaint about his disappearance with the competent investigating authorities is not decisive. The mere knowledge of the disappearance in life-threatening circumstances on the part of the authorities gave rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the incident (see, mutatis mutandis, Ergi v. Turkey, 28 July 1998, § 82, Reports 1998-IV, and v. Turkey, 2 September 1998, § 100, Reports 1998-VI). The Government did not contest the applicants’ assertion that the lawyers from Memorial had reported the crime to the city prosecutor’s office on 28 June 2002. Accordingly, the Court finds it established that the competent investigating authorities were notified of Aslanbek Khamzayev’s disappearance shortly after it took place. In such circumstances, they and not the applicants were responsible for the substantial delay in commencing the investigation. In the Court’s view, this delay was in itself liable to affect the investigation into the disappearance in life-threatening circumstances, when crucial action was required in the first days.
- Furthermore, a number of essential investigative measures, such as interviews of key witnesses, were delayed for a considerable time. For instance, Aslanbek Khamzatov’s father and aunt were questioned for the first time a year after the incident, while Ms R.Yu. and Mr Yu. were interviewed only in May 2004 (see paragraphs 33 – 35 and 37 above). It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken as soon as the investigation commenced. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, No. 46477/99, § 86, ECHR 2002-II).
- The Court notes that, regrettably, it is unable to build a timeline of the investigation because of the Government’s failure to submit not only the case documents, but also a detailed account of the relevant events. In these circumstances and drawing inferences from the Government’s failure to submit information on the course of the proceedings, it concludes that a number of essential investigative measures were either delayed or not taken at all.
- Most notably, it does not appear from the materials in the Court’s possession that the investigators ever tried to find out whether an identity check was carried out at the bus stop near the dam on 25 June 2002 and, if so, which State agency was in charge of it. According to the Government, the investigators demanded information on special operations from various law-enforcement agencies and established that no such operations had taken place in the area at the material time (see paragraph 40 above). However, the Government have not clarified whether a standard identity checkpoint is to be regarded as a “special operation” or not. In the absence of an unequivocal answer the Court is inclined to assume that not every identity check constitutes a “special operation”. Given that a number of witnesses confirmed that they had seen the identity check at the bus stop, it considers that the investigators should have been more specific and precise when formulating their requests to the law-enforcement agencies. Moreover, the investigators have taken no steps to verify, on the basis of Mr Yu.’s submissions (see paragraph 37 above), whether any motorcades composed of APCs were circulating near the village of Chernorechye on 25 June 2002.
- The Court also notes that even though the first applicant was granted victim status in case No. 50115, the city prosecutor’s office only informed her of one of its decisions (the decision of 6 November 2002 to suspend the investigation), while it is clear from the Government’s submissions that the investigation was suspended and subsequently resumed a number of times. In such circumstances, and the Court considers that the investigators clearly and blatantly failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the legitimate interests of the next of kin of the victim in the proceedings (see v. Turkey [GC], No. 21594/93, § 92, ECHR 1999-III).
- Finally, the Court notes that the investigation was suspended and resumed an unspecified number of times. In such circumstances it is plausible to assume that there were lengthy periods of inactivity on the part of the city prosecutor’s office when no proceedings were pending.
- The Court will now examine the limb of the Government’s objection that was joined to the merits of the complaint (see paragraph 55 above). Inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the authorities’ failure to take necessary and urgent investigative measures undermined the effectiveness of the investigation in its early stages. Moreover, although the Government mentioned the applicants’ right to apply for judicial review of the decisions of the investigating authorities in the context of the exhaustion of domestic remedies, without access to the case file or proper information on the progress of the investigation, the applicants could not have effectively challenged acts or omissions of the investigating authorities before a court. Furthermore, given that the effectiveness of the investigation had already been undermined, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the criminal-law remedies relied on by the Government were ineffective in the circumstances and rejects their objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.
- In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding Aslanbek Khamzatov’s disappearance in life-threatening circumstances, in breach of Article 2 in its procedural aspect.
- Alleged violation of Article 3 of the Convention
- The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly, they had endured moral suffering in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
- The parties’ submissions
- The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.
- The applicants maintained their submissions.
- The Court’s assessment
- Referring to its settled case-law, the Court reiterates that, where a person has been abducted by State security forces and has subsequently disappeared, his or her relatives can claim to be victims of treatment contrary to Article 3 of the Convention on account of their mental distress caused by the “disappearance” of their family member and the authorities’ reactions and attitudes to the situation when it is brought to their attention (see, among many other authorities, Kurt v. Turkey, 25 May 1998, §§ 130 – 34, Reports 1998-III, and v. Turkey, No. 23531/94, §§ 96 – 98, ECHR 2000-VI).
- Turning to the circumstances of the present case, the Court notes that the applicants are close relatives of Aslanbek Khamzatov. Accordingly, it has no doubt that the applicants have indeed suffered from grave emotional distress following the disappearance of their son, husband and brother.
- The Court notes that it has already found violations of Article 3 of the Convention in respect of relatives of missing persons in a series of cases concerning the phenomenon of “disappearances” in the Chechen Republic (see, for example, Luluyev and Others, cited above, §§ 117 – 18; Khamila Isayeva v. Russia, No. 6846/02, § 143 – 45, 15 November 2007; and Kukayev v. Russia, No. 29361/02, §§ 107 – 10, 15 November 2007). It is noteworthy, however, that in those cases the State was found to be responsible for the disappearance of the applicants’ relatives. In the present case, by contrast, it has not been established to the required standard of proof “beyond reasonable doubt” that the Russian authorities were implicated in Aslanbek Khamzatov’s disappearance (see paragraph 70 above). In such circumstances the Court considers that this case is clearly distinguishable from those mentioned above and therefore concludes that the State cannot be held responsible for the applicants’ mental distress caused by the commission of the crime itself.
- Furthermore, in the absence of a finding of State responsibility for Aslanbek Khamzatov’s disappearance, the Court is not persuaded that the investigating authorities’ conduct, albeit negligent to the extent that it has breached Article 2 in its procedural aspect, could have in itself caused the applicants mental distress in excess of the minimum level of severity which is necessary in order to consider treatment as falling within the scope of Article 3 (see, among other authorities, Cruz Varas and Others v. Sweden, 20 March 1991, § 83, Series A No. 201).
- It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
VII. Alleged violation of Article 5 of the Convention
- The applicants further stated that Aslanbek Khamzatov had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
- Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
- Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
- Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
- The parties’ submissions
- In the Government’s opinion, no evidence had been obtained by the investigators to confirm that Aslanbek Khamzatov had been deprived of his liberty by State agents in breach of the guarantees set out in Article 5 of the Convention.
- The applicants reiterated their complaint.
- The Court’s assessment
- The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).
- Nevertheless, the Court has not found it established “beyond reasonable doubt” that Aslanbek Khamzatov was arrested by Russian servicemen (see paragraph 70 above). Nor is there any basis to presume that the missing man was ever placed in unacknowledged detention under the control of State agents.
- The Court therefore considers that this part of the application should be dismissed as being incompatible ratione personae and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.
VIII. Alleged violation of Article 13 of the Convention
- The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
- The parties’ submissions
- The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The applicants had had an opportunity to challenge the acts or omissions of the investigating authorities in court or before higher prosecutors and to bring civil claims for damages. In sum, the Government submitted that there had been no violation of Article 13.
- The applicants reiterated the complaint.
- The Court’s assessment
- The Court observes that the complaint made by the applicants under this Article has already been examined in the context of Article 2 of the Convention. Having regard to the findings of a violation of Article 2 in its procedural aspect (see paragraph 90 above), the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 is admissible, there is no need for a separate examination of this complaint on its merits (see, mutatis mutandis, Makaratzis v. Greece [GC], No. 50385/99, §§ 84 – 86, ECHR 2004-XI, and and Others v. Turkey, No. 63758/00, § 86, 5 June 2007).
- Alleged violations of Article 14 of the Convention
- In their initial application form the applicants stated that they had been discriminated against on the grounds of their ethnic origin in breach of Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
- In their observations on admissibility and merits dated 20 December 2007 the applicants stated that they no longer wished their complaint under Article 14 of the Convention to be examined.
- The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see Stamatios Karagiannis v. Greece, No. 27806/02, § 28, 10 February 2005).
- It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.
- Application of Article 41 of the Convention
- Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
- Pecuniary damage
- The first, fourth and fifth applicants claimed damages in respect of their relative’s loss of earnings. They submitted that, although Aslanbek Khamzatov was unemployed at the time of his disappearance, he could have been expected to earn at least the minimum wage and to support them financially. The first applicant claimed under this heading a total of 296,086.21 Russian roubles (RUB) (approximately 8,300 euros (EUR), the fourth applicant RUB 102,958.51 (approximately EUR 2,900) and the fifth applicant RUB 93,326.21 (approximately EUR 2,600).
- The Government regarded these claims as unfounded.
- The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions that there has been no violation of Article 2 in its substantive aspect, the Court finds that there is no direct causal link between the alleged violation of Aslanbek Khamzatov’s right to life and the loss by the first, fourth and fifth applicants of the financial support which he could have provided. Accordingly, it makes no award under this head.
- Non-pecuniary damage
- The first applicant claimed EUR 40,000, the fourth and fifth applicants EUR 30,000 each and the sixth, seventh and eighth applicants EUR 5,000 each in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member and the indifference shown by the authorities towards them.
- The Government found the amounts claimed exaggerated.
- The Court has found a violation of Article 2 in its procedural aspect. It thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. It finds it appropriate to award under this heading the first, fourth and fifth applicants EUR 2,000 each and the sixth, seventh and eighth applicants EUR 850 each, plus any tax that may be chargeable on these amounts.
- Costs and expenses
- The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research at a rate of EUR 50 per hour and drafting of legal documents submitted to the Court and the domestic authorities at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff. They also claimed courier service expenses and translation fees confirmed by relevant invoices, as well as administrative costs that were not supported by any documents. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 7,773.17.
- The Government disputed the reasonableness and the justification of the amounts claimed under this head. They also submitted that the applicants’ claims for just satisfaction had been signed by six lawyers, two of whom had not been mentioned in the powers of attorney issued by the applicants. They also doubted that it had been necessary to send the correspondence to the Registry via courier service.
- The Court notes that the applicants had given authority to act to the SRJI and its four lawyers. The applicants’ observations and claims for just satisfaction were signed by six persons in total. The names of three of these persons appeared in the powers of attorney, while three other lawyers collaborated with the SRJI. In these circumstances, the Court sees no reasons to doubt that the six lawyers mentioned in the applicants’ claims for costs and expenses took part in the preparation of the applicants’ observations. Moreover, there are no grounds to conclude that the applicants were not entitled to send their submissions to the Court via courier service.
- The Court now has to establish whether the costs and expenses indicated by the applicants’ relative were actually incurred and whether they were necessary (see McCann and Others, cited above, § 220).
- Having regard to the details of the information submitted, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.
- Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time that, due to the application of Article 29 § 3 in the present case, the applicants’ representatives submitted their observations on admissibility and merits in a single set of documents. Furthermore, the case involved little documentary evidence, in view of the Government’s refusal to submit the investigation file. The Court thus doubts that the legal drafting was necessarily time-consuming to the extent claimed by the representatives.
- Having regard to the details of the claims submitted by the applicants, the Court finds it appropriate to award the applicants’ representatives EUR 4,500, less EUR 850 received by way of legal aid from the Council of Europe, plus any tax that may be chargeable to the applicants, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.
- Default interest
- The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants’ complaints under Article 14 of the Convention;
- Dismisses the Government’s objection regarding abuse of the right of petition;
- Dismisses the Government’s objection regarding locus standi;
- Decides to join to the merits the Government’s objection regarding the non-exhaustion of criminal domestic remedies and rejects it;
- Declares the complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of Article 2 of the Convention in its substantive limb in respect of Aslanbek Khamzatov;
- Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Aslanbek Khamzatov had disappeared;
- Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violation of Article 2;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 2,000 (two thousand euros) in respect of non-pecuniary damage to the first, fourth and fifth applicants each and EUR 850 (eight hundred and fifty euros) to the sixth, seventh and eighth applicants each, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;
(iii) EUR 3,650 (three thousand six hundred and fifty euros), in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands, plus any tax that may be chargeable to the applicants;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.