Постановление ЕСПЧ от 30.01.2014 «Дело «Микиева и другие (Mikiyeva and Others) против Российской Федерации» (жалобы N 61536/08, 6647/09, 6659/09, 63535/10 и 15695/11) [англ.] Часть 2

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  1. Application No. 15695/11 Esuyev v. Russia
  1. Abduction of Mr Mansur Esuyev

 

  1. At the material time Mr Mansur Esuyev lived with his family, including his father, the applicant, in the settlement of Verkhniy Gerzel in the Gudermes district of Chechnya. The following account of the events is based on the applicant’s submissions.
  2. On 11 January 2003 at around 4 a.m. a group of masked servicemen in camouflage uniforms armed with machineguns arrived at the applicant’s house in three UAZ cars, a white VOLGA car and a GAZEL minivan. The intruders broke inside, beat up the family members, including Mr Mansur Esuyev, and took him away to an unknown destination.
  3. The applicant conducted his own inquiry and learnt that Mr Mansur Esuyev had been taken to the Novogroznenskiy police station, then to the sixth station of the Gudermes ROVD and after that to the main military base in Khankala.
  4. The applicant has not seen Mr Mansur Esuyev since his abduction on 11 January 2003.

 

  1. Official investigation

 

  1. The Government submitted copies of documents from criminal case file No. 32133 opened into the abduction of Mr Mansur Esuyev. The relevant information may be summarised as follows.
  2. On 27 October 2003 the applicant complained to the Gudermes district prosecutor’s office about his son’s abduction.
  3. On 6 November 2003 the Gudermes district prosecutor’s office opened criminal case No. 32133 under Article 126 of the Criminal Code (kidnapping), granted victim status to the applicant and questioned him. The investigator also questioned Mr Mansur Esuyev’s wife and his brother, who had also witnessed the abduction. All three witnesses gave statements similar to the applicant’s submissions before the Court.
  4. On 17 November 2003 the investigator asked the Gudermes FSB to provide information about Mr Mansur Esuyev’s possible arrest by their agents and his involvement in illegal armed units. No reply was given.
  5. In January 2005 the investigator examined the crime scene and questioned the applicant’s relatives. He also forwarded information requests to various authorities which did not yield any pertinent information.
  6. On 28 February 2008 the investigator examined the log book of the Gudermes ROVD. According to the register, Mr Mansur Esuyev had not been taken to the ROVD’s premises between 1 January and 1 April 2003.
  7. On 3 March 2008 the investigator again questioned the applicant, his relatives and a few of his neighbours.
  8. The investigation was suspended and resumed on several occasions and is still pending.

 

  1. The applicant’s contact with the national authorities

 

  1. From the documents submitted it is clear that since 2003 the applicant has regularly contacted various authorities asking for assistance in the search for his son and inquiring about the progress of the investigation.
  2. In March 2010 the applicant complained to the Gudermes District Court, alleging that the investigation had been ineffective and protracted. On 8 June 2010 his complaint was rejected owing to the resumption of the investigation on 2 June 2010.

 

  1. Relevant domestic law and international materials

 

  1. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (Nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43 — 59 and §§ 69 — 84, 18 December 2012).

 

THE LAW

  1. Joinder of the applications

 

  1. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

 

  1. The Government’s preliminary objections
  1. Locus standi
  1. The parties’ submissions

 

  1. Ms Roza Batariyeva, the applicant in application Batariyeva v. Russia (No. 63535/10), died on 15 April 2012. Mr Bekkhan (also spelt as Bekkha) Batariyev, her son and the brother of the disappeared Mr Zelimkhan Batariyev, expressed his wish to pursue the proceedings before the Court in her stead.
  2. The Government contended that Mr Bekkhan Batariyev did not have standing in the proceedings before the Court owing to his «lack of legitimate interest in the examination of the case». In particular, they pointed out that Mr Bekkhan Batariyev had «…neither witnessed his brother’s abduction… nor been involved in the investigation of the criminal case initiated into the abduction…»

 

  1. The Court’s assessment

 

  1. The Court reiterates that the word «victim» in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see v Switzerland, 15 June 1992, § 34, Series A No. 238). The Convention institutions have always and unconditionally considered in their case-law that the parent, sibling or nephew of a person whose death is alleged to engage the responsibility of the respondent Government can claim to be the victim of an alleged violation of Article 2 of the Convention, even where closer relatives, such as the deceased person’s children, have not submitted applications (see Velikova v. Bulgaria (dec.), No. 41488/98, 18 May 1999, with further references).
  2. The Court also notes that in a number of cases in which an applicant died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing a wish to pursue the proceedings before the Court. It has done so most frequently in cases which primarily involved pecuniary, and, for this reason, transferable claims. However, the question of whether such claims are transferable to the individuals seeking to pursue an application is not the exclusive criterion. In fact, human rights cases before the Court generally also have a moral dimension, and people close to an applicant may have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see, among other authorities, v. Slovakia, No. 74456/01, § 26, 17 May 2005, and v. Lithuania, No. 34578/97, § 41, ECHR 2000-IX).
  3. Having regard to the above, the Court accepts that the applicant’s son has a legitimate interest in pursuing the application in her stead. It will therefore continue dealing with the case at his request.

 

  1. Compliance with the six-month rule
  1. The parties’ submissions

 

(a) Government

  1. In their observations in respect of all the applications, the Government submitted that the applicants had failed to comply with the six-month rule by lodging their applications with the Court after unreasonably long periods of time since the abductions and the institution of the criminal proceedings. Referring to the case of Varnava and Others v. Turkey [GC] (Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009), they noted that a «certain amount of diligence and initiative» was required from those applying to the Court and that in the cases at hand the applicants had failed to provide explanations for their delay in applying to Strasbourg.

(b) The applicants

  1. The applicants argued that they had complied with the six-month rule and there had been no excessive and unexplained delays in the submission of their applications to the Court.
  2. The applicants stated that after the initiation of the criminal investigations they had had no reason to doubt their effectiveness. They pointed out that the armed conflict in Chechnya had led them to believe that delays in the investigation were inevitable. Moreover, owing to their poor command of Russian, their lack of legal knowledge and lack of funds to hire a lawyer, they had been unable to assess the effectiveness of the investigation in the absence of domestic provisions for free legal assistance to victims of enforced disappearances. As soon as the applicants had received legal aid, they had realised that the investigations were ineffective owing to the delays in their completion and they had applied to the Court. Also referring to the Varnava case, they argued that the six-month rule did not apply to continuing situations such as cases of enforced disappearances.

 

  1. The Court’s assessment

 

(a) General principles

  1. The Court reiterates that the purpose of the six-month rule is to promote legal certainty, to ensure that cases are dealt with within a reasonable time and to protect the parties from uncertainty for a prolonged period of time. The rule also provides the opportunity to ascertain the facts of the case before memory of them fades away with time (see Abuyeva and Others v. Russia, No. 27065/05, § 175, 2 December 2010).
  2. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. In its absence, the period runs from the date of the acts or measures complained of. Where an applicant avails himself of an existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the six-month time-limit is calculated from the date when the applicant first became, or ought to have become, aware of those circumstances (see, among others, Zenin v. Russia (dec.), No. 15413/03, 24 September 2009).
  3. In cases concerning disappearances, unlike in cases concerning ongoing investigations into the deaths of applicants’ relatives (see, for example, Elsanova v. Russia (dec.), No. 57952/00, 15 November 2005, and Narin v. Turkey, No. 18907/02, § 50, 15 December 2009), the Court has held that taking into account the uncertainty and confusion typical of such situations, the nature of the ensuing investigations implies that the relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their proceedings, even if those proceedings are sporadic and plagued by problems. As long as there is some meaningful contact between families and the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a time when the relatives must realise that no effective investigation has been, or will be, provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case. Where more than ten years have elapsed since the incident, the applicants have to justify such a delay in lodging their application with the Court (see Varnava, cited above, §§ 162 — 63).
  4. Applying the Varnava principles, the Court recently found in the case of Er and Others v. Turkey (No. 23016/04, §§ 55 — 58, 31 July 2012) that the applicants, who had waited for a period of almost ten years after the disappearance of their relative before lodging their application, had complied with the six-month rule because an investigation was being conducted at the national level. The Court reached a similar conclusion in another case, where the domestic investigation into the events had been pending for more than eight years and where the applicants were doing all that could be expected of them to assist the authorities (see and Others v. Turkey, No. 24589/04, § 49, 26 February 2013).
  5. By contrast, the Court has declared inadmissible applications where the applicants waited for more than ten years to lodge their applications with the Court, and where there had been, for a long time, no evidence allowing them to believe that the investigation would be effective. For instance, in the case of and Others v. Turkey ((dec.), No. 21099/06, 10 July 2012), the applicants waited for four years after the disappearance before lodging an official complaint with the competent investigating authorities and for eleven-and-a-half years before bringing their application to Strasbourg; in the case of Findik and Omer v. Turkey ((decs.), Nos. 33898/11 and 35798/11, 9 October 2012), the applications were brought to Strasbourg more than fifteen years after the events; and in the case of and Duman v. Turkey ((dec.), No. 40787/10, 9 October 2012), the applicants applied to Strasbourg twenty-three years after the disappearance. In those cases, as in the case of  v. Turkey (No. 7050/05, §§ 41 — 42, 1 February 2011), where the applicants complained to Strasbourg more than twelve years after the disapperance, the Court rejected their complaints under Article 2 of the Convention as out of time for failure to demonstrate any concrete advance in the domestic investigation that would justify their delay of more than ten years.

(b) Application of the principles to the present case

  1. Turning to the circumstances of the cases at hand, the Court notes that the applicants lodged their complaints with the Court within a period ranging from four years and seven months after the disappearance in the case of Kosumova and others (No. 6659/09) to nine years and five months in the case of Batariyeva (No. 63535/10). In each of the cases the investigations were formally pending at the time when the applications were lodged before the Court. The criminal proceedings in all the cases were suspended and resumed on several occasions at various time intervals throuhgout the periods concerned. Each and every time the investigations were suspended they were resumed by a supervising prosecutor, who criticised the conduct of the investigation and ordered necessary steps to be taken, and the applicants were often, although not always, informed thereof. They, in turn, maintained reasonable contact with the authorities, cooperated with the investigation and, where appropriate, took steps to inform themselves of the progress of the proceedings and to speed them up, in the hopes of a more effective outcome.
  2. Having examined the documents submitted by the parties, the Court finds that the conduct of each of the applicants the investigation has been determined not by their perception of the remedy as ineffective, but rather by their expectation that the authorities would, of their own motion, provide them with an adequate answer in the face of their serious complaints. They furnished the investigating authorities with timely and sufficiently detailed accounts of their relatives’ abductions and cooperated with them. They thus reasonably expected further substantive developments from the investigation. It could not be said that they failed to show the requisite diligence by waiting for the pending investigation to yield results (see, mutatis mutandis, Abuyeva and Others, cited above, § 179).
  3. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the periods in question in each of the five cases, and that the applicants did all that could be expected of them to assist the authorities (see Varnava and Others, cited above, § 166, and Er and Others, cited above, § 60). In the light of the foregoing, the Court dismisses the Government’s objection as to the admissibility of these complaints based on the six-month time-limit.

 

III. The Court’s assessment of the evidence and establishment of the facts

 

  1. The parties’ submissions
  1. The Government

 

  1. The Government did not contest the essential facts underlying each application. However, they noted that some of the applicants had not been consistent in describing details such as the abductors’ uniforms or language and that the abductions had taken place on various dates and in different districts of the Chechen Republic. The Government further pointed out that other people who had been «apprehended» along with some of the applicants’ relatives on the same dates had been released and returned home. At the same time, they claimed that none of the investigations had obtained information 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 abductions and deaths. To this end the Government referred to the application Ibragimova v. Russia (No. 6647/09), where the security service had informed the investigators that until April 2006 the applicant’s relative had been a member of illegal armed groups and, therefore, he could not have been abducted in 2003.

 

  1. The applicants

 

  1. The applicants submitted that it had been established «beyond reasonable doubt» that the men who had taken away their relatives 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 they had been disclosed by the Government. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents and that 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 Chechnya at the relevant time, they asked the Court to consider their relatives dead.

 

  1. The Court’s assessment
  1. General principles

 

  1. The Court shall examine the applications at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. «the former Yugoslav Republic of Macedonia» [GC], No. 39630/09, §§ 151 — 53, ECHR-2012).
  2. The Court has addressed a whole series of cases concerning allegations of disappearances in the Chechen Republic. Applying the above-mentioned principles, it has concluded that it if applicants make a prima facie case of abduction by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it would then be for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this would entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, No. 26974/06, §§ 77 — 81, 17 June 2010; Movsayevy v. Russia, No. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, No. 49379/09, § 71, 3 May 2012).
  3. The Court has also found in many cases concerning disappearances in Chechnya that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in the region which have come before it, the Court has found that in the particular context of the conflict in Chechnya, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life-threatening (see, among many others, Bazorkina v. Russia, No. 69481/01, 27 July 2006; Imakayeva v. Russia, No. 7615/02, ECHR 2006-XIII (extracts); Luluyev and Others v. Russia, No. 69480/01, ECHR 2006-VIII (extracts); Baysayeva v. Russia, No. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, No. 40464/02, 10 May 2007; Alikhadzhiyeva v. Russia, No. 68007/01, 5 July 2007; and Dubayev and Bersnukayeva v. Russia, Nos. 30613/05 and 30615/05, 11 February 2010).
  4. The Court has made findings of presumptions of deaths in the absence of any reliable news about the disappeared persons for periods ranging from four years (see Askhabova v. Russia, No. 54765/09, § 137, 18 April 2013) to more than ten years.

 

  1. Application of the principles to the present cases

 

(a) Application No. 61536/08 Mikiyeva and Menchayeva v. Russia

  1. A number of witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 22 and 25 above), demonstrate that the applicants’ relative, Mr Isa Mikiyev, was abducted on 3 May 2001 by a group of armed servicemen during a special operation in Tsa-Vedeno. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof.
  3. Bearing in mind the general principles enumerated above, the Court finds that Mr Isa Mikiyev was taken into custody by State agents on 3 May 2001 in Tsa-Vedeno. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 132 above), the Court also finds that Mr Isa Mikiyev may be presumed dead following his unacknowledged detention.

(b) Application No. 6647/09 Ibragimova v. Russia

  1. Numerous witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 37 and 39 above), demonstrate that the applicant’s relative, Mr Artur Ibragimov, was abducted on 16 July 2003 by a group of armed servicemen in Shali. In view of all the materials 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 as set out by her.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof.
  3. As far as the Government’s reference to the letter issued by the FSB is concerned, the Court notes the following. When in 2003 and 2004 the investigators asked the FSB whether it had any information concerning Mr Artur Ibragimov and his involvement in illegal activities (see paragraphs 42 and 47 above), the agency replied in the negative. It was only in November 2008 that they wrote to the investigation alleging that between 2003 and April 2006 Mr Artur Ibragimov had been involved in illegal armed groups. This information was subsequently verified by the investigation into the abduction but was not confirmed (see paragraphs 50 — 51 above). In such circumstances, the Court does not consider the Government’s reference to this information to be a satisfactory and convincing explanation capable of shifting the burden of proof.
  4. Bearing in mind the general principles enumerated above, the Court finds that Mr Artur Ibrahimov was taken into custody by State agents on 16 July 2003 in Shali. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 132 above), the Court also finds that Mr Artur Ibragimov may be presumed dead following his unacknowledged detention.

(c) Application No. 6659/09 Kosumova and Others v. Russia

  1. Several witness statements collected by the applicants, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 69 above), demonstrate that the applicants’ relative, Mr Ramzan Shaipov, was abducted on 8 May 2004 by a group of armed servicemen in Chiri-Yurt. In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their relative was abducted by State agents in the circumstances as set out by them.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof.
  3. Bearing in mind the general principles enumerated above, the Court finds that Mr Ramzan Shaipov was taken into custody by State agents on 8 May 2004 in Chiri-Yurt. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 132 above), the Court also finds that Mr Ramzan Shaipov may be presumed dead following his unacknowledged detention.

(d) Application No. 63535/10 Batariyeva v. Russia

  1. A number of witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraphs 86 and 90 above), demonstrate that the applicant’s son, Mr Zelimkhan Batariyev, was abducted on 4 May 2001 by a group of armed servicemen during a special operation in Grozny. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that her son was abducted by State agents in the circumstances as set out by her.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof.
  3. Bearing in mind the general principles enumerated above, the Court finds that Mr Zelimkhan Batariyev was taken into custody by State agents on 4 May 2001 in Grozny. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 132 above), the Court also finds that Mr Zelimkhan Batariyev may be presumed dead following his unacknowledged detention.

(e) Application No. 15695/11 Esuyev v. Russia

  1. Numerous witness statements collected by the applicant, along with the documents from the investigation file furnished by the Government (see, for example, paragraph 102 above), demonstrate that the applicant’s son, Mr Mansur Esuyev, was abducted on 11 January 2003 by a group of armed servicemen in Verkhniy Gerzel. In view of all the materials in its possession, the Court finds that the applicant has presented a prima facie case that his son was abducted by State agents in the circumstances as set out by him.
  2. The Government did not provide a satisfactory and convincing explanation for the events in question. Therefore, they failed to discharge their burden of proof.
  3. Bearing in mind the general principles enumerated above, the Court finds that Mr Mansur Esuyev was taken into custody by State agents on 11 January 2003 in Verkhniy Gerzel. In view of the absence of any news of him since that date and the life-threatening nature of such detention (see paragraph 132 above), the Court also finds that Mr Mansur Esuyev may be presumed dead following his unacknowledged detention.

 

  1. Conclusions

 

  1. The Court finds that in all of the cases presently before it the applicants’ relatives were abducted by armed men in uniforms, displaying behaviour characteristic of security operations. Their behaviour and appearance, their ability to pass through roadblocks and to cordon off areas, along with their use of vehicles, lead the Court to conclude that, in all probability, they could be none other than State servicemen. The applicants’ allegations are supported by the witness statements collected by them and by the domestic investigations. In their submissions to the authorities the applicants maintained that their relatives had been abducted by State agents. The domestic investigations accepted as fact the versions of events presented by the applicants and took steps to check whether State servicemen had been involved in the abductions.
  2. In summary, the facts of all the applications contain sufficient evidence to enable the Court to make findings about the carrying out of security operations and thus about the State’s exclusive control over the detainees (see, among many others, Aslakhanova and Others, cited above, § 114). The Government’s arguments are in contradiction to the evidence reviewed by the Court and insufficient to discharge them of the burden of proof which has been shifted to them in such cases.
  3. The detention in life-threatening circumstances of Mr Isa Mikiyev, Mr Artur Ibragimov, Mr Ramzan Shaipov, Mr Zelimkhan Batariyev and Mr Mansur Esuyev, together with the long absence of any news of them, leads the Court to conclude that they may be presumed dead.

 

  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 effective investigations into the matter. Article 2 reads as follows:

«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 on one hand that Article 2 of the Convention was not applicable to the applicants’ complaints concerning the disappearance of their relatives and that their complaints under this head must be examined under Article 5 of the Convention. To this end they referred to the case of Kurt v. Turkey, 25 May 1998, §§ 101 — 09, Reports of Judgments and Decisions 1998-III. On the other hand, they submitted that the complaints should be rejected as manifestly ill-founded, as the applicants had failed to substantiate their allegations before the Court. Further, the Government submitted that the domestic investigations had obtained no evidence that the applicants’ relatives had been held under State control or that they were dead. They further noted that the mere fact that the investigative measures employed had not produced any specific results, or had given only limited ones, did not mean that there had been any omissions on the part of the investigative authorities. 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. It also decides to join to the merits the issue of applicability of Article 2 of the Convention (see Khadayeva and Others v. Russia, No. 5351/04, § 114, 12 March 2009). 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 notes at the outset that it is undisputed by the parties that the whereabouts of the applicants’ relatives had been unaccounted for periods ranging between four-and-a-half and nine years from the events to the lodging of the applications with the Court. The question arises whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situations at hand.
  2. The Court has previously held that Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities (see the Kurt judgment cited above, § 124). Whether a failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on specific evidence, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (see v. Turkey [GC], No. 23657/94, § 85, ECHR 1999-IV, and Ertak v. Turkey, No. 20764/92, § 131, ECHR 2000-V).
  3. In this connection, the Court notes that the Government denied that the applicants’ relatives had been detained by State agents or had been under the control of the authorities after abduction. Therefore, the Government’s argument concerning the applicability of Article 5 of the Convention instead of Article 2 is inconsistent. However, leaving aside the contradictory nature of the Government’s position in this regard and assuming that the applicants’ abducted relatives were under the control of State agents after abduction, then the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may, along with other elements of circumstantial evidence before the Court, provide grounds to conclude that the person concerned is to be presumed dead. In this respect the Court considers that such a situation gives rise to issues which go beyond a mere irregular detention in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, cited above, § 86, and v. Turkey, No. 23531/94, § 83, ECHR 2000-VI). Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be rejected.
  4. Based on the above and noting that it has been already found that in all of the applications under examination that the applicants’ relatives may be presumed dead, following their unacknowledged detention by State agents, the Court finds, in the absence of any justification put forward by the Government, 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 Mr Isa Mikiyev, Mr Artur Ibragimov, Mr Ramzan Shaipov, Mr Zelimkhan Batariyev and Mr Mansur Esuyev.

(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 have occurred in Chechnya between 1999 and 2006, and that such a situation constitutes a systemic problem in Convention terms (see Aslakhanova and Others, cited above, § 217). In the cases at hand, as in many previous similar cases reviewed by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives. While the obligation to investigate effectively is one of means and not of results, the Court notes that each set of criminal proceedings has been plagued by a combination of the defects such as those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123 — 25).

162. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearances and deaths of Mr Isa Mikiyev, Mr Artur Ibragimov, Mr Ramzan Shaipov, Mr Zelimkhan Batariyev and Mr Mansur Esuyev. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

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