SAGAYEVA AND OTHERS v. RUSSIA - 22698/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2015] ECHR 1072 (08 December 2015)

In the case of Sagayeva and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 November 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 22698/09 and 31189/11) 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 the Russian nationals listed below (“the applicants”), on 17 April 2009 and 12 May 2011 respectively.

2. The applicants were represented by lawyers from the Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with a representative office in Russia (in partnership with the NGO Astreya). The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicants alleged that their relatives had been abducted by State agents in Chechnya and that no effective investigation had been carried out into the matter.

4. On 3 November 2011 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Application no. 22698/09, Sagayeva v. Russia

5. The applicant, Ms Khava Sagayeva, was born in 1964 and lives in Urus-Martan in the Urus-Martan district, the Chechen Republic.

6. The applicant is the sister of Mr Khasan Sagayev, who was born in 1973.

1. Abduction of Mr Khasan Sagayev and subsequent events

7. At the material time the applicant lived in Alkhan-Yurt (in the documents submitted it is also referred to as Alkhan-Kala), in the Urus-Martan district in Chechnya. In August 2000 Mr Khasan Sagayev, along with a number of other relatives, was living in the applicant’s house while she was away in Ingushetia.

8. At around 12 p.m. on 8 August 2000 a group of about twenty to thirty masked and armed servicemen in camouflage uniforms arrived at the applicant’s house in two armoured personnel carriers (APCs) and several UAZ minivans. They broke into the house and quickly searched the premises, taking away all documents and family photographs. They forced Mr Khasan Sagayev into the APC with registration number 802 and drove away to an unknown destination.

9. Later on the same day, 8 August 2000, at the request of the applicant’s relatives, Mr Supyan Mokhchayev, the Mayor of Grozny, contacted a military commander, who informed him that APC no. 802 belonged to a military regiment stationed at the Main Federal Military Base in Khankala. Mr Mokhchayev also learnt from anonymous witnesses that Mr Khasan Sagayev had been taken to the military base in Khankala and questioned by three investigators.

10. The applicant has not seen Mr Khasan Sagayev since his abduction on 8 August 2000.

11. The applicant did not witness the abduction. Her account before the Court was based on statements provided by her relatives and neighbours.

12. The Government did not contest the facts as presented by the applicant, but pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident.

2. Main steps taken by the official investigation into the abduction

13. From the documents submitted it can be seen that the applicant lodged an official complaint concerning her brother’s abduction on 14 December 2000.

14. On 14 April 2001 the Urus-Martan district prosecutor’s office opened criminal case no. 25040 (in the documents submitted, the case is also referred to as no. 78012).

15. On 20 June 2001 the investigation was suspended. The applicant was not informed of this development.

16. The investigation remained suspended from 20 June 2001 to 19 January 2009. From the documents submitted it is apparent that the applicant did not contact the authorities at any time during this period. The applicant has stated that between 2001 and 2008 she was ill and her sister, Ms Kh.S., maintained correspondence with the authorities, both personally and through the International Committee of the Red Cross and the human rights organisations Memorial and Materi Chechni (Mothers of Chechnya). The Government did not dispute this part of the applicant’s submission.

17. On 20 November 2008 the applicant asked to be granted victim status in the criminal case.

18. On 19 January 2009, in response to a request from the applicant, the investigation was resumed.

19. On the same date, 19 January 2009, the investigators granted the applicant victim status in the criminal proceedings and questioned her. She stated that she had not witnessed the abduction herself but had learnt of it from her relatives.

20. On 21 January 2009 the applicant requested permission to access the entire contents of the investigation file. The investigators rejected her request on 2 February 2009.

21. On 22 January 2009 the investigators questioned the applicant’s sister, Ms A.S., who stated that she had not witnessed the abduction either but had learnt of it from her relatives.

22. On 22 January 2009 the investigators questioned another of the applicant’s sisters, Ms Kh.S., who described the circumstances of the abduction. Her statement was similar to the applicant’s account before the Court.

23. On 19 February 2009 the criminal proceedings were suspended. The applicant was informed thereof.

24. On 23 March 2009 the investigation was resumed and the applicant was informed thereof.

25. Between 25 and 29 March 2009 the investigators questioned three of the applicant’s fellow villagers, whose statements did not provide any new information as they had not witnessed the abduction.

26. On 1 April 2009 the investigators examined the crime scene. No evidence was collected.

27. On 9 April 2009 the investigators questioned a local police officer, Mr A. A., who stated that the police had been unable to establish the whereabouts of the applicant’s missing brother.

28. On 10 June 2010 the applicant asked the investigators to update her on the progress of the investigation and on 25 August 2010 she was informed that the proceedings remained suspended.

29. The investigation into the abduction was subsequently repeatedly suspended and resumed; the last suspension took place on 6 October 2011. The proceedings are still pending.

B. Application no. 31189/11, Mukayevy v. Russia

30. The applicants, Ms Roza Mukayeva, who was born in 1959, and Mr Khamzat Mukayev, who was born in 1956, live in the village of Duba-Yurt in the Shali district, the Chechen Republic.

31. The applicants are the parents of Mr Rasul Mukayev, who was born in 1979.

1. Abduction of Mr Rasul Mukayev

32. At the material time Mr Rasul Mukayev was suffering from a second-degree disability. The applicants claimed in their submission that he had been detained during “sweeping-up” operations carried out in Duba-Yurt in 2001, 2002 and 2003 and released.

33. In 2004 the village was surrounded by numerous checkpoints. Two checkpoints were located in the vicinity of the applicants’ house in Duba-Yurt.

34. On 3 December 2004 at around 5 a.m. an APC arrived at the applicants’ house. Another APC and two UAZ minivans were waiting in a neighbouring street. A group of eight to ten armed servicemen in masks and camouflage uniforms broke into the house. Threatening the applicants in unaccented Russian, they searched the house, handcuffed Mr Rasul Mukayev, pulled his T-shirt over his head and forced him outside, where one of them reported to someone via portable radio: “The object is taken. We are leaving”. The servicemen told the applicants that they were taking Mr Rasul Mukayev to the Shali district department of the interior (the ROVD).

35. The applicants subsequently learnt from anonymous witnesses that their son had allegedly been taken to the Main Federal Military Base in Khankala.

36. The applicants have not seen Mr Rasul Mukayev since 3 December 2004.

37. The Government did not contest the facts as presented by the applicants, but pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident.

2. Main steps taken by the official investigation into the abduction

38. On 3 December 2004 an investigation team examined the crime scene.

39. On 3 December 2004 the investigators questioned the first applicant, whose statement was similar to the applicants’ account before the Court.

40. On 3 December 2004 the investigators questioned the applicants’ relative, Mr R.Kh., and their neighbour, Mr S.N., whose statements concerning the abduction were similar to the applicants’ account before the Court.

41. On 23 December 2004 the Shali district prosecutor’s office opened criminal case no. 36148.

42. On 23 February 2005 the investigation was suspended. The applicants were not informed of this development.

43. On 27 May 2005 the investigation was resumed following criticism from the supervising prosecutor, who gave orders for the basic steps to be undertaken.

44. On 2 July 2005 the investigation granted the second applicant victim status in the criminal case.

45. On 2 July 2005 the investigators questioned the second applicant, whose statement concerning the abduction was similar to the applicants’ account before the Court. In addition, he stated that he had followed the abductors and had seen them driving in the direction of the federal forces’ main military base in Khankala.

46. On 7 July 2005 the investigation was again suspended and the applicants again not informed.

47. On 21 September 2010 the first applicant asked the investigators to grant him permission to access the entire contents of the investigation file. On 12 November 2010 the investigators partially granted the request by providing twelve documents from the file.

48. On 20 December 2011 the investigation was resumed following a corresponding request from the applicants. The proceedings are still pending.

II. RELEVANT DOMESTIC LAW

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

THE LAW

50. The Court will deal with the procedural matters in the case before considering the applicants’ complaints concerning the abduction of their relatives and the allegedly ineffective investigation.

I. JOINDER OF THE APPLICATIONS

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

II. COMPLIANCE WITH THE SIX-MONTH RULE

A. The parties’ submissions

1. Government

51. In respect of Sagayeva (no. 22698/09), the Government submitted in their initial observations on the admissibility and merits that the applicant had complied with the six-month time-limit. However, in their additional observations, they stated that she had failed to demonstrate “the requisite amount of diligence and initiative” in contacting the authorities to justify the belated lodging of her application with the Court.

52. In respect of Mukayevy (no. 31189/11) the Government submitted that, in the absence of a final domestic decision, the six-month time-limit did not apply in that case.

2. The applicants

53. The applicants in both applications submitted that they had taken all possible steps within reasonable time-limits to initiate the search for their missing relatives and to assist the authorities in the proceedings. They submitted that there had been no excessive or unexplained delays in submitting their applications to the Court and that they had lodged their complaints as soon as they had become convinced of ineffectiveness of the investigations into the abduction of their relatives.

54. The applicants in both cases further contended that they had been unaware of the possibility of bringing an application to Strasbourg until the Court delivered its first judgments concerning disappearances in the Chechen Republic (the first one was delivered in July 2006 in the case of Bazorkina v. Russia, no. 69481/01, 27 July 2006), which allowed them to gauge the success of such an application. In addition, owing to their lack of legal knowledge and sufficient funds to hire a lawyer, they had been unable to assess the effectiveness of the pending criminal proceedings. Furthermore, due to the climate of fear which reigned in Chechnya at the material time, they had been afraid to complain to Strasbourg and had done so only after the Government announced the end of the counter-terrorist operation in April 2009.

55. Referring to Varnava and Others v. Turkey [GC] (nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECHR 2009), the applicants argued that the six-month rule did not apply to ongoing situations of enforced disappearance and that in any event they had introduced their applications within nine years of the abduction in Sagayeva (no. 22698/09) and within seven years in Mukayevy (no. 31189/11), each of which appeared to be a reasonable time-frame in the circumstances. They stated that they had maintained contact with the authorities and that there had been no significant lapses of time or delays or lulls in the investigation which might have had an impact on the application of the six-month time-limit.

B. The Court’s assessment

1. General principles

56. Although the respondent Government did not raise any objection under this head concerning the Mukayevy application (no. 31189/11), this issue calls for the Court’s consideration proprio motu (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011).

57. A summary of the principles concerning compliance with the six-month rule in disappearance cases may be found in Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 369-74, 9 October 2014).

2. Application of the principles to the present case

58. Turning to the circumstances of the instant applications, the Court notes that the investigations were pending when the applicants lodged their applications with the Court and are still pending. The Court notes that the applicants complained to the authorities after the abductions and lodged their applications with the Court within a period of less then ten years after the incidents and the initiation of the investigations (see Varnava and Others, cited above, § 166).

59. The Court observes the siginificant lulls in the criminal proceedings comprising almost six and a half years in Mukayevy (no. 31189/11) (see paragraphs 46 and 48 above) and more than seven and a half years in Sagayeva (no. 22698/09) (see paragraph 16 above). It further observes that the applicants were not informed of the suspension decisions preceding the lulls in the investigations and that the proceedings were resumed in response to the applicants’ or their relatives’ requests to this effect (see paragraphs 16, 18 and 48 above).

60. The Court notes that such long periods of inactivity on the part of the authorities could have cast doubt on the effectiveness of the pending investigation and could have compelled the applicants to lodge their applications with the Court at an earlier date. However, the Court notes the authorities’ failure to provide the applicants with information concerning the investigation (see paragraph 20 above), including the decisions to suspend it (see paragraphs 15, 42, 46 and 47 above).

61. From the documents submitted it is apparent that the applicants did all that could be expected of them to assist the authorities with the investigation into their relatives’ disappearance. The Court further notes that the authorities resumed the investigations upon the applicants’ requests (see paragraphs 18 and 48 above). Taking into account the applicants’ explanations concerning their compliance with the six-month rule and their efforts to revive the dormant proceedings (see paragraphs 16, 17, 18 and 47 above), and having regard to the complexity of the cases and the nature of the alleged human rights violations at stake, the Court concludes that it was reasonable for the applicants to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). Therefore, the Court considers that the lulls occurring in the domestic investigations cannot be held against the applicants and interpreted as a failure to comply with the six-month requirement by unreasonably waiting for the pending investigation to yield results.

62. The Court thus finds that an investigation, albeit a sporadic one, was being conducted during the period in question and that the applicants explained the delay in their applications to the Court by the way in which the domestic proceedings developed (see Varnava and Others, cited above, § 166). In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.

III. COMPLIANCE WITH THE EXHAUSTION RULE

A. The parties’ submissions

1. Government

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

2. The applicants

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

B. The Court’s assessment

65. As regards a civil action to obtain redress for damage sustained as a result of the alleged illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005). Accordingly, the Court confirms that the applicants were not obliged to pursue civil remedies. The objection in this regard is therefore dismissed.

66. As regards criminal-law remedies, the Court observes that in a recent judgment it concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constituted a systemic problem and that criminal investigations were not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217).

67. In such circumstances, and noting the absence over the years of any tangible progress in the criminal investigations into the abduction of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government was not effective in the circumstances.

IV. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A. The parties’ submissions

1. The Government

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

2. The applicants

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

B. The Court’s assessment

1. General principles

70. A summary of the principles concerning the assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others, cited above §§ 393-96).

2. Application of the principles to the present case

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

71. The witness statements collected by the applicant and the documents from the investigation file furnished by the Government confirm that her brother, Mr Khasan Sagayev, was abducted in Alkhan-Yurt on 8 August 2000 by a group of servicemen during a special operation (see, for example, paragraphs 8-9, 19, 22 and 27 above). In the light of all the material in its possession, the Court finds that the applicant has presented a prima facie case that her relative was abducted by State agents in the circumstances set out by her.

72. The Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.

73. Bearing in mind the general principles set out above, the Court finds that Mr Khasan Sagayev was taken into custody by State agents on 8 August 2000. In view of the absence of any news of him since that date and the life-threatening nature of such detention, the Court also finds that Mr Khasan Sagayev may be presumed dead following his unacknowledged detention.

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

74. The witness statements collected by the applicants and the documents from the investigation file furnished by the Government, confirm that their son, Mr Rasul Mukayev, was abducted from home in Duba-Yurt on 3 December 2004 by a group of servicemen during a special operation (see, for example, paragraphs 34, 39, 40 and 45 above). In the light of all the material in its possession, the Court finds that the applicants have presented a prima facie case that their son was abducted by State agents in the circumstances set out by them.

75. The Government did not provide a satisfactory and convincing explanation for the events in question. They had therefore failed to discharge their burden of proof.

76. Bearing in mind the general principles set out above, the Court finds that Mr Rasul Mukayev was taken into custody by State agents on 3 December 2004. In view of the absence of any news of him since that date and the life-threatening nature of such detention, the Court also finds that Mr Rasul Mukayev may be presumed dead following his unacknowledged detention.

V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

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

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

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;

A. The parties’ submissions

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

79. The applicants maintained their complaints.

B. The Court’s assessment

1. Admissibility

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

2. Merits

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

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

(b) Alleged inadequacy of the investigations into the abductions

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

83. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Khasan Sagayev and Mr Rasul Mukayev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.

VI. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

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

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

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.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

85. The Government contested the applicants’ claims.

86. The applicants reiterated their complaints.

B. The Court’s assessment

1. Admissibility

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

2. Merits

88. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006-XIII (extracts)).

89. Equally, the Court has found on many occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others v. Russia, no. 69480/01, § 122, ECHR 2006-XIII (extracts)).

90. The Court reiterates its findings regarding the State’s responsibility for the abductions and the failure to carry out a meaningful investigation into the fates of the disappeared persons. It finds that the applicants, who are close relatives of the disappeared, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish which they suffered, and continue to suffer, as a result of their inability to ascertain the fate of their family members and of the manner in which their complaints have been dealt with.

91. The Court also confirms that it has been established that the applicants’ relatives were detained by State agents ‒ apparently without any legal grounds for or acknowledgement of such detention ‒ and this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

92. The Court reiterates its findings of the general ineffectiveness of the criminal investigations in cases such as those under examination. In the absence of results ensuing from a criminal investigation, any other possible remedy becomes inaccessible in practice.

93. The Court thus finds that the applicants in these cases did not have at their disposal an effective domestic remedy for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

94. 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

1. Application no. 22698/09, Sagayeva v. Russia

95. The applicant, as a sister of Mr Khasan Sagayev, claimed 889,431 Russian roubles (RUB) (about 15,500 euros (EUR)) in respect of pecuniary damage for the loss of financial support from a family breadwinner. She based her calculations on the subsistence level provided for by the domestic law and the Ogden Actuary Tables.

96. The applicant claimed EUR 100,000 in respect of non-pecuniary damage.

97. The Government submitted that the applicant’s claim for pecuniary damage was unsubstantiated and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a family breadwinner. As regards the claim in respect of non-pecuniary damage, the Government stated that the amount of compensation should be determined on an equitable basis.

2. Application no. 31189/11, Mukayevy v. Russia

98. Each of the applicants, as the parents of Mr Rasul Mukayev, claimed RUB 863,857 (about EUR 15,000) in respect of pecuniary damage for the loss of financial support from a family breadwinner. The applicants based their calculations on the subsistence level provided for by the domestic law and the Ogden Actuary Tables.

99. The applicants claimed EUR 100,000 jointly in respect of non-pecuniary damage.

100. The Government submitted that the applicants’ claim for pecuniary damage was unsubstantiated and that there was a domestic mechanism for compensation in respect of pecuniary damage resulting from the loss of a family breadwinner. As regards the claim in respect of non-pecuniary damage, the Government stated that the amount of compensation should be determined on an equitable basis.

B. Costs and expenses

101. The applicants in both cases were represented by the Stichting Russian Justice Initiative (SRJI)/Astreya. The aggregated claims in respect of costs and expenses relating to the applicants’ legal representation amounted to EUR 4,144 in Sagayeva (no. 22698/09) and EUR 4,204 in Mukayevy (no. 31189/11). The claims included the drafting of legal documents submitted to the Court, and administrative and postal expenses. The applicants submitted copies of their legal representation contracts and invoices, including a breakdown of the costs incurred.

102. In respect of both claims the Government submitted that the amounts claimed were excessive, as the time and effort spent on the preparation of the applicants’ submissions did not correspond to the amounts claimed, and invited the Court to reduce them “proportionally”.

C. The Court’s assessment

103. The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation in respect of loss of earnings. The Court further finds that the loss of earnings applies to close relatives of disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).

104. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and make a financial award.

105. As to costs and expenses, the Court must first establish whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

106. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the amount of EUR 60,000 in respect of non-pecuniary damage to the applicant in Sagayeva (no. 22698/09) and the amount of EUR 10,000 in respect of pecuniary damage to each of the applicants and EUR 60,000 in respect of non-pecuniary damage to the applicants jointly in Mukayevy (no. 31189/11), plus any tax that may be chargeable to the applicants on those amounts.

107. As for the costs and expenses, based on the parties’ submissions and the principles referred to above, the Court awards EUR 4,144 to the applicant in Sagayeva (no. 22698/09) and EUR 4,204 to the applicants in Mukayevy (no. 31189/11). The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as identified by the applicants.

D. Default interest

108. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Khasan Sagayev and Mr Rasul Mukayev;

4. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance of the applicants’ relatives;

5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering;

6. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention;

7. Holds there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;

8. Holds

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

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

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

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

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

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

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

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

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

Stephen Phillips Luis López Guerra
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SAGAYEVA AND OTHERS v. RUSSIA - 22698/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2015] ECHR 1072 (08 December 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/1072.html Cite as: [2015] ECHR 1072