Постановление ЕСПЧ от 08.12.2015 Дело Сагаева и другие (Sagayeva and Others) против России (жалобы N 22698/09 и 31189/11) англ. (Часть 2)

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III. Compliance with the exhaustion rule

  1. The parties’ submissions

 

  1. Government
  1. The Government argued that the applicants had failed to exhaust the domestic remedies as the investigations into the disappearances were still in progress. In addition, the applicants had failed to lodge appeals against the investigators’ decisions with the domestic courts or to claim civil damages.

 

  1. The applicants
  1. The applicants, referring to the Court’s case law, submitted that they were not obliged to pursue civil remedies and that lodging court complaints against the investigators would not have remedied the investigations’ shortcomings. They submitted that the only effective remedy — the criminal investigation — had proved to be ineffective.

 

  1. The Court’s assessment
  1. As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119 — 21, 24 February 2005). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. The objection in this regard is therefore dismissed.
  2. As regards criminal-law remedies, the Court observes that in a recent judgment it concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constituted a systemic problem and that criminal investigations were not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217).
  3. In such circumstances, and noting the absence over the years of any tangible progress in the criminal investigations into the abduction of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government was not effective in the circumstances.

 

  1. The Court’s assessment of the evidence and the establishment of the facts
  1. The parties’ submissions
  1. The Government
  1. The Government did not contest the essential facts underlying the two applications and pointed out that the abductions had taken place on different dates and in different districts of the Chechen Republic. They claimed that neither of the investigations had revealed information capable of proving that the applicants’ relatives had been detained by State agents. According to them, there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions and subsequent disappearances.

 

  1. The applicants
  1. The applicants submitted that it had been established «beyond reasonable doubt» that the men who had taken away their relatives in areas that were under the full control of the authorities had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation files, in so far as the latter had been disclosed by the Government. They also submitted that they had made a prima facie case that their relatives had been abducted by State agents and the essential facts underlying their complaints had not been challenged by the Government. In view of the absence of any news of their relatives for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, they asked the Court to consider their relatives dead.

 

  1. The Court’s assessment
  1. General principles
  1. A summary of the principles concerning the assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others, cited above §§ 39 — 96).

 

  1. Application of the principles to the present case

(a) Application no. 22698/09, Sagayeva v. Russia

  1. The witness statements collected by the applicant and the documents from the investigation file furnished by the Government confirm that her brother, Mr Khasan Sagayev, was abducted in Alkhan-Yurt on 8 August 2000 by a group of servicemen during a special operation (see, for example, paragraphs 8 — 9, 19, 22 and 27 above). In the light of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her relative was abducted by State agents in the circumstances set out by her.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.
  3. Bearing in mind the general principles set out above, the Court finds that Mr Khasan Sagayev was taken into custody by State agents on 8 August 2000. In view of the absence of any news of him since that date and the life-threatening nature of such detention, the Court also finds that Mr Khasan Sagayev may be presumed dead following his unacknowledged detention.

(b) Application no. 31189/11, Mukayevy v. Russia

  1. The witness statements collected by the applicants and the documents from the investigation file furnished by the Government, confirm that their son, Mr Rasul Mukayev, was abducted from home in Duba-Yurt on 3 December 2004 by a group of servicemen during a special operation (see, for example, paragraphs 34, 39, 40 and 45 above). In the light of all the material in its possession, the Court finds that the applicants have presented a prima facie case that their son was abducted by State agents in the circumstances set out by them.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. They had therefore failed to discharge their burden of proof.
  3. Bearing in mind the general principles set out above, the Court finds that Mr Rasul Mukayev was taken into custody by State agents on 3 December 2004. In view of the absence of any news of him since that date and the life-threatening nature of such detention, the Court also finds that Mr Rasul Mukayev may be presumed dead following his unacknowledged detention.

 

  1. Alleged violation of Article 2 of the Convention
  1. The applicants complained, under Article 2 of the Convention, that their relatives had disappeared after having been detained by State agents and that the domestic authorities had failed to carry out an effective investigation into either 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.

  1. 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.»

 

  1. The parties’ submissions
  1. The Government contended that the complaints should be rejected as manifestly ill-founded, as the applicants had failed to substantiate their allegations. The Government submitted that the domestic investigations had not revealed any evidence showing that the applicants’ relatives had been held under State control, or that they were dead. They claimed that all necessary steps were being taken to comply with the obligation to conduct an effective investigation.
  2. The applicants maintained their complaints.

 

  1. The Court’s assessment
  1. Admissibility
  1. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaints under Article 2 of the Convention must therefore be declared admissible.

 

  1. Merits

(a) Alleged violation of the right to life of the applicants’ relatives

  1. The Court has already found that in both the applications under examination, the applicants’ relatives may be presumed dead, following their unacknowledged detention by State agents. In the absence of any justification on the part of the Government, the Court finds that their deaths can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of both Mr Khasan Sagayev and Mr Rasul Mukayev.

(b) Alleged inadequacy of the investigations into the abductions

  1. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which occurred, in particular, in Chechnya between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 217). In both the cases at hand, as in many previous similar cases reviewed by the Court, the investigations have been ongoing for many years without generating any significant developments as regards identifying the perpetrators or establishing the fate of the applicants’ missing relatives. While the obligation to investigate effectively is one as to means rather than results, the Court notes that each set of criminal proceedings has been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123 — 25). Each was interrupted by numerous decisions to suspend the investigation, followed by significant periods of inactivity which further diminished the prospects of solving the crimes. No meaningful steps have been taken to identify and question the servicemen who might have witnessed, registered or participated in the operations.
  2. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Khasan Sagayev and Mr Rasul Mukayev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.

 

  1. Alleged violations of Articles 3, 5 and 13 of the Convention
  1. The applicants complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused to them by the disappearance of their relatives and the unlawfulness of their relatives’ detention. They also argued that, contrary to Article 13 of the Convention, there had been no domestic remedies available against the alleged violations, in particular those under Articles 2 and 3 of the Convention. Those Articles read, in so far as relevant:

Article 3

«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»

Article 5

«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;

  1. 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.
  2. 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.
  3. 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.
  4. 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.»

Article 13

«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.»

 

  1. The parties’ submissions
  1. The Government contested the applicants’ claims.
  2. The applicants reiterated their complaints.

 

  1. The Court’s assessment
  1. Admissibility
  1. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

 

  1. Merits
  1. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the «disappearance» of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006-XIII (extracts)).
  2. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).
  3. The Court reiterates its findings regarding the State’s responsibility for the abductions and the failure to carry out a meaningful investigation into the fates of the disappeared persons. It finds that the applicants, who are close relatives of the disappeared, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish which they suffered, and continue to suffer, as a result of their inability to ascertain the fate of their family members and of the manner in which their complaints have been dealt with.
  4. The Court also confirms that it has been established that the applicants’ relatives were detained by State agents — apparently without any legal grounds for or acknowledgement of such detention — and this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.
  5. The Court reiterates its findings of the general ineffectiveness of the criminal investigations in cases such as those under examination. In the absence of results ensuing from a criminal investigation, any other possible remedy becomes inaccessible in practice.
  6. The Court thus finds that the applicants in these cases did not have at their disposal an effective domestic remedy for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention.

 

VII. Application of Article 41 of the Convention

  1. 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.»

 

  1. Damage
  1. Application no. 22698/09, Sagayeva v. Russia
  1. The applicant, as a sister of Mr Khasan Sagayev, claimed 889,431 Russian roubles (RUB) (about 15,500 euros (EUR)) in respect of pecuniary damage for the loss of financial support from a family breadwinner. She based her calculations on the subsistence level provided for by the domestic law and the Ogden Actuary Tables.
  2. The applicant claimed EUR 100,000 in respect of non-pecuniary damage.
  3. The Government submitted that the applicant’s claim for pecuniary damage was unsubstantiated and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a family breadwinner. As regards the claim in respect of non-pecuniary damage, the Government stated that the amount of compensation should be determined on an equitable basis.

 

  1. Application no. 31189/11, Mukayevy v. Russia
  1. Each of the applicants, as the parents of Mr Rasul Mukayev, claimed RUB 863,857 (about EUR 15,000) in respect of pecuniary damage for the loss of financial support from a family breadwinner. The applicants based their calculations on the subsistence level provided for by the domestic law and the Ogden Actuary Tables.
  2. The applicants claimed EUR 100,000 jointly in respect of non-pecuniary damage.
  3. The Government submitted that the applicants’ claim for pecuniary damage was unsubstantiated and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a family breadwinner. As regards the claim in respect of non-pecuniary damage, the Government stated that the amount of compensation should be determined on an equitable basis.

 

  1. Costs and expenses
  1. The applicants in both cases were represented by the Stichting Russian Justice Initiative (SRJI)/Astreya. The aggregated claims in respect of costs and expenses relating to the applicants’ legal representation amounted to EUR 4,144 in Sagayeva (no. 22698/09) and EUR 4,204 in Mukayevy (no. 31189/11). The claims included the drafting of legal documents submitted to the Court, and administrative and postal expenses. The applicants submitted copies of their legal representation contracts and invoices, including a breakdown of the costs incurred.
  2. In respect of both claims the Government submitted that the amounts claimed were excessive, as the time and effort spent on the preparation of the applicants’ submissions did not correspond to the amounts claimed, and invited the Court to reduce them «proportionally».

 

  1. The Court’s assessment
  1. The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. The Court further finds that the loss of earnings applies to close relatives of disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).
  2. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and make a financial award.
  3. As to costs and expenses, the Court must first establish whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).
  4. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the amount of EUR 60,000 in respect of non-pecuniary damage to the applicant in Sagayeva (no. 22698/09) and the amount of EUR 10,000 in respect of pecuniary damage to each of the applicants and EUR 60,000 in respect of non-pecuniary damage to the applicants jointly in Mukayevy (no. 31189/11), plus any tax that may be chargeable to the applicants on those amounts.
  5. As for the costs and expenses, based on the parties’ submissions and the principles referred to above, the Court awards EUR 4,144 to the applicant in Sagayeva (no. 22698/09) and EUR 4,204 to the applicants in Mukayevy (no. 31189/11). The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as identified by the applicants.

 

  1. Default interest
  1. The Court considers it appropriate that the default interest rate 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,

  1. Decides to join the applications;
  2. Declares the applications admissible;
  3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Khasan Sagayev and Mr Rasul Mukayev;
  4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance of the applicants’ relatives;
  5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering;
  6. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention;
  7. Holds there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;
  8. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement, save for the payment of costs and expenses:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the first applicant in Mukayevy (no. 31189/11);

(ii) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the second applicant in Mukayevy (no. 31189/11);

(iii) EUR 60,000 (sixty thousand euros) to the applicant in Sagayeva (no. 22698/09), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iv) EUR 60,000 (sixty thousand euros) to the applicants jointly in Mukayevy (no. 31189/11), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(v) EUR 4,144 (four thousand one hundred forty four euros), plus any tax that may be chargeable to the applicant in Sagayeva (no. 22698/09), in respect of costs and expenses, the net award to be paid into the representative’s bank account, as identified by the applicant;

(vi) EUR 4,204 (four thousand two hundred and four euros), plus any tax that may be chargeable to the applicants in Mukayevy (no. 31189/11), in respect of costs and expenses, the net award to be paid into the representative’s bank account, as identified by 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;

  1. Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President
Stephen PHILLIPS Registrar

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