FIRST SECTION
CASE OF
AVKHADOVA AND OTHERS v. RUSSIA
(Application no.
47215/07)
JUDGMENT
STRASBOURG
14 March 2013
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 Avkhadova and Others v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 February 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
47215/07) 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 five Russian nationals, listed in paragraph 5 below (“the
applicants”), on 15 February 2007.
The applicants were represented by lawyers of European
Human Rights Advocacy Centre/Memorial. 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 25 June 2009 the President of the First
Section decided to apply Rule 41 of the Rules of Court, to grant priority to
the application and to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (former Article 29 § 1).
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 applicants are:
Mrs Nurzhan Avkhadova, born in 1956;
Mrs Limon Avkhadova, born in 1984;
Mrs Luisa Avkhadova, born in 1986;
Mrs Khava Avkhadova, born in 1991 and
Mrs Kheda Avkhadova, born in 1992.
The first applicant is the mother of Mr Vakhit
Avkhadov, born in 1979. The second to fifth applicants are Vakhit Avkhadov’s
sisters. The applicants reside in the town of Urus-Martan, the Chechen Republic.
A. Disappearance of Vakhit Avkhadov
1. The applicants’ account
The account of the events below is based on the information contained
in the application form; the first applicant’s written statement made on
4 June 2007; a written statement of 5 June 2005 by R.A., the first
applicant’s daughter, who is not an applicant in the present case; a written
statement by the applicants’ neighbour, S.M., made on 8 June 2007; and a
written statement by M.A., a resident of Urus-Martan, made on 4 December 2009.
On 24 April 2001
the first applicant, Vakhit Avkhadov and R.A. were at home, at 104 (subsequently
re-numbered as 112) Sovetskaya Street in Urus-Martan.
At about 6 a.m. on 24 April 2001 the first applicant was woken up by a noise
coming from outside. Through a window she saw several armed men climb over the
fence and into the courtyard. She ran to the room where Vakhit Avkhadov was
sleeping and alerted him about the intrusion. She then rushed downstairs to the
front door, through which several armed men were already entering the house.
Two of them guarded the front door while two others immediately started
searching the house. All of the intruders were wearing new camouflage uniforms
and were armed with submachine guns. While the first applicant was by the front
door, she noticed behind the fence two armoured personnel carriers (hereinafter
also “APC”) surrounded by numerous armed men wearing green camouflage uniforms.
Unlike the uniforms of the men who had burst into the house, the uniforms of
those beside the APCs were very dirty.
The armed intruders neither identified
themselves nor explained the reasons for their intrusion. One of them asked the
first applicant who was at home. She tried to ask him who they were looking for
but by that time two intruders had already spotted Vakhit Avkhadov. One of them,
a tall man, pointed his gun at Vakhit Avkhadov and ordered him in Russian to
put his arms behind his neck and get out of his room. Vakhit Avkhadov was taken
to the hallway and ordered to kneel. When the tall intruder raised his leg to
kick Vakhit Avkhadov, the first applicant shouted at him, asking him why he was
doing that to her son, but was ordered to be silent. At the same moment R.A.
ran from her room and tried to approach Vakhit Avkhadov, but one of the men threatened
her with his gun and made her return to her room.
The intruders then took Vakhit Avkhadov into the
courtyard and placed him face-down on the ground. He was wearing only his
underwear so the first applicant brought some of his clothes outside, in
particular, a red T-shirt, a warm sports jacket with a white stripe on a sleeve
and a black raincoat. She asked the intruders to allow her son to get dressed.
One of them agreed, urging Vakhit Avkhadov to do so quickly, and even passed
him a pair of shoes which had been by the front door.
Shortly thereafter the armed men who were
searching the house went outside and asked the first applicant for Vakhit
Avkhadov’s identity papers. She started crying and begged them not to take him
away. She asked them at least to explain why they were arresting him. Vakhit
Avkhadov asked her to calm down and to comply with the order. He explained to her
where he kept his temporary identity card and she brought it outside and handed
it over to one of the armed men.
The intruders then
covered Vakhit Avkhadov’s head with his raincoat and led him outside the
courtyard. The first applicant and R.A. followed them outside, where they saw
three APCs and two UAZ all-terrain vehicles, and numerous armed men in
camouflage uniforms and masks. All of the vehicles’ registration plates had
been obscured with mud. The intruders put Vakhit Avkhadov in an APC and then
the convoy of two APCs, two UAZ vehicles and a third APC drove off towards the
centre of Urus-Martan.
According to M.A., at
about 5.30 a.m. on 24 April 2001 a group of armed servicemen driving an
APC broke the gate to the courtyard of her family house with their APC.
Immediately after that the servicemen burst into her house, handcuffed her son
L.-A.A., seized his identity papers and placed him in one of their two APCs,
both parked at the house. The convoy of APCs then took Bolnichnaya street and
turned into Sovetskaya street, where the applicants resided.
2. The Government’s account
The Government submitted that the domestic
investigation had obtained no evidence that Vakhit Avkhadov had been abducted
by State agents.
B. The search for Vakhit Avkhadov and the related investigation
1. The applicants’ account
(a) The applicants’ search for Vakhit Avkhadov
On 24 April
2001, immediately after the departure of the armed men with Vakhit Avkhadov,
the first applicant’s neighbours came to her house. The first applicant and one
of her neighbours rushed to the centre of Urus-Martan. On the way, the
women allegedly met Mrs K., who told them that her son had also been abducted
by Russian servicemen in several APCs and that her husband, Mr K., would wait
for her in the town centre in order to search for their abducted son. The first
applicant decided to follow Mrs K. to the centre.
When the women reached the centre of
Urus-Martan, Mr K. was already waiting for them. They set off in his minibus,
following the mud tracks left on the road by the APCs. The tracks led in the
direction of the village of Tangi-Chu. Furthermore, residents of Urus-Martan
whom the first applicant and her fellow travellers met on the way indicated to
them the direction taken by the APCs. In that manner the first applicant and Mr
and Mrs K. reached the grounds of the Western Zone Alignment of the armed forces
(группировка
«Запад»), who
were stationed at the material time to the south-west of Urus-Martan. The first
applicant and her fellow travellers did not catch up with the APCs but clearly
saw fresh tracks made by them at the entrance to the military grounds. They
then attempted to question the servicemen present about those APCs but did not
succeed in getting any information. At the same time local residents allegedly
told the first applicant that the APCs had been “working hard” on the two
previous nights, bringing to the military grounds young men of Chechen ethnic
origin. It appears that the first applicant then returned home.
According to the
first applicant, several young men had been apprehended in Urus-Martan on 24
April 2001, including Mr L.-A.A., the son of M.A. and the then head
of the Urus-Martan town administration, and also Mr G., a son of the person who
subsequently held that post.
On the same
date, the first applicant contacted, both orally and in writing, the local Department
of the Interior, the prosecutor’s office, the office of the military commander
and the local administration, complaining about the abduction of Vakhit
Avkhadov.
According to the first applicant, on 26 April
2001 an elderly man who had identified himself as “Ali” had come to her house.
Ali allegedly told her that on 24 April 2001 he had been apprehended by Russian
servicemen together with Vakhit Avkhadov and several other men from Urus-Martan.
They had all been taken to the grounds of the Western Zone Alignment of the armed
forces and placed in pits. Two to three hours later the servicemen had taken
Vakhit Avkhadov and L.-A.A. out of the pit and led them away, following which
Ali had heard the sound of a helicopter. On the same day Ali, Mr G. and the son
of Mr and Mrs K. had been released.
On the following days the first applicant
visited Mr and Mrs K. and asked them to testify about the events of 24 April
2001. However, they refused to do so because they feared for their lives. They
told the first applicant that they had sent their son outside the Chechen Republic, also fearing for his life.
On an unspecified date the first applicant met
with members of the A. family, whose son had also been apprehended on 24 April
2001, and they agreed to join together in their search efforts.
On an unspecified date in June 2001 the first
applicant and the A. family allegedly managed to talk to a serviceman from the
Western Zone Alignment. He allegedly confirmed that Vakhit Avkhadov and L.-A.A.
had been brought to the grounds of the Western Zone Alignment and placed in
pits. He did not know their names but described their appearance. In
particular, he said that L.-A.A had had grey hair and had been wearing a red T-shirt,
which details were confirmed by the A. family. The serviceman also stated that at
9 a.m. on 24 April 2001 two persons, one of them tall and the other short and
stout, had been taken away in a helicopter. According to the first applicant,
the description of the second person corresponded to that of her son because he
was 165 cm tall and corpulent. Moreover, the description of the “tall man”
corresponded to L.-A.A. Lastly, the serviceman allegedly also described the
appearance of those who had been released on 24 April 2001 (Ali, Mr G. and
the son of Mr and Mrs K). In the submission of M.A., on 24 April 2001 and on
several following days when she and her husband had applied to the Urus-Martan
military commander’s office, the Western Zone Alignment and the local
administration, the serviceman had confirmed that her son L.-A.A. had been
arrested and had even told her that they had given him clothing because he had
been arrested in a T-shirt and jeans and without shoes.
According to the first applicant, despite her immediate
complaints to various authorities about the abduction of Vakhit Avkhadov, investigators
did not call at her home until two months after the events of 24 April
2001 (see below). The investigators questioned the first applicant, inspected
her house and left.
The applicants have had no news of Vakhit
Avkhadov since his apprehension on 24 April 2001.
(b) Investigation into the abduction of Vakhit
Avkhadov
On 7 May
2001 the first applicant submitted a further complaint about her son’s
abduction. On that occasion she lodged the complaint with the Urus-Martanovskiy
District Court. In her complaint she submitted that she had previously applied
to various authorities concerning her son’s disappearance but had received no
responses. There is no indication that her complaint was ever answered.
On 28 July 2001 the prosecutor’s office of the Chechen Republic (hereinafter also “the republican prosecutor’s office”) forwarded a complaint
lodged by the first applicant (the date of the complaint was not indicated)
about the abduction of Vakhit Avkhadov to the prosecutors’ office of the
Urus-Martanovskiy District (“the district prosecutor’s office”). The latter
forwarded the complaint to the Urus-Martanovskiy Temporary Department of the
Interior (hereinafter also “the VOVD”), instructing it to verify the first
applicant’s submissions and, should they be confirmed, to open a criminal
investigation, take the basic investigative measures and return the case to the
district prosecutor’s office.
On 19 February 2002 the district prosecutor’s
office notified the first applicant that on 16 August 2001 it had opened a
criminal investigation into the abduction of Vakhit Avkhadov under Article 126
§ 2 of the Criminal Code (aggravated abduction). The case file had been assigned
the number 25350. The investigation appears to have been suspended between
16 August 2001 and 19 February 2002 as the letter also stated that the
investigation had been resumed, but did not specify the relevant date.
On 20 May 2002 the first
applicant complained to the military commander of the Urus-Martanovskiy
District that at 5.45 a.m. on 24 October 2001 about 20 servicemen in masks
and camouflage uniforms had come to her house in two APCs the number plates of
which had been obscured with mud, had burst into the house and taken away
Vakhit Avkhadov. She further submitted that she had followed the intruders to the
village of Tangi-Chu, where the servicemen had been holding her son and from
where he had been taken in a helicopter to Khankala. The first applicant
submitted that she had not seen her son since, and requested assistance in
establishing his whereabouts. On 29 and 31 May 2001 the first applicant
addressed letters along the same lines to the head of the VOVD and the head of
the administration of the Chechen Republic, Mr A. Kadyrov.
On 16 July 2002 the South Federal Circuit Department
of the Prosecutor General’s Office forwarded a further complaint lodged by the
first applicant about the abduction of Vakhit Avkhadov to the republican
prosecutor’s office for examination.
On 23 July 2002 the office of the head of the administration
of the Chechen Republic replied to the first applicant that they were
supervising the search for Vakhit Avkhadov and had forwarded her complaint to
the law-enforcement officials in charge of it.
On 24 July 2002 the republican prosecutor’s
office forwarded the first applicant’s complaint about the abduction of Vakhit
Avkhadov to the district prosecutor’s office and instructed the latter to
verify the submissions contained therein and to append the complaint to the
case file.
On 13 August 2002 the
first applicant wrote to the district prosecutor’s office, asking to be granted
victim status in connection with the proceedings in case no. 25350. She does
not appear to have received a reply to her request.
On 16 August 2002 the Chief Military Prosecutor’s
office transferred a further complaint lodged by the first applicant about the
abduction of Vakhit Avkhadov to the military prosecutor of the North Caucasus
Military Circuit for examination. The latter forwarded the complaint to the
republican prosecutor’s office, which, in its turn, transferred it to the
district prosecutor’s office.
On 6 September 2002 the Chief Military
Prosecutor’s office forwarded yet another complaint lodged by the first
applicant about the abduction of her son to the military prosecutor of military
unit no. 20102 for examination.
On 17 October 2002 the military commander’s
office of the Chechen Republic replied to the first applicant that they had no
information on the apprehension or whereabouts of Vakhit Avkhadov.
On 26 December 2002 the Commission on Human
Rights with the President of the Russian Federation transferred a complaint
lodged by the first applicant about the abduction of Vakhit Avkhadov to the
South Federal Circuit Department of the Prosecutor General’s Office. The latter
notified the first applicant by a letter of 10 January 2003 that it had
forwarded the complaint to the republican prosecutor’s office for examination.
On 16 May 2003 the Chief Military Prosecutor’s office
forwarded complaints lodged by the first applicant on 8 and 12 April 2003 to
the military prosecutor of the United Group Alignment (“the UGA”) for examination.
On 9 June 2003 the republican prosecutor’s
office transferred the first applicant’s complaint about the abduction of her
son to the district prosecutor’s office. The latter authority was instructed to
verify the circumstances of Vakhit Avkhadov’s disappearance and, in the event
that servicemen of the federal armed forces were implicated in the abduction,
to refer the case to a military prosecutor’s office for investigation. The
district prosecutor’s office was also requested to provide the republican
prosecutor’s office with detailed information on the investigation results and,
if the investigation had been suspended, to report on the justification for any
such decision. Lastly, the district prosecutor’s office was instructed to
apprise the first applicant of the results of the investigation and the
measures taken to establish the whereabouts of Vakhit Avkhadov and to identify
those responsible. A copy of the letter was forwarded to the first applicant.
On 17 June 2003 the military prosecutor’s office
of military unit no. 20102 replied to the first applicant that her
complaint had contained no information on the possible involvement of
servicemen of the federal forces in the abduction of Vakhit Avkhadov.
In a letter dated
15 August 2003 the military prosecutor’s office of military unit no. 20102
notified the first applicant, in reply to her complaint, that they had made
enquiries with the “security forces” (силовые структуры)
of the Urus-Martanovskiy District about special operations carried out on 24
April 2001. According to the replies received and the reports on the special
operations compiled by representatives of the federal forces and the head of
the local administration, Vakhit Avkhadov had not been arrested in the course
of those special operations. Having found no evidence of the implication of
servicemen of the federal forces in the abduction of the first applicant’s son,
the military prosecutor’s office forwarded the first applicant’s complaint to
the district prosecutor’s office for examination.
Subsequently, the
applicants systematically contacted the district prosecutor’s office. Its
officials allegedly asked them not to apply to them in writing, since compiling
formal replies to their queries would take time that could be used for the
investigation of the case. The applicants followed their instruction.
On 13 June 2006 the
first applicant complained to the district prosecutor’s office about the
procrastination in the investigation into the abduction of Vakhit Avkhadov, the
lack of any information on its progress and the absence of any tangible results.
She asked to be granted victim status in connection with the proceedings in
case no. 25350 and also sought access to the case file and the resumption of
the investigation in the event that it had been suspended.
In reply, on 15 June 2006 the district
prosecutor’s office notified the first applicant that on an unspecified date
the investigation had been resumed and that operational and search measures
aimed at establishing the whereabouts of Vakhit Avkhadov and identifying those
responsible were under way. The first applicant was summoned to the district
prosecutor’s office on 19 June 2006.
On 19 June 2006 the first applicant was granted
victim status in connection with the proceedings in case no. 25350. She was
notified of the decision on the same day.
On 8 June 2007 the
first applicant applied to the district prosecutor’s office, seeking access to
case file no. 25350. There is no indication that she received a reply to her
request.
2. Information submitted by the Government
Despite specific requests by the Court, the
Government refused to disclose most of the contents of criminal case no. 25350,
referring to Article 161 of the Russian Code of Criminal Procedure. They
only provided copies of: several decisions to open, suspend and resume the
investigation; records of several witness interviews; requests for information
addressed to various State authorities and some of the replies to them. Some of
the documents submitted by the Government were illegible and others were only
partially legible. In so far as the documents submitted by the Government were
legible, the information they contained may be summarised as follows.
(a) Opening of the investigation and transfer of the
case file between various authorities
On 25 May
2001 the first applicant complained to the Chechen ombudsman about the
abduction of her son.
On 1 August 2001 the acting prosecutor of the
Urus-Martanovskiy District forwarded the first applicant’s complaint about her
son’s abduction to the Urus-Martanovskiy VOVD and instructed the latter
authority to immediately open a criminal investigation, take the basic
investigative steps and return the opened case file to the district prosecutor’s
office, should the first applicant’s submissions be confirmed. It follows from
the stamp on the document that it was received by the VOVD on 5 August 2001. It
is unclear from the document of 1 August 2001 which of the applicant’s
complaints was forwarded to the VOVD, to which authority it was addressed and
how it was dated.
On 16 August 2001 the Urus-Martanovskiy VOVD
instituted criminal proceedings concerning Vakhit Avkhadov’s abduction. The
decision stated that at about 5 a.m. on 24 April 2001 he had been taken away
from his home at 112 Sovetskaya street in Urus-Martan by unidentified persons
in camouflage uniforms and that his whereabouts remained unknown.
By a decision of 11 September 2001 the VOVD
transferred criminal case no. 25350 to the district prosecutor’s office
for further investigation.
(b) Interviewing of witnesses
On 5 August (or
September) 2001 (the date is partly illegible) a police officer of the
Urus-Martanovskiy Department of the Interior took a written statement from the
first applicant (объяснение).
According to the statement, at about 6 a.m. on 24 April 2001 a group of armed
camouflaged men had burst into her house and taken away her son, Vakhit
Avkhadov, holding the first applicant and her daughters at gunpoint. The first
applicant had followed the abductors’ APC in the direction of Tangi-Chu.
According to statements
by Z.B. and Sh.S., given on 6 and 8 August 2001, they had learnt from
Vakhit Avkhadov’s relatives that the latter had been abducted from his house by
men in camouflage uniforms. From the relevant documents it does not appear that
either Z.B. or Sh.S. resided in the same street as the applicants.
By a decision of 16
August 2001 the first applicant was granted victim status in the proceedings
concerning her son’s abduction. The text of the decision did not mention
whether she had been notified of that and if so, when, and did not contain her
signature to that effect.
According to the record
of an interview of the first applicant of 16 August 2001, at about 5 a.m.
on 24 April 2001 a group of armed men in camouflage uniforms and masks had broken
into the courtyard of her house by climbing over the fence. Five armed men had
entered the house and taken away her son, who had been wearing a red T-shirt
and a sports jacket with a white stripe on a sleeve. The intruders had spoken Russian
and when they had taken her son outside they had put a raincoat over his head. The
first applicant had noticed two APCs with number plates obscured with mud, and several
more servicemen outside the courtyard. The two APCs went off in the direction
of the village of Tangi-Chu. After the abduction the first applicant had immediately
gone to the military commander’s office and had also contacted the prosecutor’s
office. However, she had had no news of her son.
According to the
Government, Mr N.S., interviewed as a witness on 17 August 2001, had stated
that Vakhit Avkhadov had been his friend and that he had learnt about his
abduction on 24 April 2001 from his mother. On that day six men had been
abducted from Urus-Maran. Four had returned home, but Vakhit Avkhadov and
L.-A.A. had not. A copy of the relevant interview record was not submitted by
the Government.
T.Yu., interviewed
as a witness on 18 August 2001, stated that the first applicant was his sister
and that on 26 April 2001 she had visited him in Grozny and told him about the
abduction of her son on 24 April 2001 by armed camouflaged men in two APCs.
T.Yu. had subsequently assisted her in the search for Vakhit Avkhadov, during which
they had learnt that on 24 April 2001 six men had been abducted from
Urus-Martan, including Vakhit Avkhadov and L.-A.A. Four of them had
subsequently been released.
According to the interview
records of N.S. and A.B., both residents of Urus-Martan, dated 18 August 2001,
they had learnt about Vakhit Avkhadov’s abduction from his relatives. From the
relevant interview records it transpires that neither N.S. nor A.B. resided in the
same street as the applicants.
According to the
Government, on 19 June 2006 the first applicant was again granted victim status
(повторно признана потерпевшей).
The record of her interview of the same date shows that she confirmed her
earlier submissions to the investigation concerning the circumstances of her
son’s abduction: at about 6 a.m. on 24 April 2001 he had been taken away by
armed camouflaged men in two APCs, which had left in the direction of Tangi-Chu.
Another resident of Urus-Martan, L.-A.A., had been abducted on the same day.
(c) Further investigative steps
On 19 August 2001 the VOVD requested the
Urus-Martan military commander’s office and the Chernokozovo remand prison to
inform it whether Vakhit Avkhadov had been arrested by, or detained on the
premises of, those authorities.
On an unspecified date in August 2001 the
military commander’s office replied by letter to the VOVD that Vakhit Avkhadov
had not been brought to that authority on 24 April 2001.
In a letter dated 15 June 2006 the district
prosecutor’s office informed the first applicant that a criminal case into the
abduction of her son had been opened; that operational and search measures
aimed at identifying those responsible and establishing his whereabouts were
under way; and that she had been summoned to the prosecutor’s office with a
view to carrying out unspecified investigative measures.
On 15 and 16 June 2006 the district prosecutor’s
office asked various hospitals, law-enforcement authorities and detention
facilities in the Chechen Republic and neighbouring regions, whether Vakhit
Avkhadov had applied to them for medical assistance, had been arrested or held
in detention by them, and whether they were in possession of compromising
materials (компрометирующий материал)
in connection with him. From the replies of various authorities enclosed by the
Government, it appears that the addressees of those requests for information
denied having arrested or detained the missing man, and claimed that he had not
contacted them for medical assistance and that they had no compromising
material in connection with him.
In a report
(рапорт) of 14
July 2006 the Department of the Interior of the Urus-Martanovskiy District
(hereinafter also “the Urus-Martanovskiy ROVD” or “the ROVD”), informed the
district prosecutor’s office that despite a door-to-door check (подворный обход)
carried out in Urus-Martan, it had proved impossible to identify
witnesses to the abduction of Vakhit Avkhadov because he had been abducted early
in the morning.
On 11 July 2006 the district prosecutor’s office
instructed the ROVD to verify whether Vakhit Avkhadov had been arrested by
servicemen of the Urus-Martanovskiy District and held in the district’s detention
facilities. On the same date the district prosecutor’s office sent out similar
requests to departments of the interior of other districts in the Chechen Republic. Those requests do not appear to have resulted in any relevant
information.
(d) Information concerning the decisions to suspend
and resume the investigation and the applicants’ access to the case file
On 16 October 2001 the
district prosecutor’s office decided to suspend the investigation in case
no. 25350 and to send a copy of the decision to the prosecutor of the
Urus-Martanovskiy District. However, the decision contained no reference as to
whether the first applicant was to be notified and there is no indication that
she was so informed.
On 15 June 2006 the acting prosecutor of the
Urus-Martanovskiy District overturned the decision of 16 October 2001 to
suspend the investigation on the grounds that it was premature and unfounded,
and ordered it to be resumed.
On 13 July 2006 the district prosecutor’s office
suspended the investigation of Vakhit Avkhadov’s abduction owing to the failure
to identify those responsible.
In a letter of 16 June 2007 the deputy prosecutor
of the Urus-Martanovskiy District replied to a request for information
about the investigation from the first applicant, saying that on 15 June 2006
the investigation in case no. 25350 had been resumed and that on 19 June
2006 she had been granted victim status in those proceedings.
On 8 June 2007 the first applicant had asked the
district prosecutor’s office to grant her access to the case file concerning
her son’s abduction and permission to make copies from it. She had submitted
that she had had no information about the investigative steps taken and had
received no reply to her previous request of 13 June 2006 for access to the
case file. There is no indication that that request was ever replied to.
According to the
Government, the investigation into the abduction of the applicants’ relative is
pending.
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. Submissions by the parties
The Government contended that the complaint
should be declared inadmissible for non-exhaustion of domestic remedies. They
submitted that the investigation into Vakhit Avkhadov’s disappearance had not
yet been completed. They further claimed that it had been open to the
applicants to challenge the acts or omissions of the investigating authorities
before the courts under Article 125 of the Code of Criminal Procedure
(hereinafter also “the CCP”). In that respect they referred to the cases of A.,
S. and E. Furthermore, given that the first applicant had been granted victim
status, she could have lodged complaints or petitions with the investigating
authorities. Lastly, the Government asserted that it had been open to the
applicants to pursue civil complaints for compensation of non-pecuniary damage under
Articles 151 and 1069 of the Civil Code or to ask the civil courts to declare
their missing relative dead, but that they had failed to do so.
The applicants contested that objection. They
stated that the criminal investigation had proved to be ineffective. As regards
the Government’s reference to the cases of A., S. and E., the applicants
asserted that, to their knowledge, although the domestic courts in those cases had
granted those persons’ complaints about the decisions to suspend the
investigations or instructed the investigating authorities to grant them access
to the case files, that had not influenced the relevant investigations in any
way and they had remained ineffective. With reference to the Court’s practice,
the applicants argued that they were not obliged to apply to the 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).
As regards a civil action to obtain redress for
damage sustained through the allegedly 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, §§ 119-21, 24 February
2005, and Estamirov and Others, cited above, § 77). In the Court’s view,
the same holds true for their submission concerning the applicants’ ability to
apply to the civil courts to have their relative declared missing or dead. In
the light of the above, the Court confirms that the applicants were not obliged
to pursue civil remedies.
As regards the parties’ submissions concerning
the criminal investigation, the Court observes that the applicants complained
to the law-enforcement authorities shortly after the abduction of Vakhit
Avkhadov and that an investigation has been pending since 16 August 2001. The
applicants and the Government dispute the effectiveness of the investigation of
the abduction.
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 applicants’ 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. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The applicants complained that Vakhit Avkhadov
had been arrested by Russian servicemen, that he had then disappeared, and that
the domestic authorities had failed to carry out an effective investigation of
the matter. They relied on Article 2 of the Convention, which 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 applicants had failed
to submit evidence “beyond reasonable doubt” that their relative had been
abducted by State agents. The fact that the abductors had worn military
uniforms and masks, had spoken Russian and had used APCs did not prove that
they had belonged to Russian military forces. Vakhit Avkhadov’s body had never
been discovered and there was no evidence that any special operations had been
conducted in Urus-Martan on 24 April 2001, in particular, with a view to
arresting him.
As regards the investigation, the Government
submitted that it was not a matter of result but of means. Various complex investigative
steps, including interviewing witnesses and sending out requests for
information, had been carried out in the framework of the criminal case concerning
the abduction of the applicants’ relative. The fact that those measures had
produced no positive results could not be attributed to the Russian
authorities.
The applicants claimed that there existed
evidence “beyond reasonable doubt” that Vakhit Avkhadov had been abducted by
servicemen on 24 April 2001 and should be presumed dead. In particular, they
stressed that the Government had not disputed any of the circumstances
surrounding their relative’s abduction, as presented by the applicants, and
invited the Court to draw inferences from the Government’s refusal to produce
an entire copy of the investigation file. They further submitted that the
abductors had been armed and had worn camouflage uniforms and masks. They had
spoken Russian and, more importantly, had arrived in several APCs, in which
they had moved around freely despite the curfew and the presence of checkpoints,
which at the material time had blocked the entry to and exit from the village.
Moreover, the applicants emphasised that at about the same time on the same
date, several other men had been abducted from their homes in Urus-Martan and
that those who had been released had stated that they had been detained by
servicemen and held on the premises of their military base. In the applicants’
submission, the Government had failed to adduce any evidence that insurgents or
private persons could have used such military vehicles as APCs at the material
time, and to do so was unrealistic.
The applicants further argued that the
investigation into their relative’s disappearance had been pending for more
than eight years. It had not been promptly opened, despite the fact that the
first applicant had immediately alerted the authorities to the abduction of her
son. None of the key witnesses, whose names had been provided by the first
applicant, had been interviewed. The investigators had failed to identify and
interview law-enforcement officials from the Western Zone Alignment
concerning the arrival of the APCs with the abductors of the applicants’
relative at their base on 24 April 2001. Other key investigative steps had not
been carried out. The applicants had not been properly informed of the progress
of the investigation, so as to ensure an adequate protection of their
interests. In sum, the applicants concluded that the investigation into Vakhit
Avkhadov’s disappearance had not satisfied the Convention requirements of
effectiveness.
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. 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 78 above). The complaint under Article 2 of the Convention must
therefore be declared admissible.
2. Merits
(a) Alleged violation of the right to life of Vakhit
Avkhadov
(i) General principles
The Court reiterates that, given 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 at issue lie wholly or to a large extent
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) The 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,
§§ 103-09, 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 applicants alleged that at about 6 a.m. on
24 April 2001 their relative, Vakhit Avkhadov, had been abducted by servicemen
and had then disappeared. They invited the Court to draw inferences as to the
well-founded nature of their allegations from the Government’s failure to
provide the documents requested from them. They submitted that several people
had witnessed Vakhit Avkhadov’s abduction and that at the same time on the same
day further men had been abducted in the same manner. The applicants enclosed
those witnesses’ statements to support that submission.
The Government did not contest any of the
applicants’ factual allegations and conceded that Vakhit Avkhadov had been
abducted on 24 April 2001 by unidentified armed camouflaged men, who had
driven several APCs. However, they denied that the abductors had been servicemen,
referring to the absence of conclusions from the ongoing investigation.
The Court notes that despite its requests for a
copy of the investigation file, the Government refused to produce most of the
documents from the case file, referring to Article 161 of the Code of Criminal
Procedure. The Court reiterates that in previous cases it has already found that
explanation insufficient to justify the withholding of key information
requested by it (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR
2006-XIII (extracts)).
Consequently, 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-founded nature of the applicants’
allegations.
Having regard to the applicants’ submissions
concerning the circumstances of the abduction of their relative, the Court
cannot but observe that they have remained consistent, detailed and coherent
before both the domestic authorities and this Court (see paragraphs 9-14, 16-18,
29, 52, 55 and 59 above). Furthermore, the applicants furnished several witness
statements in support of their allegations (see paragraph 7 above), which were
not only uncontested by the Government but appeared to be confirmed, albeit indirectly,
by the witness statements collected during the investigation carried out by the
domestic authorities (see paragraphs 53 and 56-58 above).
The Court further points out that the Government
did not dispute the applicants’ submission that, at the time of their relative’s
abduction, the town of Urus-Martan had been under curfew and that the
authorities had maintained manned checkpoints on the roads in and out of it.
It is also significant for the Court that one of
the witnesses, on whose statement the applicants relied, explicitly submitted
that her son had been apprehended and taken away at the same time, on the same
day and in the same manner, namely by armed camouflaged persons driving APCs
(see paragraph 14 above) and that a number of witnesses interviewed by the investigators
stated that six men had been abducted in Urus-Martan on the same day as the
applicants’ relative (see paragraphs 56 and 57 above). Those submissions, as
well as the reply to the first applicant by the military prosecutor’s office of
military unit no. 20102 of 15 August 2003 (see paragraph 41 above), appear to seriously
undermine the Government’s assertion that the law-enforcement authorities had
not carried out any special operations in Urus-Martan on the day the applicants’
relative was abducted.
In the Court’s view, the fact that a large group
of armed men in camouflage uniforms, driving in a convoy of several military
vehicles, including APCs, was able to pass freely through checkpoints during
curfew hours and proceeded to arrest the applicants’ relative and, as it
transpires, a number of other individuals, in a manner similar to that of State
agents, strongly supports the applicants’ allegation that the abductors were
State servicemen and that they were conducting a special operation in Urus-Martan
at the time of Vakhit Avkhadov’s abduction.
The Court notes that in their applications to
the authorities the applicants consistently maintained that their relative had
been detained by unknown servicemen and asked the investigating authorities to
look into that possibility. It further notes that after more than 11 years the
investigation has produced no tangible results.
The Court observes that where an 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, among many other
authorities, 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 applicants have made a prima facie case that their
relative was abducted by State agents. The Government’s argument that the
investigation had found no evidence that servicemen had been involved in the abduction
is insufficient to discharge them from the above-mentioned burden of proof.
Drawing inferences from the Government’s failure to submit the remaining
documents requested, which were in their exclusive possession, or to provide
another plausible explanation for the events in question, the Court finds that Vakhit
Avkhadov was arrested on 24 April 2001 by servicemen during an unacknowledged
security operation.
There has been no reliable news of Vakhit
Avkhadov since the date of the abduction. 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, cited above; 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; Alikhadzhiyeva
v. Russia, no. 68007/01, 5 July 2007; and Umayevy v. Russia,
no. 47354/07, 12 June 2012),
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 Vakhit Avkhadov or of any news of him for more than eleven years
supports that assumption.
Accordingly, the Court finds that the available evidence
permits it to establish that Vakhit Avkhadov 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 applicants’ relative must be presumed dead following his unacknowledged
detention by State servicemen. Noting that the authorities do not rely on any
justification in respect of the 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 its substantive aspect in respect of Vakhit
Avkhadov.
(b) Alleged inadequacy of the investigation
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 thorough, independent, accessible
to the victim’s family, carried out with reasonable promptness and expedition,
effective in the sense that it is capable of leading to a determination of
whether the force used in such cases was or was not justified in the
circumstances or otherwise unlawful, and afford a sufficient element of public
scrutiny of the investigation or its results (see Hugh Jordan v. the United
Kingdom, no. 24746/94, §§ 105-09, ECHR 2001-III (extracts); Douglas-Williams
v. the United Kingdom (dec.), no. 56413/00, 8 January 2002; Esmukhambetov
and Others v. Russia, no. 23445/03, §§ 115-18, 29 March 2011, and Umarova and Others v. Russia, no. 25654/08, §§ 84-88, 31 July
2012).
The Court notes at the outset that the
Government refused to produce most of the documents from case file no. 25350
and furnished only copies of several 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 which they provided to the Court.
Turning to the facts of the present case, the
Court observes that Vakhit Avkhadov was abducted on 24 April 2001 and that the
investigation into his abduction was opened on 16 August 2001 (see paragraph 28
above), namely three months and twenty-two days later. The applicants submitted
that on 24 April 2001 they had complained about their relative’s disappearance
to various authorities, both orally and in writing (see paragraph 19 above).
However, they did not provide copies of their complaints. The Government did
not contest that submission. It further follows from the materials submitted by
the applicants that on 7 and 25 May 2001 the first applicant complained
about the abduction of her son to the district court and the ombudsman (see
paragraphs 26 and 48 above). Whilst in her complaint to the district court she
explicitly stated that her earlier complaints to the authorities had yielded no
results and the copy of that complaint was furnished by the applicants, the
complaint to the ombudsman was furnished by the Government and apparently included
in the investigation file (see ibid.).
Against that background, the Court is unable to
attribute the responsibility for the delay in the opening of the investigation
to any of the parties in the period between 24 April and 25 May 2001.
Nonetheless, having regard to the available documents, it considers that as of
25 May 2001 at the latest the domestic authorities became aware of the crime
allegedly committed and it was for them to report the matter to the appropriate
prosecutor’s office via the official channels of communication that should
exist between various law-enforcement agencies (see Khalidova and Others v.
Russia, no. 22877/04, § 93, 2 October 2008, and Vakayeva and Others
v. Russia, no. 2220/05, §§141-42, 10 June 2010). Accordingly, it finds that
the delay of two months and twenty-two days in the opening of the investigation
is attributable to the domestic authorities (compare Gerasiyev and Others v.
Russia, no. 28566/07, § 96,
7 June 2011). In this connection, it stresses that such an important
postponement per se is liable to affect the investigation of an
abduction in life-threatening circumstances, where crucial action has to be
taken in the first days after the event.
As regards the scope of the investigative
measures taken, the Court considers it important to note the following.
First, it notes that between 6 and 18 August
2001 officers of the VOVD interviewed the first applicant and five residents of
Urus-Martan (see paragraphs 53-58 above). In this connection it takes
note of the applicants’ submission that the majority of the residents of Urus-Martan
interviewed by the investigators did not reside in the same street as the
applicants. Accordingly, it does not appear that the investigators took genuine
attempts to identify and interview possible eyewitnesses to the abduction of
Vakhit Avkhadov. The reason why the investigators omitted to interview members
of the applicants’ family, other than the first applicant, who had been present
at the time of the abduction of Vakhit Avkhadov, also remained unexplained. In
this connection, the Court also cannot but note that the first attempt to identify
possible witnesses to the abduction residing in the same street does not appear
to have been carried out until July 2006, namely more than five years after the
events (see paragraph 64 above). Even assuming that that was a genuine attempt
to identify possible eyewitnesses to the abduction, given the time that had lapsed
since the events in question, the Court doubts whether that investigative step
could have brought about any positive results.
It further follows from the materials submitted
by the Government that a number of investigative steps were taken with a
considerable delay. In particular, in so far as the Government referred to
numerous requests for information on Vakhit Avkhadov’s possible whereabouts
and/or arrest and detention, it transpires from the documents made available by
the respondent party that those requests were mainly made in June and July
2006, that is more than five years after the abduction (see paragraphs 63-65
above).
Those delays, for which there has been no explanation
in the instant case, 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).
Furthermore, it appears that a number of
investigative steps have not been taken at all. In particular, the Court observes
that, during more than eleven years in which the investigation has been
pending, the investigators made no attempt to verify information concerning the
use of military vehicles by the abductors and their possible itinerary, despite
the fact that the first applicant, when interviewed, provided the relevant
information. Moreover, there is no indication that the investigators took any
steps to verify the applicants’ allegation that their relative had been taken to
the premises of the Western Zone Alignment. Having regard to the witness
statements obtained by the investigators in August 2001 and, in particular, to
the fact that many of them submitted that the abduction of Vakhit Avkhadov
had not been an isolated incident but that several other men had been abducted
in the same manner and at the same time from Urus-Martan (see paragraphs 52-59
above), the Court notes that the investigators made no attempt to take such
basic steps as identifying the servicemen who participated in the operation,
establishing their chain of command, and obtaining information from the
checkpoints about the possible passage through them of the convoy of military
vehicles.
It is further pointed out that the Government
failed to explain why the first applicant was twice granted victim status.
However, bearing that fact in mind and having regard to the documents submitted
by them and the first applicant’s request to be granted victim status made in
2002, it transpires, at the very least, that she was not aware of the decision
to grant her victim status issued in 2001 (see paragraphs 33 and 54 above). Furthermore,
in view of the applicants’ repeated requests for access to the case file and to
be provided with information on the progress of the investigation (see
paragraphs 42, 43 and 46 above), the Court seriously doubts that they were
informed of important developments in the investigation. 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 (see Oğur v. Turkey [GC], no. 21594/93, § 92,
ECHR 1999-III).
Lastly, it follows from the information
submitted by the Government that the investigation was repeatedly suspended and
resumed (see paragraphs 66-71 above). The Court emphasises in this respect that
while the adjourning or reopening of proceedings is not in itself a sign that
the proceedings are ineffective, it appears in the present case that the
decisions to adjourn were made without the necessary investigative steps being
taken, which led to numerous periods of inactivity and thus unnecessary
protraction. Moreover, owing to the time that had elapsed since the events
complained of, certain investigative measures that ought to have been carried
out much earlier could no longer usefully be conducted.
Having regard to the part of the Government’s
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, has been ongoing 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 rejects
their objection in this part.
In so far as the Government argued that it had
been open to the applicants to challenge the investigating authorities’ acts or
omissions before the courts or before the investigators themselves, the Court
observes that, as has already been pointed out, the effectiveness of the
investigation had already been undermined in its early stages by the
authorities’ failure to take necessary and urgent investigative measures. The
investigation was repeatedly suspended and resumed, but it appears that no
significant investigative measures were taken to identify those responsible for
the abduction. In such circumstances, the Court considers that the applicants
could not be required to challenge in court every single decision of the
district prosecutor’s office. Moreover, as it has established above, the
applicants received only fragmentary and incomplete information about the
course of the investigation and the investigative measures taken. Against that background,
the Court finds that the remedy cited by the Government was ineffective in the
circumstances and dismisses their preliminary objection as regards the
applicants’ failure to exhaust domestic remedies within the context of the
criminal investigation.
In the light of the foregoing, the Court holds
that the authorities failed to carry out an effective criminal investigation
into the circumstances surrounding the disappearance of Vakhit Avkhadov, in
breach of Article 2 in its procedural aspect.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants relied on Article 3 of the
Convention, submitting that, as a result of their relative’s disappearance and
the State’s failure to investigate it properly, they had endured psychological
distress in breach of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Submissions by the parties
The Government argued that there had been no
breach of the applicants’ rights under Article 3 because all their complaints
had been examined in accordance with the applicable legislation.
The applicants maintained the 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 (a) 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
first applicant is the mother of the disappeared person and that the second to
fifth applicants are his sisters. The first applicant witnessed her son’s
abduction. The applicants have not had any news of their relative for more than
eleven years. During this period they have made enquiries of various official
bodies, both in writing and in person, about their missing relative. Despite
their attempts, the applicants have never received any plausible explanation or
information about what became of Vakhit Avkhadov following his detention. Most
of the responses they received denied State responsibility for his arrest or
simply informed them that the investigation was ongoing. The Court’s findings
under the procedural aspect of Article 2 are also of direct relevance.
The Court therefore concludes that there has
been a violation of Article 3 of the Convention in respect of the
applicants.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE
CONVENTION
The applicants further stated that Vakhit
Avkhadov 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. Submissions by the parties
The Government asserted that no evidence had
been obtained by the investigators to confirm that Vakhit Avkhadov had been
deprived of his liberty by State agents. He had not been listed among the names
of people kept in detention centres and none of the regional law-enforcement
agencies had information about his detention.
The applicants 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 (a) 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 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; Luluyev, cited above, § 122,
and El Masri v. “the former Yugoslav Republic of Macedonia” [GC],
no. 39630/09, § 233, 13 December 2012).
The Court has found that Vakhit Avkhadov was
abducted by State servicemen on 24 April 2001 and has not been seen since. His
detention was not acknowledged, was not logged in any custody records and no
official trace of his subsequent whereabouts or fate exists. In accordance with
the Court’s practice, this fact in itself must be considered a most serious
failing, because 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 applicants’ complaints that their 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
Vakhit Avkhadov 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 applicants complained that they had been
deprived of effective remedies in respect of the aforementioned violations of
Articles 2, 3 and 5, 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. Submissions by the parties
The Government contended that the applicants
had had effective remedies at their disposal, as required by Article 13 of the
Convention, and that the authorities had not prevented them from using those
remedies.
The applicants maintained 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 (a) 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 in the instant case, a criminal investigation into a 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 Articles 2 and 3 of the Convention.
As regards the applicants’ reference to Article
5 of the Convention, the Court considers that, in the circumstances, no
separate issue arises in respect of Article 13, read in conjunction with
Article 5 of the Convention (see Aziyevy v. Russia, no. 77626/01, § 118,
20 March 2008, and Alikhadzhiyeva, cited above, § 96).
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 applicants made no claim in respect of
pecuniary damage. As regards non-pecuniary damage, they submitted that, as a
result of the alleged violations of Articles 2, 3, 5 and 13 of the Convention,
they had endured mental and emotional suffering which could not be compensated
for solely by a finding of a violation of those Convention provisions. They
asked the Court to award them non-pecuniary damages, leaving the amount to the
Court’s discretion.
The Government submitted that, should the Court
find a violation of any of the Convention provisions, a finding of such a
violation would constitute a 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 applicants’ son and brother. The applicants themselves
have been found to have been victims of a violation of Article 3 of the
Convention on account of their mental suffering endured as a result of the disappearance
of their relative and the authorities’ attitude to that fact. The Court thus
accepts that they have suffered non-pecuniary damage which cannot be
compensated for solely by the findings of violations. It finds it appropriate
to award the first applicant 45,000 euros (EUR) and the second to fifth
applicants EUR 15,000 jointly under this heading, plus any tax that may
chargeable to them.
B. Costs and expenses
The applicants were represented by lawyers from
the NGO European Human Rights Advocacy Centre/Memorial. The aggregate claim in
respect of costs and expenses related to the applicants’ legal representation
amounted to 1,911.05 pounds sterling (GBP), to be paid into the representatives’
account in the United Kingdom. The amount claimed was broken down as follows:
(a) GBP 700 for six hours of legal drafting of
documents submitted to the Court at a rate of GBP 100 and 150 per hour;
(b) GBP 1,036.05 for translation costs, and
(c) GBP 175 for administrative and postal costs.
The Government pointed out that the applicants
should be entitled to the reimbursement of their 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).
The Court now has to establish whether the
costs and expenses indicated by the applicants’ relative were actually incurred
and whether they were necessary (see McCann and Others, cited above, §
220).
Having regard to the details of the information
and the timesheets submitted by the applicants, the Court is satisfied that those
rates are reasonable and reflect the expenses actually incurred by the
applicant’s representatives. Accordingly, it considers it appropriate to award
the applicants’ representatives the amount claimed, that is GBP 1,911.05, in
respect of costs and expenses, plus any tax that may be chargeable to the applicants,
the award to be paid into the representatives’ bank account in the United Kingdom, as identified by the applicants.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join to the merits the
Government’s objection as to non-exhaustion of criminal domestic remedies
and rejects it;
2. Declares the
application admissible;
3. Holds that there has been a substantive
violation of Article 2 of the Convention in respect of Vakhit Avkhadov;
4. 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 Vakhit Avkhadov
disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants on account of
their mental suffering;
6. Holds that there has been a violation of
Article 5 of the Convention in respect of Vakhit Avkhadov;
7. Holds that there
has been a violation of Article 13 of the Convention in respect of the
alleged violation of Articles 2 and 3 of the Convention;
8. Holds no separate issue arises under
Article 13 of the Convention in respect of the alleged violation of Article 5
of the Convention;
9. Holds
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Russian roubles at the rate applicable at the date of
settlement, save in the case of the payment in respect of costs and expenses:
(i) EUR 45,000 (forty-five thousand euros) to the
first applicant and EUR 15,000 (fifteen thousand euros) to the second to fifth
applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) GBP 1,911.05 (one thousand nine hundred and eleven
pounds and five pence), plus any tax that may be chargeable to the applicants,
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.
Done in English, and notified in writing on 14 March 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
