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FIRST
SECTION
CASE OF
USTARKHANOVA v. RUSSIA
(Application
no. 35744/05)
JUDGMENT
STRASBOURG
26 November 2009
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Ustarkhanova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 5 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35744/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Ms Khava Ustarkhanova on
3 October 2005.
- The
applicant was represented by lawyers of the Stichting Russian Justice
Initiative (“SRJI”), an NGO based in the Netherlands with
a representative office in Russia. The Russian Government (“the
Government”) were represented by Mr A.
Savenkov, First Deputy Minister of Justice, and,
subsequently,
by Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
18 March 2008 the Court decided to apply
Rule 41 of the Rules of Court and to grant priority treatment to
the application and to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having
considered the Government’s objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Achkhoy-Martan, Chechnya. She
is the mother of Balavdi Ustarkhanov, who was born in 1982.
A. Disappearance of Balavdi Ustarkhanov
1. The applicant’s account
- The
events described in the application took place in Zakan-Yurt, in the
Achkhoy-Martan district of Chechnya. At the
material time the village of Zakan-Yurt was under the full control of
the Russian federal forces. Military checkpoints manned by Russian
servicemen were located on the roads leading to and from the
settlement. The area was under a curfew.
- At
the material time the applicant and her son Balavdi Ustarkhanov lived
in Achkhoy-Martan, Chechnya. On 31 December 2002 Balavdi Ustarkhanov
went to Zakan-Yurt to celebrate the New Year holiday with his friend,
Mr Magomed M. On the same day he had a fight with local residents and
received several cuts. He was taken to a local hospital where his
cuts were treated and a bandage was placed around his head. Balavdi
Ustarkhanov subsequently decided to stay with his friend’s
family in Zakan Yurt for several days.
- On
the night of 6 to 7 January 2003 (in the submitted documents the date
was also referred to as the night of 6 January 2003) Balavdi
Ustarkhanov stayed at Mr Magomed M.’s house at 72 Shkolnaya
Street in Zakan-Yurt. The household consisted of two dwellings; one
belonged to Mr Magomed M. and his family, and the other to the
family of his uncle, Mr Makhadi M.
- At
about 6 a.m. a large group of armed men in camouflage uniforms broke
into the household. Some of them were wearing masks. Those who were
not wearing masks were of Slavic appearance. The
men neither introduced themselves nor produced any documents. They
spoke unaccented Russian and were equipped with portable radio sets.
The residents of the household thought that they were Russian
military servicemen.
- The
servicemen told everyone that they were looking for a person who was
on the authorities’ wanted list. They conducted an
identity check and took away the passports of Mr Makhadi M. and Mr
Magomed M. On completion of the check the servicemen were about to
leave when one of them asked Balavdi Ustarkhanov why his head was
bandaged. The latter explained that he had arrived at his friend’s
house for the holidays, that he had been hit with a sharp object and
that his cuts had been treated at the local hospital. The serviceman
then called someone via his portable radio set and reported that
there was a man in the house who had not been registered as a
resident and that his head was bandaged. The officer was ordered to
take Balavdi Ustarkhanov away.
- When
Balavdi Ustarkhanov’s friends asked the servicemen why they
were taking him away, the officers said that they were just going to
check what Balavdi was doing in the house. The servicemen took
Balavdi Ustarkhanov outside without shoes or warm clothing. There
they put him in one of the military vehicles parked next to the
house: there were a military UAZ car, a minivan and an APC (armoured
personnel carrier). The vehicles then drove away in the direction of
the local checkpoint, manned by the Russian military forces.
- The
passport of Mr Makhadi M., which had been taken away by the
abductors, was found some time later in the vicinity of Zakan-Yurt,
on the road to Grozny, across the street from the Russian military
checkpoint.
- According
to Mr Magomed M.’s neighbour, Mr I.A., who lived across the
street, at about 5 a.m. on 7 January 2003 he and his relatives had
seen from their windows two vehicles and a large group of armed
servicemen, who spoke unaccented Russian. Some of them wore helmets;
they were equipped with portable radio sets. The servicemen were
standing next to their house and talking. One of the officers noticed
the family car parked in the yard and asked Mr I.A’s
granddaughter whose car it was. When the girl responded that the car
belonged to her uncle, the son of Mr I.A., the servicemen went
into the house, dragged Mr I.A.’s son outside and started
beating him with truncheons. Mr I.A. started screaming for help and
begging the servicemen not to kill his son. Then one of them called
someone via his radio set and said that they had apprehended three
men, one of whom was not a local resident. Mr I.A. heard someone on
the radio instructing the servicemen to leave the locals alone, to
take the stranger with the wounded head and to leave the place.
According to Mr I.A., he saw from his house a GAZ vehicle and a UAZ
vehicle parked next to the house of his neighbour Mr Magomed M. After
the servicemen left, Mr I.A. learned from his neighbours that the
servicemen had taken away their guest, Balavdi Ustarkhanov. Mr I.A.
was not questioned by the authorities about the events.
- According
to a relative of Mr Magomed M., Ms B.M., at about 5 a.m. on 7
January 2003 she had seen a group of armed military servicemen
entering the house of her relative Mr Magomed M., which was situated
in the same yard. The servicemen were in camouflage uniforms; they
spoke unaccented Russian and used portable radio sets. She heard the
servicemen explaining to someone by radio that there was a person in
the house who had not been registered as a resident and that this man
had been wounded in the head. The response received by the servicemen
was: “Take him and leave”. When the servicemen were
leaving the house she heard the noise of military vehicles. Many
local residents had gathered in the yard shortly after the abduction.
Ms B.M. was not questioned by the authorities about the events.
- According
to the applicant, a number of other witnesses to the abduction
refused to provide statements to the Court out of fear for their
safety and that of their relatives.
- In
support of her statement, the applicant submitted an account by Ms
B.M. dated 31 August 2008 and an account by Mr I.A. dated 31 August
2008.
2. Information submitted by the Government
- The
Government did not challenge most of the facts as presented by the
applicant. According to their submission “...the reason for the
opening of the criminal case was the complaint of Kh. Ustarkhanova
received by the Achkhoy-Martan district department of the interior on
7 January 2003, according to which at about 6 a.m. on the night
between 6 and 7 January 2003 unidentified armed men in camouflage
uniforms and masks had taken away her son B. Ustarkhanov from a house
at 72 Shkolnaya Street in Zakan-Yurt in the Achkhoy-Martan district
of Chechnya”.
B. The search for Balavdi Ustarkhanov and the official
investigation into his abduction
1. The applicant’s account
- In
the morning of 7 January 2003 Mr Magomed M. informed the applicant
about the abduction of Balavdi Ustarkhanov. On the same day
the applicant went to the Achkhoy-Martan district department of the
interior (the Achkhoy-Martan ROVD) and the Achkhoy-Martan district
prosecutor’s office (the district prosecutor’s office)
and complained about her son’s abduction.
- On
21 January 2003 the district prosecutor’s office instituted
an investigation into the abduction of Balavdi Ustarkhanov
under Article 126 § 2 of the Criminal Code (aggravated
kidnapping). The case file was given number 44011.
- On
23 January 2003 the district prosecutor’s office granted the
applicant victim status in the criminal case.
- On
21 March 2003 the investigators suspended the investigation in the
criminal case for failure to establish the identities of the
perpetrators.
- On
a number of occasions, that is on 22 March, 13 and 24 June, 17 July
and on 25 August 2003, in January, 3 April, 14 May and 7 June 2004
and 16 July 2005 the Chechnya and the district prosecutors’
offices informed the applicant that the investigation in the criminal
case had been suspended for failure to establish the identities of
the perpetrators and that operational-search measures aimed at
identifying the culprits were under way.
- On
12 May 2003 the military prosecutor’s office of the United
Group Alignment (the military prosecutor’s office of the UGA)
forwarded the applicant’s complaint about Balavdi Ustarkhanov’s
abduction to the military prosecutor’s office of military unit
no. 20102.
- On
7 June and 15 August 2003, 22 April, 31 May and 29 December 2004, 10
June and 22 July 2005 the Chechnya prosecutor’s office
forwarded the applicant’s complaints to the district
prosecutor’s office for examination.
- On
11 June and 20 August 2003 the military prosecutor’s office of
military unit no. 20102 informed the applicant that her
complaints did not contain any information demonstrating the
involvement of Russian military forces in the abduction of Balavdi
Ustarkhanov.
- On
15 July 2003 the Chief Military Prosecutor’s office forwarded
the applicant’s complaint to the Chechnya prosecutor’s
office.
- On
2 February 2004 the military prosecutor’s office of the UGA
informed the applicant that her complaint had been examined and the
theory of the involvement of the Russian military forces in the
abduction of Balavdi Ustarkhanov had not been confirmed.
- Upon
the applicant’s request, on 24 February 2004 the interim
Chechnya military commander requested the military commander of the
Achkhoy-Martan district (the district military commander) to take
measures to establish the whereabouts of Balavdi Ustarkhanov.
- On
13 April 2004 the Department of the Prosecutor General’s office
in the Southern Federal Circuit informed the applicant that her
request had been forwarded to the Chechnya prosecutor’s office.
- On
20 November 2004 the applicant wrote to the district prosecutor’s
office. She stated that her son had been abducted by a group of armed
men who arrived in an APC. The applicant expressed her version of the
events, stating that those who had abducted her son must have
belonged to the State power structures. She requested to be provided
with information concerning the progress of the investigation and
asked for the proceedings to be resumed.
- On
11 July 2005 the Chechnya military commander requested the district
military commander to take measures to establish the whereabouts of
Balavdi Ustarkhanov.
- According
to the applicant, the investigators failed to question the neighbours
of Mr Magomed M. who lived across the street from the crime scene and
who had witnessed Balavdi Ustarkhanov being taken away in military
vehicles.
2. Information submitted by the Government
- The
Government submitted that on 21 January 2003 the district
prosecutor’s office had opened criminal case no. 44011
into the abduction of Balavdi Ustarkhanov under Article 126 § 2
of the Criminal Code (aggravated kidnapping). The applicant was
informed of this on 23 January 2003.
- On
21 January 2003 the investigators examined the crime scene at
72 Shkolnaya Street in Zakan-Yurt. Nothing was collected from
the scene.
- On
23 January 2003 the applicant was granted victim status in the
criminal case and questioned. She stated that she lived in
Achkhoy-Martan. On 30 December 2002 her son Balavdi Ustarkhanov had
gone to visit his friends, the family of Mr Magomed M., in
Zakan-Yurt. On 3 January 2003 she had been informed that on the night
between 31 December 2002 and 1 January 2003 her son had been
involved in a fight with local teenagers, as a result of which he had
sustained a head injury. On the same date, 3 January 2003, the
applicant had gone to Zakan-Yurt and taken her son to a hospital,
where it was established that he had sustained concussion. The family
of Magomed M. was troubled by the fact that Balavdi had received the
head injury while he was their guest and they therefore asked him to
stay with them until he felt better. The applicant agreed and
returned to Achkhoy-Martan, while her son remained at the friends’
house. On 7 January 2003 Mr Makadi M. had arrived at her house
and told her about the abduction of Balavdi by unidentified armed men
in camouflage uniforms and masks, who had failed to explain the
reasons for their actions. The investigators questioned the applicant
again on 28 February 2003; no information was submitted by the
Government concerning the content of the statement given on that
date.
- On
31 January 2003 the investigators questioned Mr Makhadi M., who
stated that he lived at 72 Shkolnaya Street in Zakan-Yurt; the
household comprised two dwellings in one yard: his house and the
house of his nephew, Mr Magomed M. At the end of December 2002
Balavdi Ustarkhanov had arrived at Magomed M.’s house to
celebrate the holidays. On 7 January 2003 a group of about ten
unidentified armed men had broken into their yard. The men were
wearing camouflage uniforms and masks. At first they went into
Magomed M.’s house, and then came into his house. The men, who
spoke unaccented Russian, checked everyone’s passports and took
away his passport. After the identity check the men had left with
Balavdi Ustarkhanov in an unknown direction. At some later point he
found out that the men had arrived at his house in a grey UAZ vehicle
and a tented ZIL lorry. According to the witness, he had complained
about the abduction of Balavdi Ustarkhanov to the Achkhoy-Martan ROVD
and informed the latter’s mother.
- On
10 February 2003 the investigators questioned Mr Magomed M., who
stated that he lived at 72 Shkolnaya Street in Zakan-Yurt, in the
same household as his uncle Mr Makhadi M. In 2000 he had lived
temporarily in Achkhoy-Martan as a forced migrant, where he had
befriended a local resident, Balavdi Ustarkhanov. At the end of
December 2002 Balavdi had arrived at his home for a visit. On the
night between 31 December 2002 and 1 January 2003 he and Balavdi
had been involved in a fight between local youths. As a result
Balavdi had received head injuries from a heavy object. He had asked
Balavdi to stay in his house until he felt better. At about 6 a.m.
on 7 January 2003 a group of about ten armed men in camouflage
uniforms and masks had entered his house. The men refused to
introduce themselves; they checked his identity documents and the
documents of Balavdi Ustarkhanov. Then, without providing any
explanations, they ordered Balavdi Ustarkhanov to follow them; they
also took his passport. The armed men then went into his uncle’s
house, where they also conducted identity checks and took away Mr
Makhadi M.’s passport. After the men left the house, he learned
that they had driven around in a grey UAZ vehicle and a tented ZIL
lorry without registration numbers.
- On
12 February 2003 the investigators requested that the military
prosecutor’s office of military unit no. 20102 and the
Criminal Search Department of the Ministry of the Interior in the
Southern Federal Circuit inform them whether they had arrested or
detained Balavdi Ustarkhanov. According to their responses, these
agencies had not arrested or detained the applicant’s son.
- On
12 February 2003 the investigators ordered the Achkhoy-Martan ROVD to
question staff at the military checkpoints in the vicinity of
Zakan Yurt in order to establish the vehicles which had passed
through them on the night of the abduction and to take operational
measures to identify the perpetrators of the abduction. According to
the ROVD’s reply of 19 February 2003, no information
concerning the abductors’ vehicles was available at the
checkpoints and no information concerning the identities of the
abductors had been obtained.
- On
the same date, 12 February 2003, the investigators requested that the
Operational Group of the Ministry of the Interior provide information
on whether they had conducted a special operation on 7 January 2003
and whether they had detained Balavdi Ustarkhanov. According to the
response of 25 April 2003, this agency had neither conducted any
special operations on 7 January 2003 nor detained the applicant’s
son.
- On
15 February 2003 the investigators forwarded a number of requests to
various prosecutors’ offices in Chechnya, requesting
information about the possible arrest and detention of Balavdi
Ustarkhanov and the discovery of his corpse. According to the
responses received from those offices, no such information was
available.
- On
20 February 2003 the investigators ordered the Achkhoy-Martan ROVD to
establish the witnesses of the abduction and question the neighbours
of Mr Magomed M. about the circumstances of the crime.
- According
to the Government, between 22 and 25 February 2003 the investigators
questioned nine residents of Zakan-Yurt, who provided similar
statements concerning the abduction. None of them had witnessed the
events; all of them had learnt from fellow villagers that at about 7
a.m. on 7 January 2003 a group of armed masked men in camouflage
uniforms had abducted a young man who had been visiting Mr Magomed M.
and that this man had been taken away in a UAZ vehicle and a ZIL
lorry without registration numbers.
- On
27 February 2003 the investigators requested that the Achkhoy Martan
district department of the Federal Security Service (the
Achkhoy-Martan department of the FSB) inform them whether they had
any information which discredited Balavdi Ustarkhanov. According to
their reply of 20 March 2003, no such information was available.
- On
27 February 2003 the investigators forwarded a number of information
requests to various detention centres in the Northern Caucasus.
According to their responses, Balavdi Ustarkhanov was not detained on
their premises.
- Between
5 and 19 March 2003 the investigators questioned eight residents of
Achkhoy-Martan and on unspecified dates they questioned a further
twenty residents of Achkhoy-Martan, all of whom provided similar
statements concerning the abduction. None of them had witnessed the
abduction; all of them had found out from their fellow villagers and
Khava Ustarkhanova that at about 7 a.m. on 7 January 2003 a group of
armed masked men in camouflage uniforms had abducted the applicant’s
son, who had been visiting his friend in Zakan-Yurt.
- On
an unspecified date the investigators obtained information that the
applicant had been approached by an intermediary, who had offered to
assist her in establishing the whereabouts of Balavdi Ustarkhanov and
obtain his release in exchange for 6,000 US dollars. During an
informal confidential conversation with the investigators the
applicant confirmed that she had been approached by the intermediary,
but refused to provide his name saying that in the search for her son
she and her relatives had resorted to the help of military servicemen
and civilians who could have had information about the whereabouts of
Balavdi Ustarkhanov.
- On
1 March 2008 the investigators again questioned the applicant, who
stated that some time after her son’s abduction a man had come
to her house. He had refused to introduce himself and told her that
if she paid 6,000 US dollars, he would bring her son home. The
applicant had agreed to pay the sum only after her son had been
returned. Three days later the man had come over again, but she had
not been at home. The applicant had never seen this man again.
- On
14 March 2008 the investigators suspended the investigation in the
criminal case for failure to establish the identities of the
perpetrators and informed the applicant of this.
- On
4 May 2008 the decision to suspend the investigation was overruled by
the supervising prosecutor, the proceedings were resumed and the
investigators were provided with instructions on the steps to be
taken in the proceedings.
- According
to the Government, although the investigation failed to establish the
whereabouts of Balavdi Ustarkhanov, it was under way and all measures
envisaged by national law were being taken. The investigation was
suspended and resumed on several occasions, and has so far failed to
identify those responsible for the abduction of the applicant’s
son.
- Despite
specific requests by the Court the Government did not disclose any
documents from criminal case no. 44011. They stated that the
investigation was in progress and that disclosure of the documents
would be in violation of Article 161 of the Code of Criminal
Procedure, since the file contained personal data concerning the
witnesses or other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
-
For a summary of the relevant domestic law, see Akhmadova and
Sadulayeva v. Russia (no. 40464/02, §§ 67-69,
10 May 2007).
THE LAW
I. THE GOVERNMENT’S OBJECTION REGARDING
NON EXHAUSTION OF DOMESTIC REMEDIES
A. The parties’ submissions
- The
Government contended that the complaint should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the disappearance of Balavdi Ustarkhanov
had not yet been completed.
- The
applicants
contested that objection. She stated that the only supposedly
effective remedy in her case, the criminal investigation, had proved
to be ineffective and rendered any other possible remedies inadequate
and illusory.
B. The Court’s assessment
- The
Court will examine the arguments of the parties in the light of the
provisions of the Convention and its relevant practice (for a
relevant summary, see Estamirov and Others v. Russia, no.
60272/00, §§ 73-74, 12 October 2006).
- As
regards the criminal-law remedies provided for by the Russian legal
system, the Court observes that the applicant complained to the
law enforcement authorities immediately after the kidnapping of
Balavdi Ustarkhanov and that an investigation has been under way
since 21 January 2003. The applicant and the Government dispute
the effectiveness of the investigation of the kidnapping.
- The
Court considers that the Government’s objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicant’s complaints. Thus, it
decides to join this objection to the merits of the case and
considers that the issue falls to be examined below.
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
- The
applicant maintained that it was beyond reasonable doubt that the men
who had taken away Balavdi Ustarkhanov had been State agents. In
support of her complaint she referred to the following facts. At the
material time Zakan-Yurt had been under the total control of federal
troops. There had been Russian military checkpoints on the roads
leading to and from the settlement. The armed men who had abducted
Balavdi Ustarkhanov had Slavic features and spoken Russian without an
accent, which proved that they were not of Chechen origin. The men
had arrived in the vehicles commonly used by the military, late at
night, which indicated that they had been able to circulate freely
past curfew. The men had carried out an identity check and taken away
two passports, one of which was later found in the vicinity of the
local checkpoint of the Russian federal forces. They were wearing
specific camouflage uniform, were armed and had portable radio sets.
Since Balavdi Ustarkhanov had been missing for a very lengthy period,
he could be presumed dead. That presumption was further supported by
the circumstances in which he had been arrested, which should be
recognised as life-threatening.
- The
Government submitted that unidentified armed men had kidnapped
Balavdi Ustarkhanov. They further contended that the investigation of
the incident was under way, that there was no evidence that the men
had been State agents and that there were therefore no grounds for
holding the State liable for the alleged violations of the
applicant’s rights. They further argued that there was no
convincing evidence that the applicant’s son was dead. The
Government raised a number of objections to the applicant’s
presentation of facts. The fact that the
perpetrators of the abduction spoke unaccented Russian and were
wearing camouflage uniforms did not mean that these men could not
have been members of illegal armed groups, criminals pursuing
mercenary goals or the men with whom Balavdi Ustarkhanov had fought
on the night of 31 December 2002 to 1 January 2003. The
Government further alleged that the applicant’s description of
the circumstances surrounding the abduction was inconsistent. In
particular, referring to the statements provided by the applicant and
other witnesses to the domestic investigation, the Government
stressed that they had not seen in person Balavdi Ustarkhanov being
taken away in a grey UAZ vehicle and a ZIL lorry, and that therefore
this information was unsubstantiated; that the applicant had failed
to inform the investigators about Mr Magomed M.’s neighbours
across the street, who had witnessed the abduction, and that she had
failed to provide the investigators with the name of the intermediary
who had approached her with an offer to assist in obtaining the
release of her son. In addition, the applicant had not informed the
investigators that on 3 January 2003 she had gone to Zakan-Yurt to
take her son to the hospital. The Government did not submit to the
Court the statements it referred to in its submissions.
B. The Court’s evaluation of the facts
- The
Court observes that in its extensive case-law it has developed a
number of general principles relating to the establishment of facts
in dispute, in particular when faced with allegations of
disappearance under Article 2 of the Convention (for a summary of
these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109,
27 July 2006). The Court also notes that the conduct of the parties
when evidence is being obtained has to be taken into account (see
Ireland v. the United Kingdom, § 161, Series A no. 25).
- The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Balavdi Ustarkhanov, the Government
produced none of the documents from the case file. The Government
referred to Article 161 of the Code of Criminal Procedure. The Court
observes that in previous cases it has already found this explanation
insufficient to justify the withholding of key information requested
by the Court (see Imakayeva v. Russia, no. 7615/02, §
123, ECHR 2006-... (extracts)).
- In
view of this and bearing in mind the principles referred to above,
the Court finds that it can draw inferences from the Government’s
conduct in respect of the well-foundedness of the applicant’s
allegations. The Court will thus proceed to examine crucial elements
in the present case that should be taken into account when deciding
whether the applicant’s son can be presumed dead and whether
his death can be attributed to the authorities.
- The
applicant alleged that the persons who had taken Balavdi Ustarkhanov
away on 7 January 2003 and then presumably killed him had been
State agents.
-
The Government suggested in their submissions that the abductors of
Balavdi Ustarkhanov may have been members of paramilitary groups,
criminals pursuing mercenary goals or the men
with whom Balavdi Ustarkhanov had fought on the night of 31 December
2002 to 1 January 2003. However, this allegation was not
specific and the Government did not submit any material to support
it. The Court would stress in this regard that the evaluation of the
evidence and the establishment of the facts is a matter for the
Court, and it is incumbent on it to decide on the evidentiary value
of the documents submitted to it (see Çelikbilek v. Turkey,
no. 27693/95, § 71, 31 May 2005).
-
The Court notes that the applicant’s allegation is supported by
the witness statements collected by the applicant and by the
investigation. It finds that the fact that a large group of armed men
in uniform was able to move freely through military roadblocks during
curfew hours and proceeded to check identity documents strongly
supports the applicant’s allegation that these were State
servicemen conducting a security operation. In her application to the
authorities the applicant expressed her concerns that Balavdi
Ustarkhanov had been detained by unknown servicemen and requested the
investigation to look into that possibility (see paragraph 30 above).
The domestic investigation also accepted the factual assumptions as
presented by the applicant and took measures to check whether federal
forces were involved in the kidnapping (see paragraph 27 above), but
it does not appear that any serious steps had been taken in that
direction.
- The
Government questioned the credibility of the applicant’s
statements in view of certain discrepancies relating to the exact
circumstances of the arrest and the circumstances following it. The
Court notes in this respect that no other elements underlying the
applicant’s submissions of facts have been disputed by the
Government. The Government did not provide to the Court those witness
statements to which they referred in their submissions. In the
Court’s view, the fact that over a period of several years the
applicant’s recollection of an extremely traumatic and
stressful event differed in rather insignificant details does not in
itself suffice to cast doubt on the overall veracity of her
statement.
- The
Court observes that where the applicant makes out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to a lack of relevant documents, it is for the Government to
argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicant, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
- Taking
into account the above elements, the Court is satisfied that the
applicant has made a prima facie case that her son was
apprehended by State servicemen. The Government’s statement
that the investigators had not found any evidence to support the
involvement of the special forces in the kidnapping is insufficient
to discharge them from the above-mentioned burden of proof. Having
examined the documents submitted by the applicant, and drawing
inferences from the Government’s failure to submit the
documents which were in their exclusive possession or to provide
another plausible explanation for the events in question, the Court
finds that Balavdi Ustarkhanov was arrested on 7 January 2003 by
State servicemen during an unacknowledged security operation.
- There
has been no reliable news of Balavdi Ustarkhanov since the date of
the kidnapping. His name has not been found in any official detention
facility records. Finally, the Government have not submitted any
explanation as to what happened to him after his arrest.
- Having
regard to the previous cases concerning disappearances in Chechnya
which have come before it (see, among others, Bazorkina, cited
above; Imakayeva, cited above; Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006 ... (extracts);
Baysayeva v. Russia, no. 74237/01, 5 April 2007;
Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva
v. Russia, no. 68007/01, 5 July 2007), the Court finds
that in the context of the conflict in the Chechen Republic, when a
person is detained by unidentified servicemen without any subsequent
acknowledgment of the detention, this can be regarded as
life-threatening. The absence of Balavdi Ustarkhanov or of any news
of him for several years supports this assumption.
- Accordingly,
the Court finds that the evidence available permits it to establish
that Balavdi Ustarkhanov must be presumed dead following his
unacknowledged detention by State servicemen.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained under Article 2 of the Convention that her son
had been deprived of his life by Russian servicemen and that the
domestic authorities had failed to carry out an effective
investigation of 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.
2. 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.”
A. The parties’ submissions
- The
Government contended that the domestic investigation had obtained no
evidence to the effect that Balavdi Ustarkhanov was dead or that any
servicemen of the federal law-enforcement agencies had been involved
in his kidnapping or alleged killing. The Government claimed that the
investigation into the kidnapping of the applicant’s son met
the Convention requirement of effectiveness, as all measures
available under national law were being taken to identify those
responsible.
- The
applicant argued that Balavdi Ustarkhanov had been detained by State
servicemen and should be presumed dead in the absence of any reliable
news of him for several years. The applicant also argued that the
investigation had not met the effectiveness and adequacy requirements
laid down by the Court’s case-law. The applicant pointed out
that the investigation had failed to take some crucial investigative
steps, such as questioning the neighbours of Mr Magomed M. and
members of his family who had witnessed the abduction, or questioning
representatives of local law-enforcement and military structures who
could have had information about the events in question. The
investigation into Balavdi Ustarkhanov’s abduction had been
opened fourteen days after the events, and had then been suspended
and resumed a number of times – thus delaying the taking of the
most basic steps – and that the applicant had not been properly
informed of the most important investigative measures. The fact that
the investigation had been under way for such a long period of time
without producing any known results was further proof of its
ineffectiveness. The applicant also invited the Court to draw
conclusions from the Government’s unjustified failure to submit
the documents from the case file to her or to the Court.
B. The Court’s assessment
1. Admissibility
- 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 domestic remedies
should be joined to the merits of the complaint (see paragraph 58
above). The complaint under Article 2 of the Convention must
therefore be declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Balavdi Ustarkhanov
- The Court has already found that the applicant’s
son must be presumed dead following unacknowledged detention by State
servicemen. In the absence of any justification put forward by the
Government, the Court finds that his death can be attributed to the
State and that there has been a violation of Article 2 in respect of
Balavdi Ustarkhanov.
(b) The alleged inadequacy of the
investigation of the kidnapping
- The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of 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. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention’s
requirements (for a summary of these principles see Bazorkina,
cited above, §§ 117-119).
- In
the present case, the kidnapping of Balavdi Ustarkhanov was
investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
- The
Court notes at the outset that none of the documents from the
investigation were disclosed by the Government. It therefore has to
assess the effectiveness of the investigation on the basis of the few
documents submitted by the applicant and the information about its
progress presented by the Government.
- The
Court notes that the authorities were immediately made aware of the
crime by the applicant’s submissions. The investigation in case
no. 44011 was instituted on 21 January 2003, that is, fourteen
days after Balavdi Ustarkhanov’s abduction. Such a postponement
per se was liable to affect the investigation of the
kidnapping in life-threatening circumstances, where crucial action
has to be taken in the first days after the event. It appears that a
number of essential steps were subsequently either delayed or were
not taken at all. For instance, the Court notes that although,
according to the Government, the domestic investigation questioned a
number of persons about the circumstances of the abduction, it
appears that the vast majority of them were residents of
Achkhoy-Martan (see paragraph 46 above) and not of Zakan-Yurt, where
the abduction had taken place; that the eight residents of Zakan-Yurt
questioned by the investigators had not witnessed the events (see
paragraph 43 above); that the investigators also failed to question
the neighbour of Mr Magomed M. who lived across the street and those
relatives of Mr Madomed M. who were present during the abduction (see
paragraphs 13 and 14 above). Further, the Court observes that the
investigators did not identify or question any representatives of
law enforcement agencies or the military who could have had
information about the group driving around in Zakan-Yurt during the
curfew hours, or that they identified and questioned the servicemen
who had manned the checkpoints in the vicinity of Zakan-Yurt. It is
obvious that these investigative measures, if they were to produce
any meaningful results, should have been taken immediately after the
crime was reported to the authorities, and 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 also notes that although the applicant was granted victim
status in the criminal case, she was only informed of the suspension
and resumption of the proceedings, and not of any other significant
developments. Accordingly, the investigators failed to ensure that
the investigation received the required level of public scrutiny, or
to safeguard the interests of the next of kin in the proceedings.
- Finally,
the Court notes that from the submitted materials it follows that the
investigation was suspended in March 2003 and then resumed in March
2008, that is, the investigation was inactive for almost five years,
which was acknowledged in May 2008 by the supervising prosecutor who
instructed the investigators to take certain steps (see paragraph 50
above). It is unclear whether his instructions were complied with.
- Having
regard to the limb of the Government’s preliminary objection
that was joined to the merits of the complaint, inasmuch as it
concerns the fact that the domestic investigation is still pending,
the Court notes that the investigation, having being repeatedly
suspended and resumed and plagued by inexplicable delays, has been
under way for many years and has produced no tangible results.
Accordingly, the Court finds that the remedy relied on by the
Government was ineffective in the circumstances and dismisses their
preliminary objection.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of Balavdi Ustarkhanov,
in breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant relied on Article 3 of the Convention, submitting that as a
result of her son’s disappearance and the State’s failure
to investigate it properly, she had endured mental suffering in
breach of Article 3 of the Convention. Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government disagreed with these allegations and argued that the
investigation had not established that the applicant had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention.
- The
applicant maintained her submissions.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint under Article 3 of the Convention is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
- The Court has found on many occasions that in a
situation of enforced disappearance close relatives of the victim may
themselves be victims of treatment in violation of Article 3. The
essence of such a violation does not mainly lie 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,
cited above, § 164).
- In
the present case the Court notes that the applicant is the mother of
the disappeared person. For more than six years she has not had any
news of the missing man. During this period the applicant has made
enquiries to various official bodies, both in writing and in person,
about her missing son. Despite her attempts, the applicant has never
received any plausible explanation or information about what became
of him following his detention. The responses she received mostly
denied State responsibility for his arrest or simply informed her
that the investigation was ongoing. The Court’s findings under
the procedural aspect of Article 2 are also of direct relevance here.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention also in respect of the applicant.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant further stated that Balavdi Ustarkhanov had been detained
in violation of the guarantees contained in 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;
...
2. 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.
3. 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.
4. 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.
5. 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.”
A. The parties’ submissions
- The
Government asserted that no evidence had been obtained by the
investigators to confirm that Balavdi Ustarkhanov had been deprived
of his liberty. He was not listed among the persons kept in detention
centres and none of the regional law-enforcement agencies had
information about his detention.
- The
applicant reiterated the complaint.
B. The Court’s assessment
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that the complaint is not inadmissible
on any other grounds and must therefore be declared admissible.
2. Merits
- 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
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
- The Court has found that Balavdi Ustarkhanov was
apprehended by State servicemen on 7 January 2003 and has not
been seen since. His detention was not acknowledged, was not logged
in any custody records and there exists no official trace of his
subsequent whereabouts or fate. In accordance with the Court’s
practice, this fact in itself must be considered a most serious
failing, since it enables those responsible for an act of deprivation
of liberty to conceal their involvement in a crime, to cover their
tracks and to escape accountability for the fate of a detainee.
Furthermore, the absence of detention records, noting such matters as
the date, time and location of detention and the name of the detainee
as well as the reasons for the detention and the name of the person
effecting it, must be seen as incompatible with the very purpose of
Article 5 of the Convention (see Orhan, cited above, § 371).
- The
Court further considers that the authorities should have been more
alert to the need for a thorough and prompt investigation of the
applicant’s complaints that her son had been detained and taken
away in life-threatening circumstances. However, the Court’s
findings above in relation to Article 2 and, in particular, the
conduct of the investigation leave no doubt that the authorities
failed to take prompt and effective measures to safeguard him against
the risk of disappearance.
- In
view of the foregoing, the Court finds that Balavdi Ustarkhanov was
held in unacknowledged detention without any of the safeguards
contained in Article 5. This constitutes a particularly grave
violation of the right to liberty and security enshrined in Article 5
of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant alleged that the
disappearance of her son after his detention by the State authorities
caused her distress and anguish which had amounted to a violation of
their right to family life. She referred to Article 8 of the
Convention, which as far as relevant provides:
“1. Everyone has the
right to respect for his private and family life, his home and his
correspondence...”
- The
applicant’s complaint concerning her inability to enjoy family
life with her son Balavdi Ustarkhanov concerns the same facts as
those examined above under Articles 2 and 3 of the Convention. Having
regard to its above findings under these provisions, the Court
considers that this complaint should be declared admissible. However,
it finds that no separate issue arises under Article 8 of the
Convention in this respect (see, mutatis
mutandis, Ruianu
v. Romania,
no. 34647/97, § 66,
17 June 2003; Laino v. Italy
[GC], no. 33158/96, § 25, ECHR 1999 I; and Canea
Catholic Church v. Greece, 16
December 1997, § 50, Reports of
Judgments and Decisions 1997 VIII).
VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The applicant complained that
she 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.”
A. The parties’ submissions
- The Government contended that
the applicant had had effective remedies at her disposal as required
by Article 13 of the Convention and that the authorities did not
prevent her from using them. The applicant had had an opportunity to
lodge a civil claim for compensation and challenge the actions or
omissions of the investigating authorities in court. In sum, the
Government submitted that there had been no violation of Article 13.
- The applicants reiterated their
complaint.
B. The Court’s assessment
1. Admissibility
- The Court notes that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
- The Court reiterates that
Article 13 of the Convention guarantees the availability at the
national level of a remedy to enforce the substance of the Convention
rights and freedoms in whatever form they might happen to be secured
in the domestic legal order. According to the Court’s settled
case-law, the effect of Article 13 of the Convention is to require
the provision of a remedy at national level allowing the competent
domestic authority both to deal with the substance of a relevant
Convention complaint and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in
which they comply with their obligations under this provision.
However, such a remedy is only required in respect of grievances
which can be regarded as “arguable” in terms of the
Convention (see, among many other authorities, Halford
v. the United Kingdom, 25 June 1997,
§ 64, Reports 1997 III).
- As regards the complaint of
lack of effective remedies in respect of the applicant’s
complaint under Article 2, the Court emphasises that, given the
fundamental importance of the right to protection of life, Article 13
requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible for
the deprivation of life and infliction of treatment contrary to
Article 3, including effective access for the complainant to the
investigation procedure leading to the identification and punishment
of those responsible (see Anguelova
v. Bulgaria, no. 38361/97,
§§ 161-162, ECHR 2002-IV, and Süheyla
Aydÿn v. Turkey, no. 25660/94,
§ 208, 24 May 2005). The Court further reiterates that the
requirements of Article 13 are broader than a Contracting
State’s obligation under Article 2 to conduct an effective
investigation (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and
57945/00, § 183, 24 February 2005).
- In view of the Court’s
above findings with regard to Article 2, this complaint is
clearly “arguable” for the purposes of Article 13
(see Boyle and Rice v. the United
Kingdom, 27 April 1988, § 52,
Series A no. 131). The applicant should accordingly have been
able to avail herself of effective and practical remedies capable of
leading to the identification and punishment of those responsible and
to an award of compensation for the purposes of Article 13.
- It follows that in
circumstances where, as here, the criminal investigation into the
disappearance has been ineffective and the effectiveness of any other
remedy that may have existed, including civil remedies suggested by
the Government, has consequently been undermined, the State has
failed in its obligation under Article 13 of the Convention.
- Consequently, there has been a
violation of Article 13 in conjunction with Article 2 of the
Convention.
- As
regards the applicant’s reference to Articles 3 and 5 of the
Convention, the Court considers that, in the circumstances, no
separate issues arise in respect of Article 13 in conjunction with
Articles 3 and 5 of the Convention (see Kukayev
v. Russia, no. 29361/02, § 119,
15 November 2007, and Aziyevy v.
Russia, no. 77626/01, § 118,
20 March 2008).
- As
for the complaint under Article 13 in conjunction with Article 8
concerning the right to family life, the Court notes that in
paragraph 102 above it found that no separate issue arises under that
provision. Therefore, it considers that no separate issue arises
under Article 13 in this respect either.
VIII. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The applicant complained that
she had been discriminated against in the enjoyment of her Convention
rights, as the violations of which she complained had taken place
because of her being a resident of Chechnya and her ethnic background
as Chechen. This was contrary to Article 14 of the Convention, which
provides:
“The
enjoyment of the right 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 her observations on
admissibility and merits of the application the applicant stated that
she no longer wished her complaints under Article 14 of the
Convention to be examined.
- The Court, having regard to
Article 37 of the Convention, finds that the applicant does 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,
for example, Chojak v. Poland,
no. 32220/96, Commission decision of 23 April 1998; Singh
and Others v. the United Kingdom
(dec.), no. 30024/96, 26 September 2000; and 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.
IX. 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.”
A. Pecuniary damage
- The
applicant made a claim in respect of Balavdi Uruskhanov’s loss
of earnings. She claimed a total of 431,484 Russian roubles (RUB)
under this heading
(12,300 euros (EUR)).
- The applicant submitted that
she was financially dependent on her son Balavdi Uruskhanov, and that
she would have benefited from his financial support in the above
amount. The applicant’s calculations were based on the
provisions of the Russian Civil Code and the actuarial tables for use
in personal injury and fatal accident cases published by the United
Kingdom Government Actuary’s Department in 2007 (“Ogden
tables”).
- The Government regarded these
claims as unsubstantiated.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicant 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, it finds that there is a direct causal link
between the violation of Article 2 in respect of the
applicant’s’
son and the loss by her of the financial support which he could have
provided. Having regard to the applicant’s submissions and the
absence of any documents substantiating the earnings of Balavdi
Uruskhanov at the time of the abduction, the Court awards the
applicant EUR 10,000 in respect of pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Non-pecuniary damage
- The applicant claimed
EUR 70,000 in respect of non-pecuniary damage for the suffering
she had endured as a result of the loss of her family member, the
indifference shown by the authorities towards her and the failure to
provide any information about the fate of her son.
- The Government found the
amounts claimed excessive.
- The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicant’s son. The applicant herself has been found to have
been a victim of a violation of Article 3 of the Convention. The
Court thus accepts that she has suffered non-pecuniary damage which
cannot be compensated for solely by the findings of violations. It
awards the applicant EUR 35,000, plus any tax that may be
chargeable thereon.
C. Costs and expenses
- The applicant was represented
by the SRJI. They submitted an itemised schedule of costs and
expenses that included research and interviews in Chechnya and
Moscow, at a rate of EUR 50 per hour, and the 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 and experts. The aggregate claim in respect of
costs and expenses related to the legal representation of the
applicant amounted to EUR 6,075.
- The Government did not dispute
the reasonableness and the justification of the amounts claimed under
this heading.
- The Court has to establish
first whether the costs and expenses indicated by the applicant’s
representatives were actually incurred and, second, whether they were
necessary (see McCann and Others,
cited above, § 220).
- Having regard to the details of
the contract, the Court is satisfied that these rates are reasonable
and reflect the expenses actually incurred by the applicant’s
representatives.
- As to whether the costs and
expenses 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 applicant’s representatives
submitted their observations on admissibility and merits in one set
of documents. The Court thus doubts that legal drafting was
necessarily time-consuming to the extent claimed by the
representatives. In addition, the case involved little documentary
evidence, in view of the Government’s refusal to submit
documents from the case file. Therefore, the Court doubts that
research was necessary to the extent claimed by the representatives.
- Having regard to the details of
the claims submitted by the applicant and acting on an equitable
basis, the Court awards her the amount of EUR 5,500 together
with any value-added tax that may be chargeable to the applicant, the
net award to be paid into the representatives’ bank account in
the Netherlands, as identified by the applicant.
D. 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 complaints lodged under Article 14 of the Convention;
2. Decides to join to the merits the Government’s
objection as to non exhaustion of criminal domestic remedies and
rejects it;
- Declares the complaints under Articles 2, 3, 5,
8 and 13 of the Convention admissible;
4. Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Balavdi
Ustarkhanov;
- 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 Balavdi
Ustarkhanov disappeared;
6. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicant;
- Holds that there has been a violation of
Article 5 of the Convention in respect of Balavdi Ustarkhanov;
8. Holds
that no separate issues arise under Article 8 of the Convention
regarding the applicant’s right to respect for family life;
9. Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of the Convention;
- Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3, 5 and 8;
- Holds
(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, to be converted into
Russian roubles at the date of settlement, save in the case of the
payment in respect 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 applicant;
(ii) EUR 35,000
(thirty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicant;
(iii) EUR 5,500
(five thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
paid into the representatives’ bank account in the Netherlands;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
