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FIRST
SECTION
CASE OF
MALIKA ALIKHADZHIYEVA v. RUSSIA
(Application
no. 37193/08)
JUDGMENT
STRASBOURG
24 May 2011
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 Malika Alikhadzhiyeva v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
George
Nicolaou,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 3 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37193/08) 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 Ms Malika Alikhadzhiyeva (“the
applicant”), on 1 August 2008.
- The
applicant was represented by lawyers of the NGO EHRAC/Memorial Human
Rights Centre. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the Representative of the
Russian Federation at the European Court of Human Rights.
- On
31 August 2009 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 it to the Government.
Under the provisions of former 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 and to the application of Rule 41 of the
Rules of Court. Having considered the Government’s objection,
the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968. She resides in the town of Shali, in the
Chechen Republic. The applicant is the wife of Ruslanbek
Alikhadzhiyev, born in 1963.
A. The background to the case
- At
the material time, the applicant and Ruslanbek Alikhadzhiyev resided
at 97, Suvorova Street in Shali. Ruslanbek Alikhadzhiyev’s
brother, Mr Ruslan Alikhadzhiyev, and his family resided at the same
address.
- Ruslanbek
Alikhadzhiyev had not participated in illegal armed groups since the
authorities launched the counter-terrorist operation in the Chechen
Republic in 1999.
- In
May 2000 Ruslan Alikhadzhiyev, who had been the speaker of the
Chechen Parliament (“the Parliament of the Chechen Republic of
Ichkeria”) in 1997-99, was abducted from his house and
disappeared (see Alikhadzhiyeva v. Russia, no. 68007/01, 5
July 2007).
- According
to the applicant, Ruslan Alikhadzhiyev’s previous involvement
in political activities and his ensuing disappearance provoked a
heightened interest in their whole family on the part of the domestic
authorities. In particular, members of the military commander’s
office of the Shalinskiy District often came to their house, searched
it and checked the family members’ identity papers.
- Ruslanbek
Alikhadzhiyev had a silver-grey Volga with licence plate no. A
577 BB 95. He had acquired it in 1995 from his relative, Kh.A., in
exchange for another car.
- Ruslanbek
Alikhadzhiyev was about 170 cm tall.
B. Disappearance of Ruslanbek Alikhadzhiyev and the
applicant’s search for him
1. The applicant’s account
- On 20 April 2005 Ruslanbek Alikhadzhiyev drove his
Volga to Gudermes to take a TV set to a repair shop. He gave a lift
to Kh.A., who also needed to go to Gudermes. Ruslanbek Alikhadzhiyev
was wearing black velvet trousers and a black shirt with white
stripes.
- It
appears that at a certain moment Ruslanbek Alikhadzhiyev and Kh. A.
parted and the former drove alone back to Shali.
- At
about noon on 20 April 2005 Ruslanbek Alikhadzhiyev’s car was
stopped at the checkpoint of the Russian federal forces located at
the intersection of the Kavkaz motorway and the Argun-Shali road, in
the vicinity of the village of Mesker-Yurt. The checkpoint was
located in the middle of a roundabout. The servicemen at the
checkpoint always requested that the vehicles slowed down while
passing through. Moreover, there were many holes in the road which
also made the drivers slow down while they were passing the area.
- At
about noon on 20 April 2005 the minibus in which M.E. was going to
Shali approached the above-mentioned checkpoint. From the minibus
M.E. saw that a young man had stopped his silver-grey Volga at the
checkpoint and was heading towards the hatch at which the servicemen
usually registered the passing drivers. The man was wearing dark
trousers and a dark shirt and was about 170 cm tall. A white Gazel
vehicle was stationed at the checkpoint nearby. At the moment when
the man approached the hatch to present his identity papers for
registration, three servicemen rushed towards him. Two servicemen
twisted his arms behind his back and the third serviceman handcuffed
him. They then took the man inside the checkpoint which was
surrounded by blocks and slabs made of concrete.
- M.E.
immediately wrote down the numbers on the Volga’s licence plate
which he was able to see: 577 BB 95. He also asked the minibus driver
to stop but the latter refused, saying that if he did so the
servicemen could fire on them. According to M.E., his daughter and
other passengers of the minibus witnessed the abduction of the man
from the Volga.
- At
about noon the same day S.T., A.B. and S.M., who were driving from
Grozny to Shali, approached the above-mentioned checkpoint. The three
men were residents of Shali and personally knew Ruslanbek
Alikhadzhiyev. They also knew that he had a silver-grey Volga and had
seen Ruslanbek Alikhadzhiyev drive it on numerous occasions. When the
car with the three men approached the checkpoint, they saw the
silver grey Volga, which S.M. immediately recognised as the
vehicle belonging to Ruslanbek Alikhadzhiyev because he remembered
its licence plate numbers. Immediately after that the three men saw
two servicemen get inside Ruslanbek Alikhadzhiyev’s car. A
red-haired serviceman who was about 165 cm tall took the driver’s
seat. The second serviceman, who was taller and had a beer can in his
hand, took the passenger seat. The three men also noticed an APC
which was parked at the checkpoint. Having discussed what they had
seen, the three men decided that, although the Volga looked like
Ruslanbek Alikhadzhiyev’s car and S.M. claimed that it had the
same licence plates, they must have been mistaken. They did not stop
and drove on. Later in the evening they learnt that Ruslanbek
Alikhadzhiyev had not returned home because he had been abducted at
the checkpoint.
- According
to M.E., on the same day, having arrived in Shali, he went to the
town centre where taxi drivers usually gathered. He asked them
whether they knew to whom the car with the licence plate he had
written down might belong. One of the drivers told him that it could
have been owned by a certain resident of Mesker-Yurt. M.E. went to
that village but did not find the car owner. He returned to Shali and
continued enquiring about the owner of the Volga. According to Mr E.,
a boy told him that he knew the owners of the car. The boy
immediately called somebody over the phone but was unable to obtain
the necessary information. M.E. then gave him his address in Shali,
so that the relatives of the abducted man could contact him. On the
same evening the Alikhadzhiyevs came to visit M.E. and he told them
about the incident he had witnessed at the checkpoint. From the
conversation with the Alikhadzhiyevs, M.E. inferred that the abducted
person was Ruslanbek Alikhadzhiyev.
- According
to the applicant, in the afternoon on 20 April 2005 she called her
husband on his mobile phone but he did not answer. She waited for him
until the evening and then sent her son to Kh.A. to ask for news of
her husband. However, Kh.A. was absent and the applicant’s son
returned home without any information.
- Later
the same evening the applicant learnt that Kh.A. had received a
message from an acquaintance that servicemen at the Mesker Yurt
checkpoint had apprehended a person driving Kh.A.’s Volga. That
person apparently did not know that Kh.A. and Ruslanbek Alikhadzhiyev
had exchanged cars and that the Volga had been owned by the
applicant’s husband since that time. Kh.A. went to see that man
who subsequently turned out to be M.E. The latter described to Kh.A.
in detail the circumstances of the Ruslanbek Alikhadzhiyev’s
abduction. On an unspecified date the applicant met M.E. Having
talked to him in person and heard his description of the abducted
man, she concluded that the person abducted at the Mesker-Yurt
checkpoint on 20 April 2005 had been her husband.
- The
applicant has had no news of Ruslanbek Alikhadzhiyev since 20 April
2005.
- The above account of the events is based on the
information contained in the applicant’s application form; the
applicant’s written statement of 28 September 2007; a written
statement by M.E. made on 19 June 2007; written statements by
S.T. and A.B. made on 28 September 2007 and a written statement
by S.M. made on 24 February 2010.
2. Information submitted by the Government
- The
Government did not challenge the facts, as presented by the
applicant. They claimed that the domestic investigation into the
disappearance of Ruslanbek Alikhadzhiyev had obtained no evidence
that he had been abducted during a security operation.
C. The investigation into the disappearance of
Ruslanbek Alikhadzhiyev
1. The applicant’s account
- On
the night of 20 April 2005 the applicant contacted unspecified local
authorities by phone and complained to them about the abduction of
her husband.
- On
21 April 2005 the applicant filed written complaints about the
abduction of her husband with the prosecutor’s office and the
local police. She submitted that she had not kept copies of those
complaints.
- Over
the following days the applicant complained about Ruslanbek
Alikhadzhiyev’s apprehension to various State authorities,
seeking assistance in establishing his whereabouts, but did not
receive any meaningful information in that respect.
- On
24 August 2005 the Office of the President of the Chechen Republic
replied to the applicant that they had examined her request for
assistance in the search for Ruslanbek Alikhadzhiyev and had
forwarded it to the prosecutor of the Chechen Republic.
- By
a letter of 29 August 2005 the prosecutor’s office of the
Chechen Republic forwarded the applicant’s complaint about the
abduction of her husband to the prosecutor’s office of the
Shalinskiy District (“the district prosecutor’s office”).
- On
12 October 2005 the district prosecutor’s office instituted a
criminal investigation into the abduction of Ruslanbek Alikhadzhiyev
under Article 126 of the Criminal Code (abduction). The case file was
assigned the number 46130.
- On
31 October 2005 the district prosecutor’s office granted the
applicant victim status in the proceedings in case no. 46130.
The applicant was notified of the decision on the same day. The
decision stated, among other things, that on 20 April 2005 Ruslanbek
Alikhadzhiyev had driven to Gudermes in his Volga GAZ-31105, licence
plate no. A 577 BB 95, in order to take a TV set to a repair shop.
When he was returning back to Shali, unidentified armed persons in
camouflage uniforms driving a beige Gazel had stopped his car on a
roundabout in the vicinity of Mesker-Yurt. They had abducted
Ruslanbek Alikhadzhiyev and taken him to an unknown destination.
- It
appears that on an unspecified date the investigation in case
no. 46130 was suspended. There is no indication that the
applicant was informed of that decision.
- By
a letter of 7 February 2006 the district prosecutor’s office
informed the applicant that on an unspecified date it had resumed the
investigation in case no. 46130 and that operational and search
measures aimed at establishing Ruslanbek Alikhadzhiyev’s
whereabouts and identifying the perpetrators were under way.
- On 2 July 2007 the applicant complained to the
district prosecutor’s office that the investigation into the
abduction of her husband had yielded no results. She requested that
the investigation be resumed if it had been suspended and sought
access to the case file and permission to make copies from it in
order to have sufficient information for challenging before the
courts the decision to suspend the investigation.
- On 17 July 2007 the district prosecutor’s office
replied to the applicant saying that it had taken all investigative
steps which could have been taken in the absence of there being
anyone to be charged with the abduction of Ruslanbek Alikhadzhiyev
and that it thus found no grounds to resume the investigation. As
regards the applicant’s request for access to the case file,
she would be provided access to the documents drawn up with her
participation.
2. The Government’s account
(a) The Government’s refusal to
provide a copy of the entire criminal case file no. 46130
- Despite
the Court’s specific requests, the Government failed to produce
most of the documents from criminal case file no. 46130,
furnishing only copies of the decisions to open, some of the
decisions to suspend and resume the investigation, several witness
statements and the investigating authority’s requests for
information to various State bodies on the missing man’s
whereabouts or his possible arrest or detention and some of their
replies to them. The Government did not provide any explanation for
their failure to comply with the Court’s request. Some of the
documents submitted by the Government were legible only in part. The
information contained in those documents may be summarised as
follows.
(b) Opening of the investigation
- When
giving notice of the present application to the respondent
Government, the Court specifically requested them to provide copies
of the applicant’s complaints about the abduction of her
husband, which had prompted the opening of the investigation. In
their observations the Government stated that the district
prosecutor’s office had received the applicant’s
complaint about the abduction of her husband on 21 September 2005,
without providing any further information. The bulk of the documents
submitted by them contained several documents which appear to be
relevant to the matter and can be summarised as follows.
- From the documents disclosed by the Government it can
be seen that on 1 August 2005 the applicant complained about the
abduction of her husband to the Ombudsman of the Russian Federation
and that on an unspecified date in August 2005 her further complaint
about his abduction was received by the President of the Chechen
Republic. In both applications the applicant submitted that she had
previously complained about the kidnapping of Ruslanbek Alikhadzhiyev
to a number of State authorities, including the Shalinskiy District
Department of the Interior (ROVD) and the Khankala Department of the
Interior, but those authorities had disregarded her submissions.
- By a decision of 8 September 2005 a prosecutor of the
district prosecutor’s office extended for ten days the
time-limit for the preliminary examination of the applicant’s
complaint about the abduction of her husband. The decision stated
that the prosecutor had received the applicant’s complaint
about the abduction of her husband on 8 September 2005.
- The Government also provided a copy of the applicant’s
complaint to the Shalinskiy ROVD about the abduction of Ruslanbek
Alikhadzhiyev, dated 20 September 2005.
- On
12 October 2005 the district prosecutor’s office instituted an
investigation into the abduction of Ruslanbek Alikhadzhiyev under
Article 126 § 2 of the Criminal Code (aggravated
kidnapping). The decision stated, among other things, that on 20
April 2005 Ruslanbek Alikhadzhiyev had gone in his Volga, licence
plate no. A 577 BB 95, to Gudermes to take his TV to a repair centre.
On the same day, while Ruslanbek Alikhadzhiyev was driving from
Gudermes to the town of Shali, unidentified armed persons in
camouflage uniforms, who had been driving a beige Gazel, had stopped
his car at the roundabout near Mesker-Yurt, had arrested him and
taken him to an unknown destination.
(c) Interviewing of witnesses
- On 28 August 2005 the investigators interviewed A.S.
as a witness. He stated that on 20 April 2005 he had learnt that on
the same day Ruslanbek Alikhadzhiyev had been abducted by members of
the security forces at the checkpoint near Mesker-Yurt. In
particular, armed men who had introduced themselves as officers of
the Federal Security Service (“the FSB”) had stopped his
car at the checkpoint, put him into their white armoured Gazel and
taken him in the direction of Grozny. They had also taken Ruslanbek
Alikhadzhiyev’s car with them. The arrest had been carried out
in the presence of servicemen of the checkpoint.
- L.Z.,
who was interviewed on 28 August 2005, submitted that she had learnt
of the abduction of Ruslanbek Alikhadzhiyev at the checkpoint near
Mesker-Yurt from A.S. and confirmed his account of the events.
- On 2 September 2005 the investigators interviewed A.O.
as a witness. He stated that in April 2005 he had been stationed in
the Chechen Republic and that on 20 April 2005 he had been on duty at
checkpoint no. 112 at the intersection of the roads between
Shali and Mesker-Yurt. At about 9 a.m. a beige Gazel had arrived at
the checkpoint; A.O. did not remember the figures on its licence
plate. Five armed persons in camouflage uniforms had emerged from the
vehicle. They had been Russians; one of them had had an Asian
appearance. They had introduced themselves as officials of the FSB
and asked for assistance in arresting a man driving a Volga. At about
1 p.m. O.A. had stopped the vehicle which interested the men,
checked the driver’s papers and sent the driver to the
registration point at the checkpoint. A.O. could not remember the
man’s name but would have been able to identify him. While the
man had been heading to the registration point, the FSB officers had
approached him and asked him to follow them to the Gazel. The man had
got into their car and they had got inside it after him. One of the
FSB officers had got into the man’s Volga and both vehicles had
driven off in the direction of Grozny. The convoy had been followed
by a white VAZ-21093 vehicle, also driven by an FSB officer. A.O. had
not asked the FSB officers why they were arresting the man in the
Volga.
- On 14 September 2005 the investigators interviewed
S.B. as a witness. He stated that he had been stationed in the
Chechen Republic since March 2005 and that in April 2005 he had been
on duty, together with other servicemen from his unit, at the
intersection of the roads between Shali, Mesker-Yurt and Grozny. At
about 9 a.m. on 20 April 2005 a beige Gazel had arrived at the
checkpoint and two men had emerged from it. They had introduced
themselves as FSB officers and had produced the relevant certificates
indicating that they had been serving in Khankala. They had also said
that they were there to arrest a certain person but that they did not
know when exactly he would appear and that that information was to be
communicated to them over the phone. Having spent a day at the
checkpoint they had left in the direction of Khankala.
- On 20 September 2005 the investigators interviewed the
applicant as a witness. She stated that on the evening of 20 April
2005 a woman had told her that armed men in camouflage uniforms had
abducted her husband at the checkpoint near Mesker-Yurt. On that day
he had gone to Gudermes to take a TV set to a repair shop. While
returning to Shali, he had been stopped at the checkpoint near
Mesker-Yurt. There, while on his way to the registration point, FSB
officers from Khankala had arrested him, put him into their white
Gazel and driven off in the direction of Grozny. Servicemen at the
checkpoint had witnessed the arrest. After the abduction the
applicant had applied to the Department of the Interior in Khankala
but had received no reply from that authority.
- On 31 October 2005 the applicant was granted victim
status in the proceedings in case no. 46130. While being
interviewed on the same date, she confirmed her account of the events
given on 20 September 2005.
- On
7 November 2005 the investigators interviewed M.E. as a witness. He
submitted that on 20 April 2005 he had been going in a minibus to
Shali. At the checkpoint in Mesker-Yurt he had noticed a man who was
standing near a Volga with licence plate no. A 577 BB 95. The
man had been approached by three persons in camouflage uniforms. They
had twisted his arms and had led him to a light-coloured armoured
Gazel, parked nearby and put him inside it. M.E. had not seen what
had occurred afterwards because the driver of the minibus had told
him that he could not stop at the checkpoint. However, M.E. had
written down the licence plate number of the Volga in order to tell
the man’s relatives of his arrest, should he find them. Once he
had arrived in Shali, M.E. had approached taxi drivers and asked them
if they knew who the owner of the vehicle was. They had promised him
to ask further and had taken his telephone number and his home
address. On the same evening the Alikhadzhiyevs had come to his house
and he had told them about what he had seen at the checkpoint. One of
the women had told M.E. that she was the arrested person’s
wife.
- L.Z.,
interviewed as a witness on 7 November 2005, stated that she had
learnt of the abduction of Ruslanbek Alikhadzhiyev from his relatives
on the evening of 20 April 2005.
- On 8 February 2006 the investigators interviewed A.U.
as a witness. He stated that he occupied the post of the deputy head
of the Shalinskiy Department of the Interior (“the Shalinskiy
ROVD”) and that on 20 September 2005 he had examined the
ROVD materials concerning the abduction of Ruslanbek Alikhadzhiyev at
the checkpoint in Mesker-Yurt. It followed from those materials and,
in particular, the statements of the servicemen who had been on duty
at the checkpoint, that the men who had arrested Ruslanbek
Alikhadzhiyev had introduced themselves as FSB officers from
Khankala. A.U. had subsequently sent all the materials to the
district prosecutor’s office.
- I.M.
and S.M., interviewed as witnesses on 15 and 16 February 2006, stated
that they had learnt of the abduction of Ruslanbek Alikhadzhiyev from
his relatives.
- On 22 April 2006 the investigators interviewed Zh.Kh.
as a witness. He stated that on 20 April 2005 he had been in command
of the unit of the Shalinskiy ROVD who had been on duty at the
checkpoint near Mesker Yurt and that his unit also included
servicemen A. and V. The duties of the servicemen from his unit
included checking the persons, vehicles and cargo passing through the
checkpoint and securing public order in the area. A unit of
servicemen of the Special Police Force from Primorsk (“the OMON
unit”) was also in charge of the checkpoint together with
Zh.Kh.’s unit. At about 9 a.m. on 20 April 2005 a white Gazel
had arrived at the checkpoint. Zh.Kh. had not memorised its licence
plate numbers. Three heavily built armed men in camouflage uniforms
had emerged from the vehicle. They had been aged 35 to 40; one of
them had had a beard. One of them had entered the registration point.
At about noon Zh.Kh. had left for lunch. When he had returned, the
OMON officers had told him that the armed men had produced
identification to show that they were FSB officers and had arrested
at the checkpoint a driver of a Volga whom they had put into their
Gazel. One of the FSB officers had got inside the Volga and the two
vehicles had left.
- U.V., interviewed on 24 April 2006 gave an account of
the events identical to that of Zh.Kh.
- While being interviewed on 29 April 2006, the
applicant confirmed her account of the events concerning the
abduction of her husband and stated that at the end of the year 2005
a certain M.Z. had told the mother of Ruslanbek Alikhadzhiyev that
the latter was in Khankala “in a very bad state”. The
applicant had not met M.Z., had not known where he lived and he had
contacted only her husband’s mother, who had died in February
2006.
- On
5 May 2006 the investigators interviewed Z.A. as a witness. She
stated that she had learnt of the circumstances of the abduction of
Ruslanbek Alikhadzhiyev from residents of Shali who had passed by the
checkpoint near Mesker-Yurt.
(d) Further investigative steps
- Between
12 September and 27 November 2005 the investigators requested a
number of State authorities, including the FSB, the Ministry of the
Interior, the United Group Alignment (“the UGA”) and
prosecutor’s offices of various districts in the Chechen
Republic to provide information on Ruslanbek Alikhadzhiyev’s
whereabouts, his possible arrest by those State authorities or any
special operations conducted with a view to arresting him. It appears
that no relevant information was obtained in reply.
- On 27 November 2005 the UGA informed the district
prosecutor’s office that from the information received by them
from the Special Forces Department of the Temporary Operational Group
of the Ministry of the Interior in the Northern Caucasus it followed
that at about 1 p.m. on 20 April 2005 FSB officers had
arrested Ruslanbek Alikhadzhiyev at checkpoint no. 112 near
Mesker-Yurt with a view to verifying his possible involvement in
illegal armed groups and had taken him away in his Gaz 3105
vehicle, licence plate no. A 577 BB 95 Rus. The letter also
stated that Ruslanbek Alikhadzhiyev was the brother of a rebel
warlord Ruslan Alikhadzhiyev.
- On
16 November 2005 the Chechen Department of the FSB informed the
investigators that the FSB Operational Bureau located in Khankala had
been closed down on an unspecified date and that the former authority
could not provide them with the information requested.
(e) Information relating to the decisions
to suspend and resume the investigation
- On
12 December 2005 the investigation in case no. 46130 was
suspended owing to the failure to identify the perpetrators.
- On
24 January 2006 the deputy prosecutor of the Chechen Republic set
aside the decision of 12 December 2005 as unfounded and premature.
The decision stated, among other things, that the investigators had
failed to interview the head of the Shalniskiy ROVD A.U., who had
stated in his letter of 12 September 2005 that Ruslanbek
Alikhadzhiyev had been arrested on 20 April 2005 at the checkpoint in
Mesker-Yurt by FSB officers from Khankala. Moreover, the
investigators had not interviewed a certain Z.Kh., from whose
explanations it followed that Ruslanbek Alikhadzhiyev had been
arrested by FSB officers. They had likewise failed to interview all
relatives and neighbours of Ruslanbek Alikhadzhiyev, with whom he
could have been staying.
- On
7 March 2006 the investigation was suspended owing to the failure to
identify those responsible for the abduction.
- On
27 March 2006 the prosecutor of the Shalinskiy District set aside the
decision of 7 March 2006 as premature and unfounded and ordered that
the investigation be resumed.
- On
27 April 2006 the investigation in case no. 46130 was suspended
owing to the failure to identify the persons implicated in the
abduction of the applicant’s husband.
- On
13 October 2009 the investigation in case no. 46130 was resumed
and unspecified instructions were given to the investigators with a
view to identifying the perpetrators.
- According
to the Government, the investigation in case no. 46130 is still
pending.
D. Court proceedings to have Ruslanbek Alikhadzhyev
declared a missing person
- On
27 June 2006 the Shali Town Court of the Chechen Republic granted the
applicant’s claim and declared Ruslanbek Alikhadzhiyev a
missing person. The judgment became final on 7 July 2006.
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 applicant’s complaint should be
declared inadmissible for non-exhaustion of domestic remedies. They
submitted that the investigation into the disappearance of Ruslanbek
Alikhadzhiyev had not yet been completed. They further argued that
the applicant, who had been granted victim status, could actively
participate in the investigation and that it was open to her to
complain of any omissions to prosecutors or courts. It was
furthermore open to her to apply to civil courts for compensation
under Articles 151 and 1070 of the Civil Code.
- The
applicant contested that objection. She stated that the criminal
investigation had proved to be ineffective. With reference to the
Court’s practice, she argued that she was not obliged to apply
to civil courts in order to exhaust domestic remedies.
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).
- The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119 121, 24 February 2005, and
Estamirov and Others, cited above, § 77). In the
light of the above, the Court confirms that the applicant was not
obliged to pursue civil remedies. The Government’s objection in
this regard is thus dismissed.
- As
regards criminal law remedies the Court observes that the applicant
complained to the law enforcement authorities about the kidnapping of
Ruslanbek Alikhadzhiyev and that an investigation has been pending
since 12 October 2005. The applicant and the Government dispute the
effectiveness of the investigation into 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 ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained under Article 2 of the Convention that her
husband had been deprived of his life by State agents 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. Submissions by the parties
- The
Government argued that the domestic investigation had obtained no
evidence that any special operations had been conducted on 20 April
2005 with a view to arresting Ruslanbek Alikhadzhiyev, that State
agents had been involved in his abduction or that he was dead. On the
basis of the materials obtained by the domestic investigation it
could only be stated that the applicant’s husband had been
abducted by unidentified persons from checkpoint “KPGE-112”,
located in the vicinity of Mesker-Yurt. The fact that the abductors
had freely passed through the checkpoint or had worn uniforms did not
prove that they were State agents. Members of illegal armed groups
often passed themselves for officers of law-enforcement authorities
during the counter-terrorist operation in the Chechen Republic.
- In
the Government’s submission, the investigation into the
abduction of Ruslanbek Alikhadzhiyev satisfied the Convention
requirements because the authorities had taken all relevant steps to
identify the persons involved in the crime. The fact that they
produced no results was not in itself an indication of inadequacy of
the investigation. The Government also pointed out that the applicant
had complained to the authorities about the abduction of her husband
only half a year after it had occurred.
- The
applicant submitted that there was evidence “beyond reasonable
doubt” that her husband had been abducted by State agents and
that he was to be presumed dead. In particular, she claimed that he
had been abducted from a checkpoint, which represented an area under
the full control of the authorities and that a number of witness
statements, including interview records submitted by the Government,
indicated that the abductors had been officers of the FSB. She
further submitted that the authorities had had a reason for abducting
her husband because of his brother’s activities as a speaker of
the Parliament of the Chechen Republic in 1999. Moreover, the
Government had failed to provide a convincing alternative explanation
for his kidnapping.
- As
regards the investigation conducted by the domestic authorities, the
applicant claimed that it was neither prompt nor effective. It was
instituted with a considerable delay, although the applicant had
immediately notified the authorities about the kidnapping. The
investigators had failed to interview the OMON officers of checkpoint
no. 112 about the abductors’ particular features, despite
the fact that they had stated that the abductors had stayed at the
checkpoint for about four hours. Moreover, in spite of numerous
contradictions in the statements by the OMON officers, the
investigators had failed to arrange for their confrontations. No
photofit images of the abductors had been compiled. No attempts had
been made to identify the abductors’ vehicle.
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 73
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 Ruslanbek Alikhadzhiyev
(i) General principles
- The
Court reiterates that, in the light of the importance of the
protection afforded by Article 2, it must subject deprivations of
life to the most careful scrutiny, taking into consideration not only
the actions of State agents but also all the surrounding
circumstances. Detained persons are in a vulnerable position and the
obligation on the authorities to account for the treatment of a
detained individual is particularly stringent where that individual
dies or disappears thereafter (see, among other authorities, Orhan
v. Turkey, no. 25656/94, § 326, 18 June 2002, and the
authorities cited therein). Where the events in issue lie wholly or
in large part within the exclusive knowledge of the authorities, as
in the case of persons under their control in detention, strong
presumptions of fact will arise in respect of injuries and death
occurring during that detention. Indeed, the burden of proof may be
regarded as resting on the authorities to provide a satisfactory and
convincing explanation (see Salman v. Turkey [GC],
no. 21986/93, § 100, ECHR 2000 VII, and Çakıcı
v. Turkey [GC], no. 23657/94, § 85, ECHR 1999 IV).
(ii) Establishment of the facts
- The
Court observes that 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, 18 January 1978, § 161, Series A no. 25).
- The
applicant alleged that her husband, Ruslanbek Alikhadzhiyev, had been
abducted on 20 April 2005 by State agents from checkpoint no. 112
in the vicinity of Mesker-Yurt and had then disappeared. Although the
applicant herself had not witnessed the kidnapping, she enclosed a
number of witness statements in support of her allegations.
- The
Government did not dispute most of the facts, as presented by the
applicant, and conceded that her husband had been abducted in the
circumstances described by her but stated that the domestic
investigation had not obtained evidence of State agents being
involved in the kidnapping.
- The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Ruslanbek Alikhadzhiyev, the Government
refused to produce most of the documents from the case file and that
they did not refer to any reasons which would justify their refusal
to do so.
- Against
this background and in view of the principles referred to above, the
Court considers that it can draw inferences from the Government’s
conduct in respect of the well-foundedness of the applicant’s
allegations.
- Having
regard to the applicant’s submissions and the witness
statements enclosed by her, the Court finds that, although she had
not been an eyewitness to the events described above, she presented
an overall coherent and convincing picture of Ruslanbek
Alikhadzhiyev’s abduction on 20 April 2005, in broad daylight,
at checkpoint no. 112 near Mesker Yurt, controlled by the
federal forces, by a group of armed and camouflaged men whom the
witnesses of the scene considered to be State agents.
- It
observes that the applicant’s account remained consistent both
throughout the domestic investigation and before this Court (see
paragraphs 12-22, 45, 46 and 53 above). It also cannot but note
that even the sparse materials from case file no. 46130 that the
Government agreed to disclose to the Court appear to confirm not only
the applicant’s account of the events surrounding her husband’s
abduction but also, more specifically, her allegation that the
abductors had been State agents (see paragraphs 43, 44, 51, 52 and 56
above).
- In
the Court’s view, the fact that a group of armed and
camouflaged men, who produced identification to confirm that they
belonged to law enforcement authorities, was allowed by
checkpoint servicemen to stay for several hours in an ambush there
and then proceed to arrest the applicant’s husband in broad
daylight and in the presence of a number of servicemen and other
witnesses rather supports the applicant’s allegation that those
were State agents and that they were conducting a special operation
aimed at arresting Ruslan Alikhadzhiyev (compare Mutsolgova and
Others v. Russia, no. 2952/06, § 100, 1 April 2010).
- The
Court notes that in her applications to the authorities the applicant
consistently maintained that her husband had been detained by State
agents and requested that the investigating authorities look into
that possibility. It further notes that after more than five years
the investigation has produced no tangible results.
- 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 (extracts)).
- Taking
into account the above elements, the Court is satisfied that the
applicant has made a prima facie case that her husband was abducted
by State agents. The Government’s statement that the
investigation had not found any evidence to support their involvement
in the kidnapping is insufficient to discharge them from the
above-mentioned burden of proof. Drawing inferences from the
Government’s failure to submit the remaining documents, which
were in their exclusive possession, or to provide another plausible
explanation for the events in question, the Court finds that
Ruslanbek Alikhadzhiyev was arrested on 20 April 2005 by State agents
during an unacknowledged security operation.
- There
has been no reliable news of Ruslanbek Alikhadzhiyev since the date
of the kidnapping. His name has not been found in any official
detention facility records. Lastly, 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 many
others, Bazorkina, cited above; 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, 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 State agents without any subsequent
acknowledgment of the detention, this can be regarded as
life-threatening. The absence of Ruslanbek Alikhadzhiyev or of any
news of him for more than five years supports this assumption.
- Accordingly,
the Court finds that the evidence available permits it to establish
that Ruslanbek Alikhadzhiyev must be presumed dead following his
unacknowledged detention by State agents.
(iii) The State’s compliance with
Article 2
- Article
2, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, from which no derogation is
permitted. In the light of the importance of the protection afforded
by Article 2, the Court must subject deprivation of life to the most
careful scrutiny, taking into consideration not only the actions of
State agents but also all the surrounding circumstances (see, among
other authorities, McCann and Others v. the United Kingdom, 27
September 1995, §§ 146 47, Series A no. 324, and Avşar
v. Turkey, no. 25657/94, § 391, ECHR 2001 VII
(extracts)).
- The
Court has already found it established that the applicant’s
relative must be presumed dead following unacknowledged detention by
State agents. Noting that the authorities do not rely on any ground
of justification in respect of any use of lethal force by their
agents, it follows that liability for his presumed death is
attributable to the respondent Government.
- Accordingly,
the Court finds that there has been a violation of Article 2 in
respect of Ruslanbek Alikhadzhiyev.
(b) The alleged inadequacy of the
investigation of the kidnapping
- The
Court reiterates that the obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the
State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and
freedoms defined in [the] Convention”, also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force (see, mutatis mutandis, McCann and Others,
cited above, § 161, and Kaya v. Turkey, 19 February
1998, § 86, Reports of Judgments and Decisions 1998 I).
The essential purpose of such an investigation is to secure the
effective implementation of the domestic laws which protect the right
to life and, in those cases involving State agents or bodies, to
ensure their accountability for deaths occurring under their
responsibility. This investigation should be independent, accessible
to the victim’s family and carried out with reasonable
promptness and expedition. It should also be effective in the sense
that it is capable of leading to a determination of whether or not
the force used in such cases was lawful and justified in the
circumstances, and should afford a sufficient element of public
scrutiny of the investigation or its results (see Hugh Jordan v.
the United Kingdom, no. 24746/94, §§ 105 and 109,
4 May 2001, and Douglas-Williams v. the United Kingdom
(dec.), no. 56413/00, 8 January 2002).
- The
Court notes at the outset that the Government refused to produce most
of the documents from case file no. 46132 and furnished only copies
of the documents summarised above. It therefore has to assess the
effectiveness of the investigation on the basis of the very sparse
information submitted by the Government and the few documents
available to the applicants that they provided to the Court.
- Turning
to the facts of the present case, the Court observes that the
applicant’s husband was kidnapped on 20 April 2005 and that the
investigation into his disappearance was opened on 12 October 2005,
that is, more than five months after it had occurred.
- The
parties disputed the exact date on which the applicant complained to
the authorities about the abduction of her husband. Whilst the
applicant claimed to have notified them shortly after the abduction,
submitting, however, that she had not kept copies of those
complaints, the Government alleged that the district prosecutor’s
office had first received the applicant’s complaint on 21
September 2005.
- The
Court points out that, when giving notice of the application to the
respondent Government, it had specifically requested them to furnish
copies of the applicant’s complaints about the abduction of her
husband, which had prompted the opening of the investigation. In
reply, they provided copies of her complaints to the ombudsman and
the President of the Chechen Republic dated 1 August 2005 and a copy
of her complaint to the Shalinskiy ROVD dated 20 September 2005,
without providing any further explanations (see paragraphs 37 and 39
above). They also furnished a copy of a prosecutor’s decision
from which it appears that the district prosecutor’s office
received the applicant’s complaint about the abduction on 8
September 2005, and not on 21 September 2005, as alleged by the
Government (see paragraph 38 above). At the same time it emerges from
the documents provided by them that the first investigative steps in
connection with Ruslanbek Alikhadzhiyev’s kidnapping were taken
on 28 August 2005 (see paragraph 41 above). Lastly, the Court
notes that in her complaints to the ombudsman and the President of
Chechnya dated August 2005 the applicant explicitly stated that
she had previously raised the matter before a number of
law-enforcement authorities, including the Shalinskiy ROVD, and that
her complaints had been left without reply. Nonetheless, she made no
mention of any specific dates.
- Against
this background the Court is unable to attribute the responsibility
for the delay in the opening of the investigation in the time span
between the abduction of Ruslanbek Alikhadzhiyev and 28 August 2005
to any of the parties in the present case. However, regard being had
to the information summarised above, it finds that the
law enforcement authorities must have been aware of the
kidnapping of the applicant’s husband by 28 August 2005 at the
latest and were thus under an obligation to investigate it in
accordance with the requirements of Article 2 of the Convention.
Nonetheless, it can be seen that the investigation into the abduction
of Ruslanbek Alikhadzhiyev was opened only a month and a half later.
Given the time which had already lapsed following the applicant’s
husband’s disappearance, the Court cannot but deplore this
procrastination on the part of the domestic authorities.
- It
further appears that, although the investigators interviewed several
witnesses and sent out requests for information to State authorities,
a number of crucial investigative steps were never taken.
- In
particular, there is no indication that the investigators had at any
point attempted to establish the itinerary of the abductors’
vehicle or to obtain further information on the licence plate of the
Gazel. No attempts have been made to establish the whereabouts of
Ruslanbek Alikhadzhiyev’s Volga.
- It
does not appear that the investigators interviewed all the OMON
servicemen and all the servicemen from the ROVD unit who had been on
duty at the checkpoint at the time of the abduction of the
applicant’s husband. Moreover, given certain contradictions in
the statements of the OMON officers, it remains unclear why the
investigators had not arranged for their confrontations. The Court is
further struck by the fact that although a number of witnesses
interviewed by the investigators gave descriptions of the abductors
of the applicant’s husband, no attempts have been made to
compile their photofit images.
- It
also remains unexplained why, despite the statements of witnesses who
submitted that the abductors had introduced themselves as FSB
officers from Khankala and had produced the relevant identification,
the investigators did not genuinely pursue this or try to obtain
information in that respect.
- It
is obvious that, if they were to produce any meaningful results,
these investigative measures should have been taken immediately after
the crime was reported to the authorities, and as soon as the
investigation commenced. The delays and omissions, 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 matter (see Öneryıldız
v. Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court further notes that although the applicant was eventually
granted victim status in the proceedings in case no. 46132, it
is not persuaded that she was informed of any developments in the
investigation (see paragraph 33 above). 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.
- Lastly,
the Court notes that the investigation was adjourned and resumed on
numerous occasions. It also appears that there were lengthy periods
of inactivity on the part of the prosecuting authorities when no
investigative measures were being taken.
- 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 been repeatedly
suspended and resumed and plagued by inexplicable delays and
omissions, has been pending for many years with no tangible results.
- Furthermore,
the applicant, who had no access to the case file and was not
properly informed of the progress in the investigation, particularly
at its initial and most critical stage, could not have effectively
challenged any acts or omissions of the investigating authorities
before a court. Moreover, owing to the time which had elapsed since
the events complained of, certain investigative measures that ought
to have been carried out much earlier could no longer be usefully
conducted. Therefore, it is highly doubtful that the remedy relied on
would have had any prospect of success.
- In
the Court’s opinion, the Government also failed to demonstrate
how the applicant having victim status had any bearing on the
above described situation (see also paragraphs 33 and 34 above).
- In
sum, the Court finds that the remedies relied on by the Government
were 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 Ruslanbek
Alikhadzhiyev, in breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant relied on Article 3 of the Convention, submitting that as a
result of her husband’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 submitted 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 reiterated her complaint.
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, cited above,
§ 358, and Imakayeva, cited above, § 164).
- In
the present case the Court notes that the disappeared person is the
applicant’s husband. Although the applicant did not witness his
abduction, for more than five years she has not had any news of him.
During this period the applicant has made enquiries of various
official bodies, both in writing and in person, about him. Despite
her attempts, the applicant has never received any plausible
explanation or information about what became of her husband following
his detention. The responses she received mostly denied State
responsibility for her husband’s abduction 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 in respect of the applicant.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant further stated that Ruslanbek Alikhadzhiyev 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 Ruslanbek Alikhadzhiyev 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 Ruslanbek Alikhadzhiyev was
abducted by State servicemen on 20 April 2005 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 relative 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 Ruslanbek Alikhadzhiyev
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.
V. 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 had not prevented her from using them. The applicant had
had an opportunity to challenge the acts or omissions of the
investigating authorities in court. They added that participants in
criminal proceedings could also claim damages in civil proceedings,
and referred to cases where victims in criminal proceedings had been
awarded damages from state bodies. In sum, the Government submitted
that there had been no violation of Article 13.
- 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 it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
- The
Court reiterates that in circumstances where, as here, a criminal
investigation into the disappearance has been ineffective and the
effectiveness of any other remedy that might 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 (see Khashiyev and Akayeva, cited above,
§ 183).
- 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 issue arises in respect of Article 13, read 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).
VI. 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. Damage
- The
applicant did not submit any claims for compensation in respect of
pecuniary damage. She claimed compensation for non pecuniary
damage for the suffering she had endured as a result of the loss of
her husband, the indifference shown by the authorities towards her
and the failure to provide any information about the fate of her
close relative, leaving the determination of its amount to the Court.
- The
Government submitted that, should the Court find a violation of the
applicants’ Convention rights, a finding of a violation would
constitute sufficient just satisfaction.
- 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 husband. The applicant herself has been found to
have been 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 60,000 euros (EUR) in respect of non-pecuniary
damage, plus any tax that may be chargeable to her.
B. Costs and expenses
- The
applicant was represented by lawyers from the NGO EHRAC/Memorial
Human Rights Centre. The aggregate claim in respect of costs and
expenses related to the applicant’s legal representation
amounted to 1,779.25 pounds sterling (GBP), to be paid into the
representatives’ account in the United Kingdom. The amount
claimed was broken down as follows:
(a) GBP
800 for seven hours of legal drafting of documents submitted to the
Court at a rate of GBP 100 and 150 per hour;
(b) GBP
849 for translation costs, and
(c) GBP
130 for administrative and postal costs.
- The
Government pointed out that the applicant should be entitled to the
reimbursement of her costs and expenses only in so far as it had been
shown that they had actually been incurred and were reasonable as to
quantum (see Skorobogatova v. Russia, no. 33914/02, § 61,
1 December 2005).
- Having
regard to the details of the information and legal representation
contracts submitted by the applicant, 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 incurred for legal representation
were necessary, the Court accepts that this case was rather complex
and required a certain amount of research and preparation.
- Having
regard to the details of the claims submitted by the applicant, the
Court awards her EUR 1,997 together with any value-added tax that may
be chargeable to them, the net award to be paid into the
representatives’ bank account in the United Kingdom, as
identified by the applicant.
C. 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 join to the merits the Government’s
objection as to non-exhaustion of criminal domestic remedies and
rejects it;
- Declares the application admissible;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Ruslanbek
Alikhadzhiyev;
- 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 Ruslanbek
Alikhadzhiyev disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicant’s
mental suffering;
- Holds that there has been a violation of
Article 5 of the Convention in respect of Ruslanbek
Alikhadzhiyev;
7. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violation of Article 2 of the
Convention;
8. Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3 and 5;
- 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 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicant;
(ii) EUR 1,997
(one thousand nine hundred and ninety seven 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 United Kingdom;
(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 24 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
