SALIKHOVA AND MAGOMEDOVA v. RUSSIA - 63689/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 116 (26 January 2016)

In the case of Salikhova and Magomedova v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          George Nicolaou,
          Helen Keller,

          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 5 January 2016,

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

PROCEDURE

1. The case originated in an application (no. 63689/13) 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 two Russian nationals, Ms Ruzmay Salikhova and Ms Rapiyat Magomedova (“the applicants”), on 26 September 2013.

2. The applicants were represented by Mr Dokka Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged that their relative had been abducted by State agents in Dagestan, Russia, and had subsequently disappeared and that the authorities had failed to effectively investigate the matter.

4. On 6 January 2014 the application was communicated to the Government. It was also decided to rule on its admissibility and merits at the same time (Article 29 § 1 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1962 and 1994 respectively and live in Makhachkala, Republic of Dagestan, Russia

. They are the mother and the wife of Mr Sakhrab Abakargadzhiyev, who was born in 1990.

A. Abduction of Mr Sakhrab Abakargadzhiyev

Abduction of Mr Sakhrab Abakargadzhiyev and subsequent developments

(a) The applicants’ submission

6. At the material time Mr Sakhrab Abakargadzhiyev and the applicants, along with other relatives, lived together at 115A Magomed Dalgata Street, Makhachkala, Dagestan. According to the applicants for about eighteen months prior to the events in question Mr Sakhrab Abakargadzhiyev had been suspected of illegal activities and had been followed by Dagestani law enforcement agencies, in particular by the Centre against Extremism of the Dagestan Ministry of the Interior (“the CPE”) (Центр по Борьбе с Экстремизмом МВД по Республике Дагестан (ЦПЭ)).

7. At about 6 p.m. on 20 May 2013 Mr Sakhrab Abakargadzhiyev drove in his white GAZ Volga-3110 car along Engelsa Street to visit his relatives, who lived about a ten-minute drive from his house in Makhachkala. At about 6.45 p.m. his car was stopped and he was abducted by a group of eight armed men who were driving two civilian vehicles: a silver-coloured VAZ-21014, which had a registration number which partially read “A067”, and a black VAZ-21099. The men were dressed in civilian clothing and were masked. The applicants’ relative, Mr Ub.Ub., called Mr Sakhrab Abakargadzhiyev during the abduction and upon hearing him screaming immediately informed the applicants that there was a problem. Directly after that Mr Ub.Ub., together with the first applicant, went along Mr Sakhrab Abakargadzhiyev’s route and found his car in the street with two police vehicles and officers from the Sovetskiy district police station in Makhachkala (“the Sovetskiy ROVD”) (Советский районный отдел внутренних дел (РОВД)) next to it. The police told the first applicant and Mr Ub.Ub. that they had arrived a couple of minutes ago and that a few minutes prior to their arrival a man had been abducted. They told the applicant and Mr Ub.Ub. to wait at home for a telephone call from the police and took Mr Sakhrab Abakargadzhiyev’s car to the premises of the Sovetskiy ROVD.

8. Approximately twenty days after the abduction, that is to say between 9 and 12 June 2013, police officers from the CPE searched the applicants’ house.

9. About a month after the events, on or around 20 June 2013, the applicants obtained video footage of the abduction from a local resident (see paragraph 23 below). They recognised one of the abductors by his voice as the CPE officer named “Shakir” and informed the authorities of this.

10. On 1 July 2013 a burnt male corpse was found five kilometres from Gurbuki village in the Karabudakhkenstrkiy district in Dagestan.

11. On 23 December 2013 the body was identified by the authorities as that of Mr Sakhrab Abakargadzhiyev (see paragraph 53 below). The applicants and their relatives disagreed with that conclusion (see paragraphs 54-55 below).

12. According to the applicants, they have had no news of Mr Sakhrab Abakargadzhiyev since his abduction.

(b) The Government’s submission

13. The Government did not dispute the facts as presented by the applicants, but denied any involvement of State agents in the incident.

B. Official investigation into the abduction

14. In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided ninety-eight copied pages of documents from it reflecting steps taken by the authorities between 14 June and 26 October 2013.

15. In reply to the Court’s further request for a copy of the contents of the investigation file, the Government submitted 372 copied pages of the relevant documents, some of which were illegible. The contents of the legible documents can be summarised as follows.

16. Immediately after the incident the applicants went to the Sovetskiy ROVD, informed the police of the abduction and gave statements to the police investigator. They also conducted their own search for eye witnesses to the incident and found several of them in nearby shops and blocks of flats. The applicants informed the investigators of their findings (see, for example, paragraph 23 below).

17. On 20 May and then on 24 May 2013 the applicants complained of the abduction to the Sovetskiy district investigations department (“the investigations department”). In their second complaint they stated that, in their opinion, the police were wilfully postponing steps in the investigation of the incident.

18. On 3 June 2013 the investigators examined the crime scene. No evidence was collected.

19. On 6 June 2013 the investigators examined the car from which Mr Sakhrab Abakargadzhiyev had been abducted; two fingerprints were collected from the chassis of the vehicle. On the same date a forensic examination of the fingerprints was ordered.

20. On 14 June 2013 the investigations department opened criminal case no. 302564 into the abduction. The applicants were informed thereof.

21. On 18 June 2013 the investigators granted Mr Sakhrab Abakargadzhiyev’s father, Mr A.A., victim status in the criminal case and questioned him. His statement was similar to the applicants’ account submitted to the Court. The witness stated, amongst other things, that he had not witnessed the abduction and had learnt of it from his relatives. According to the witness, his son had no unpaid debts or personal enemies and had the mobile telephone number 8-903-481-61-47.

22. On 18 June 2013 the investigators questioned Mr Ub.Ub. whose statement concerning the incident was similar to the applicants’ account before the Court.

23. According to the applicants, shortly after their initial complaint to the authorities they identified witnesses to the incident and informed the investigators accordingly. As a result, on 21 June 2013 the investigators questioned Mr Ma.Ma. who stated that at about 6.45 p.m. on 20 May 2013 he had been smoking on his balcony at 3 Engelsa Street when he had heard men arguing. He had looked out and seen a group of six or seven masked men with pistols in their hands. Four of those men had been trying to pull the driver out of a white GAZ Volga-3110 car but the latter had been resisting. Then the men had started beating him and had somehow managed to pull him from his seat into the back seat of the car. Three of them had got inside the vehicle. In about two or three minutes the masked men had carried the immobilised driver out of the car and put him in a silver-coloured VAZ-2114. Then all of the masked men had driven off in that car and a black VAZ-21099 car. Immediately afterwards the witness had gone outside and asked a passerby to call the police. In about five minutes the police had arrived at the scene. According to the witness, he had recorded the abduction on his mobile telephone camera and then copied it to a CD.

24. On the same date, 21 June 2013, the investigators seized the abduction footage made by Mr Ma.Ma. On 25 June 2013 they examined the video, the contents of which were similar to the applicants’ account of the abduction submitted to the Court.

25. On 25 June 2013 the investigators questioned the second applicant’s mother, Ms G.G., whose statement concerning the abduction was similar to the applicants’ account before the Court. She had not witnessed the incident and had learnt of it from her relatives.

26. On the same date, 25 June 2013, the investigators questioned the first applicant, whose statement was similar to the applicants’ submission before the Court. In addition the investigators obtained samples of the first applicant’s saliva for DNA testing and for its database.

27. On 20 August 2013 the investigators ordered a comparison of the first applicant’s DNA samples with those from the DNA database.

28. On 30 August 2013 the investigators again questioned the first applicant who stated that in June and July 2013 she had received text messages on her telephone from two unknown numbers. The first message contained the following:

“Congratulations, your son became a shahid on the path of jihad in the Karabudakhkenstrkiy district ... May Allah accept his shahada and take him to the gardens of Firdous. Allahu Akbar!”

The second message contained the following:

“...Your son and son-in-law were set up by your neighbour Makhmud who worked for the 7th department [of the police]. If you don’t believe it, have your men follow him. I could not do nothing about it as I have got nobody who could help me eliminate him. This beast spares no one. I hope you will believe me as I have got no other way out. My brother was the only tower of strength in my life. Friend.”

29. On the same date, 30 August 2013, the investigators seized the first applicant’s mobile telephone to examine the above messages. It was established that the first message had been received on 15 June 2013 from a mobile telephone located that day in Popovicha Street in Makhachkala; the second message - received on 20 July 2013 - came from a different telephone number.

30. On 5 September 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain from the relevant mobile phone operator the call logs of Mr Sakhrab Abakargadzhiyev’s telephone number (8-903-481-61-47) between 20 April and 1 September 2013.

31. On 9 September 2013 the investigators received the court’s permission and examined the call logs of Mr Sakhrab Abakargadzhiyev’s telephone calls. According to the logs, at about 6.35 p.m. on 20 May 2013 he had received a telephone call from Mr Ub.Ub and after that the handset had been switched off. On 16 August 2013 a five-second call had been received on Mr Sakhrab Abakargadzhiyev’s number; the caller had been located in the area of Dachi in Makhachkala.

32. On 9 September 2013 the investigators again questioned the first applicant who stated that on the morning of 5 September 2013 she had received a call on her mobile telephone from a man who had not introduced himself but had stated that he was an officer of the Federal Security Service (“the FSB”) (Федеральная Служба Безопасности (ФСБ)) and that he was holding Mr Sakhrab Abakargadzhiyev. The man, who had called from 8-988-059-41-98, had told her that he would release her son in one day in exchange for 250,000 Russian roubles (RUB). The applicant had passed the telephone to her husband who had told the man they had had only RUB 150,000 and that they would pay RUB 50,000 at once and then RUB 100,000 after their son’s release. The man had told them that Mr Sakhrab Abakargadzhiyev was being held about a ten to twelve hour drive from Makhachkala and that he was in a bad state of health. Between 10 a.m. and 3 p.m. on that date (5 September 2013) the first applicant’s husband and the man had called each other several times. The applicant’s husband had been ordered to deposit RUB 50,000 in the account of mobile telephone number 8-964-519-62-69, which he had done on the same day. The man had confirmed receipt of the money and told the applicant and her husband to wait for his call. But he had not called back and his telephone number had been disconnected since 5 September 2013.

33. On 25 September 2013 the forensic experts informed the investigators that the fingerprints collected from Mr Sakhrab Abakargadzhiyev’s car (see paragraph 19 above) were not fit for identification. The applicants were informed thereof on 21 December 2013.

34. On 30 September 2013 the investigators requested that the Sovetskiy District Court in Makhachkala grant them permission to obtain the call logs of telephone number 8-988-059-41-98 (used by the alleged FSB officer on 5 September 2013) between 1 August and 30 September 2013. Permission was received on 4 October 2013.

35. On 7 October 2013 the investigators searched Mr Sakhrab Abakargadzhiyev’s house. No evidence was collected.

36. On 7 October 2013 the investigators questioned the second applicant whose statement concerning the abduction was similar to that submitted by the applicants to the Court. She had not witnessed the incident but had learnt of it from her relatives.

37. On 9 October 2013 the investigators received the call logs of the telephone number 8-988-059-41-98. According to these logs, the caller who had contacted the first applicant and her husband on 5 September 2013 (see paragraph 32 above) had been located in Volgograd.

38. On 10 October 2013 the first applicant requested the investigators to order an expert analysis of the voice of one of the abductors from the video footage of the incident (see paragraph 23 above); according to her, Mr Ub.Ub. had identified that voice as belonging to a Dagestan CPE officer named Shakir whom he would be able to identify if necessary. The applicant requested that the investigators examine the video and compare the abductor’s voice to that of Shakir.

39. On 16 October 2013 the investigators granted the first applicant’s request and ordered that steps be taken to identify the CPE officer Shakir and to analyse the voice on the video. The applicants were informed thereof.

40. On 26 October 2013 the investigators questioned Mr T.G. who stated that he lived next to the scene of the abduction but had not witnessed it and learnt of it from his neighbours.

41. On 28 October 2013 the investigators questioned police officer A.A. who stated that on 20 May 2013 he had been on duty at the Sovetskiy ROVD and had been called to the abduction scene. According to the witness, the investigators had examined the crime scene and had towed away the white GAZ Volga-3110 car left behind after the abduction to their police station. After about a month the car had been picked up by an unnamed individual.

42. On 1 November 2013 the investigators questioned Shakir N., an officer with the Dagestan CPE, who stated that he did not have information pertaining to the abduction, but that he had participated in the search of the applicants’ house in June 2013 (see paragraph 8 above). The witness also confirmed that in June 2013, about two days after the search, he had spoken with Mr Ub.Ub. who had visited the CPE with his son Mr A.Ub., who had been suspected of involvement in illegal armed groups. Mr Ub.Ub. had requested his assistance in the criminal case against his son Mr A.Ub. but the witness had refused to help him. Due to the passage of time the witness could not recall where he had been on the evening of 20 May 2013 but stated that he had not met Mr Sakhrab Abakargadzhiyev and had not participated in a special operation against him. The witness’ mobile telephone number was 8-967-395-69-75 and he had been using that number since June 2012.

43. On 3 November 2013 the investigators again questioned the first applicant who stated that, in her opinion, her son had been abducted by special forces servicemen or law-enforcement officers as they had suspected Mr Sakhrab Abakargadzhiyev of aiding members of illegal armed groups. Twenty-four days after the abduction the CPE officers had searched her house (see paragraph 8 above). According to the applicant, Mr Ub.Ub. had met officer Shakir in the middle of June when he had gone to the CPE with his son.

44. On 5 November 2013 the investigators received the call logs of the telephone number used for the deposit of RUB 50,000 (see paragaph 32 above). According to the list, on 5 September 2013 the caller had been located in Volgograd, Russia.

45. On 19 November 2013 the investigators ordered an expert analysis of the voices in the abduction video (see paragraph 23 above). It can be seen from the documents submitted that on an unspecified date between 19 and 28 November 2013 the experts concluded that the voice on the footage was not fit for identification (see paragraph 47 below).

46. On 24 or 25 November 2013 the investigators requested the Sovetskiy District Court in Makhachkala to grant them permission to obtain the call logs for between 10 a.m. and 11 p.m. on 20 May 2013 from the telephone number belonging to officer Shakir N. (see paragraph 42 above). This was granted on 28 November 2013.

47. On 28 November 2013 the Dagestan Ministry of the Interior conducted an internal inquiry into the applicants’ allegations of the involvement of the CPE officers in the abduction and concluded, amongst other things, the following:

“... On 20 May 2013 A.A. complained of the abduction of his son Mr Sakhrab Abakargadzhiyev to the Investigations Department ...

... According to the witness statements of the first applicant, Mr R.M., Mr Ub.Ub. and Mr A.Ub., enclosed with the complaint, officers of the CPE were involved in the abduction ... In their statements Mr Ub.Ub. and Mr A.A. directly indicate the CPE officers Ra.M. and Shakir; the latter they had been able to identify from the video posted on Youtube under the title “Abduction of Mr S. Abakargadzhiyev”.

According to the statement of the CPE operational search officer Shakir N. given to the inquiry, ... in June 2013 he had participated with his colleagues from the CPE in the search of Mr Sakhrab Abakargadzhiyev’s home ... After the search, prior to the departure, he and his colleagues had asked Mr Sakhrab Abakargadzhiyev’s relatives to ensure that Mr A.Ub. would appear at the CPE. The latter, who had been related to Mr Sakhrab Abakargadzhiyev, had been listed in the CPE’s database as a supporter of terrorist groups, had been told to report to the CPE to help with enquiries ... several days later Mr A.Ub. had been arrested and charged with the same crimes for which he had been investigated. After the arrest, the father of Mr A.Ub., Mr Ub.Ub., had asked the witness and Captain Ra.M. to assist him in persuading the authorities to be lenient towards his son, but his requests had been refused by the officers ... On the date of Mr Sakhrab Abakargadzhiyev’s abduction the witness had taken a detainee, Mr M.D., to the court ... he had had nothing to do with the abduction. In addition, the witness explained that Mr Sakhrab Abakargadzhiyev had been an ardent supporter of Wahabiism and on several occasions had aided members of Dagestani terrorist groups, in particular, Mr S.Gu., and had participated in the attack on Dagestan traffic police officers near Agachul in February 2013 ...

When questioned, the head of the operational search divison of the Dagestan CPE, Captain Ra.M., confirmed the above statement and explained that neither he nor his subordinate officers had had anything to do with the abduction. Mr Ub.Ub. had told lies about them as he and the servicemen of his department had arrested his son Mr A.Ub. in connection with the investigation of criminal case no. 30284.

According to the evidence submitted by the CPE, they had obtained information concerning planned attempts on the lives of law-enforcement officers committed by Mr S.G., Mr A.Kh., Mr G.A. and Mr Sakhrab Abakargadzhiyev on 6 February 2013. The CPE officers did not arrest or detain Mr Sakhrab Abakargadzhiyev and no operational measures were taken against him...

... It can be seen from the case file that according to the expert analysis of the video “Abduction of S. Abakargadzhiyev” it was imposssible to analyse and identify the voices therein ...

Thus, the internal inquiry was not able to verify the first applicant’s complaints concerning the unlawful actions of the CPE officers owing to significant discrepancies between the statements of those questioned during the inquiry; those discrepancies could be resolved only within the framework of a criminal case ...”

48. On 4 December 2013 the investigators received the call logs of officer Shakir N.’s mobile telephone for 20 May 2013, according to which on that date his telephone had been located in Makhachkala.

49. On 12 December 2013 the investigators questioned forensic expert Mr M.U., who had fingerprinted the white GAZ Volga-3110 car (see paragraphs 19 and 33 above). According to the witness, nobody else had touched the vehicle until after the examination.

50. On 30 December 2013 the investigation was suspended. The applicants were informed thereof.

51. On 28 January 2014 the investigation was resumed and the applicants were informed accordingly. The decision stated, amongst other things, the following:

“... the investigation established that Mr Sakhrab Abakargadzhiyev’s corpse had been found five kilometres north-west of Gurbuki village ... In connection with this, on 1 July 2013 the Kaspiysk Investigations Department opened criminal case no. 329105 ...”

52. On 29 January 2014 the investigators examined the contents of criminal case file no. 329105. According to the contents, there was a 99.93% DNA match between the DNA of the burnt corpse and that of the first applicant taken from the DNA database, as shown by the results of a forensic examination of 23 December 2013.

53. On 3 February 2014, having established that the burnt body found on 1 July 2013 had been that of Mr Sakhrab Abakargadzhiyev, the investigations in criminal cases nos. 302564 and 329105 were joined by the investigators under the number 302564. The decision stated that the body had been found in a VAZ-2107 vehicle in which a home-made explosive device had been detonated.

54. On an unspecified date between February and March 2014 the investigators asked the first applicant to identify the body found on 1 July 2013. According to the applicant, she was not shown the actual corpse, but a photograph of it. She was able to tell from the photograph that it was not the body of her son Mr Sakhrab Abakargadzhiyev: according to the police, the corpse had at least five gold teeth; Mr Sakhrab Abakargadzhiyev did not have any.

55. On 12 March 2014 the first applicant’s husband asked the investigators to question him and the first applicant again about the circumstances of the abduction, to order another expert forensic examination of the corpse and to further examine and identify the voice of Shakir N. recorded by Mr Ub.Ub. The outcome of this request is unknown.

56. It appears from the documents submitted that the proceedings are still pending.

II. RELEVANT DOMESTIC LAW

57. For a summary of the relevant domestic law see Turluyeva v. Russia, no. 63638/09, §§ 56-64, 20 June 2013.

THE LAW

58. 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. THE GOVERNMENT’S PRELIMINARY OBJECTION

A. The parties’ submissions

59. The Government submitted that the investigation into the disappearance of Mr Sakhrab Abakargadzhiyev had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicants to lodge court complaints concerning any alleged acts or omissions on the part of the investigating authorities.

60. The applicants contested the Government’s submission. They stated that the only effective remedy, the criminal investigation, had proved to be ineffective.

B. The Court’s assessment

61. As regards the criminal-law remedies provided for in the Russian legal system, the Court observes that the applicants and their relatives complained to the law-enforcement authorities after the abduction of Mr Sakhrab Abakargadzhiyev and that an investigation has been under way since 14 June 2013. The applicants and the Government dispute the effectiveness of that investigation.

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

A. The parties’ arguments

63. The applicant maintained that it was beyond reasonable doubt that the men who had abducted their relative Mr Sakhrab Abakargadzhiyev on 20 May 2013 had been State agents. In support of their allegation they referred to the following: the abduction had taken place in broad daylight, in an area surrounded by CCTV cameras, in the presence of witnesses; the perpetrators had acted openly, without fear of arrest by law-enforcement authorities; the authorities had wilfully delayed the investigation of the incident by conducting, for instance, the crime scene examination almost two weeks after the applicants’ complaints about it (see paragraphs 17 and 18 above) and by taking further steps either belatedly or with major deficiences (see, for example, paragraphs 19 and 33 above); the CPE officer Shakir N. had been present in the vicinity of the abduction scene during the incident (see paragraphs 38 and 48 above) and the applicants had informed the investigators of his and his colleagues’ alleged involvement in the crime; Mr Sakhrab Abakargadzhiyev had been suspected of involvement in illegal activities and, therefore, the authorities had had motives for his abduction (see paragraphs 38, 43 and 47 above). The applicants also referred to a number of abductions allegedly perpetrated by State authorities in Dagestan between 2011 and 2012 in similar circumstances, where some of the abducted men had subsequently been found in State custody.

64. The Government denied any involvement of State agents in the events. In particular, they stated that only in October 2013 had the first applicant alleged that law-enforcement officers had been involved in the incident (see paragraph 38 above).

B. The Court’s evaluation of the facts

65. The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII).

66. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283) even if certain domestic proceedings and investigations have already taken place.

67. The Court reiterates that it has noted the difficulties for applicants to obtain the necessary evidence in support of allegations in cases where the respondent Government are in possession of the relevant documentation and fail to submit it. Where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of such documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation as to 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 of the Convention (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).

68. The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Sakhrab Abakargadzhiyev the Government produced the relevant documents from the file (see paragraphs 14 and 15 above).

69. The Court has found the Russian State authorities responsible for a number of extra-judicial executions or disappearances of civilians perpetrated in the Chechen Republic at the end of the 1990s and the beginning of the 2000s, even in the absence of final conclusions from the domestic investigation (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-XIII; Estamirov and Others v. Russia, no. 60272/00, 12 October 2006; and Baysayeva v. Russia, no. 74237/01, 5 April 2007). It has done so taking into account the length of time during which the applicants had not had any news of their missing relatives and on the basis of witness statements and other documents attesting to the presence of military or security personnel in the area concerned at the relevant time. It has relied on references to military vehicles and equipment, on witness accounts, on other information on security operations and on the undisputed effective control of the areas in question by the Russian military. On that basis, it has concluded that the areas in question were “within the exclusive control of the authorities of the State” in view of the military or security operations being conducted there and the presence of servicemen (see, mutatis mutandis, Akkum, cited above, § 211, and Zubayrayev v. Russia, no. 67797/01, § 82, 10 January 2008).

70. However, in the present case the circumstances in which the events occurred do not warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative for the following reasons. As regards the general background, the events complained of took place not in Chechnya, but in Dagestan in May 2013, and there was neither a curfew in place nor any restrictions on driving civilian vehicles. Noting that the applicants’ version of the events was based on the statements of those who had not witnessed the abduction themselves, except for the statement of Mr Ma.Ma., that the video of the abduction had not assisted in the identification of the culprits (see paragraphs 24 and 45 above) and taking into account that the abductors drove ordinary vehicles and were wearing balaclavas and civilian clothing, the Court has little evidence to rely upon. However, bearing in mind that after the events the applicants received information alleging knowledge of their relative’s whereabouts which they submitted to the authorities with a delay varying from several days to several weeks (see, for example, paragraphs 28 and 32 above), along with the subsequent discovery of the burnt body and the experts’ evaluation concerning its identity (see paragraphs 52 and 53 above), the Court is not persuaded that the abduction of the applicants’ relative by State agents is the only possible explanation of the events in question.

71. Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a “security operation” had been carried out in respect of Mr Sakhrab Abakargadzhiyev.

72. To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Sakhrab Abakargadzhiyev; nor does the Court consider that the burden of proof can be entirely shifted to the Government.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

73. The applicants complained under Article 2 of the Convention that Mr Sakhrab Abakargadzhiyev had disappeared after having been detained by State agents and that the domestic authorities had failed to carry out an effective investigation into the matter. Article 2 reads as follows:

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

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

74. The Government contended that the domestic investigation had obtained no evidence that any officers of law-enforcement agencies had been involved in the abduction and disappearance of Mr Sakhrab Abakargadzhiyev. The Government claimed that the investigation into the abduction met the Convention requirement of effectiveness.

75. The applicants alleged that Mr Sakhrab Abakargadzhiyev had been abducted by State agents and that the authorities were aware of his whereabouts. They further alleged that the authorities had failed to effectively investigate the matter. In particular, they pointed to the following: the criminal investigation into the abduction had been initiated with a significant delay and the most urgent steps, such as the crime scene examination, had been taken belatedly; the investigators had failed to establish which local residents had witnessed the incident and to question them (for instance, Mr Ma.Ma. had only been questioned a month after the incident and only after the applicants themselves had furnished this information to the investigation); the investigators had failed to obtain the video footage from the CCTV cameras located at the crime scene; and no serious steps, other than the analysis of the voices in the abduction video, had been taken to establish the identities of the perpetrators. The applicants further stated that contrary to the investigation’s conclusions the body found on 1 July 2013 had not been that of their relative Mr Sakhrab Abakargadzhiyev.

B. The Court’s assessment

1. Admissibility

76. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the issue concerning the exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 62 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 Mr Sakhrab Abakargadzhiyev

77. The Court reiterates that Article 2 of the Convention, 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 of the Convention, 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, cited above, § 391).

78. As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged abduction of Mr Sakhrab Abakargadzhiyev. The applicants have not submitted persuasive evidence to support their allegations that State agents were the perpetrators of such a crime. The Court has already found above that it is unable to conclude from the case file as it stands that the authorities were responsible for the abduction (see paragraph 72 above). The Court also notes the absence of an allegation on the part of the applicants that their relative had been deprived of his life by State agents.

79. In such circumstances the Court finds no violation of the substantive limb of Article 2 of the Convention.

(b) Alleged inadequacy of the investigation into the abduction

(i) General principles

80. The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation (see McCann and Others, cited above, § 161). It is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports of Judgments and Decisions 1998-IV, and Ögur v. Turkey [GC], no. 21954/93, §§ 91-92, ECHR 1999-III).

81. The authorities must act of their own motion once the matter has come to their attention; they cannot leave it to the initiative of the next of kin to lodge a formal complaint or take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII).

82. In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports of Judgments and Decisions 1998-VI, and Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation of a particular situation. However, a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

83. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Ögur, cited above, § 88). This is not an obligation of results to be achieved, but of means to be employed. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident (see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000-VII, and Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 109). Any deficiency in the investigation which undermines its ability to establish the identity of the person responsible will risk falling below this standard.

84. In addition, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see McKerr, cited above, § 115).

85. Lastly, the investigation’s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Tsechoyev v. Russia, no. 39358/05, § 153, 15 March 2011). Nevertheless, the nature and degree of the scrutiny required to satisfy the minimum threshold of the investigation’s effectiveness will depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of the investigation (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009).

(ii) Application of the above principles to the present case

86. In the present case, the abduction of Mr Sakhrab Abakargadzhiyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

87. The Court notes that the applicants’ relatives immediately reported the incident to the authorities on 20 May 2013 (see paragraph 16 above). In response to their complaint, the latter took no action until 3 June 2013, when they examined the crime scene. There is no explanation for the reasons for such a belated reaction to reliable information concerning such a serious crime (see paragraph 7 above). In spite of the applicants lodging a second abduction complaint on 24 May 2013 (see paragraph 17 above) in which they alleged that the police were wilfully postponing steps in the investigation, the proceedings were only initiated three weeks later, that is to say on 14 June 2013 (see paragraph 20 above). Thus, no reasonable steps were taken to secure the evidence (see paragraphs 19 and 33 above) and demonstrate diligence and promptness in dealing with such a serious matter (see Shafiyeva v. Russia, no. 49379/09, § 90, 3 May 2012). The Court notes that the video of the abduction made by Mr Ma.Ma. was obtained by the investigation one week after its commencement (see paragraph 24 above). It would be reasonable to presume that the investigators could have questioned immediately, amongst other witnesses, the policemen who had arrived at the crime scene shortly after the incident or enquired whether any special operations had been carried out by the police or the CPE. However, those steps were either taken with a significant delay or not at all (see paragraph 23 and 41 above). Furthermore, in spite of the applicants’ consistent allegations of the involvement of the CPE officers in the abduction (see paragraphs 38 and 43 above) and the latter’s statements to the contrary (see paragraphs 42 and 47 above), no meaningful steps, such as a confrontation or formal questioning of the officers’ colleagues concerning their whereabouts on 20 May 2013, were taken to clarify the situation within the framework of the investigation of the criminal case. Instead, the internal police inquiry which was set up to clarify the situation, concluded that it was impossible to do as there were significant discrepancies in the statements obtained (see paragraph 47 above). In spite of this conclusion, no further steps were taken by the investigators.

88. The Government argued that the applicants had been granted victim status in the criminal case and should, therefore, have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies. The Court has previously accepted that this remedy may, in principle, offer a substantial safeguard against the arbitrary exercise of power by an investigating authority where it refuses to institute criminal proceedings or orders their termination, given a court’s power to reverse a refusal to institute criminal proceedings and indicate the defects to be addressed (see, among many other authorities, Trubnikov v. Russia (dec.), no. 9790/99, 14 October 2003; Dzhamaldayev v. Russia (dec.), no. 39768/06, § 28, 22 January 2013; and Borgdorf v. Russia (dec.), no. 20427/05, § 27, 22 October 2013). However, the Court has on many occasions found this remedy ineffective where the essence of the applicants’ complaints lay in challenges to the investigators’ inaction, resulting from the failure to take the necessary and timely steps and to keep the families informed of the progress and main procedural steps of the proceedings (see Shafiyeva, cited above, § 95, and Askhabova v. Russia, no. 54765/09, § 159, 18 April 2013).

89. In the present case the applicants could have complained of the inaction of the investigative authorities and their failure to promptly take certain steps - for example in order to preserve the evidence. However, from the contents of the investigation file it is apparent that due to the delays in the opening of the investigation and the authorities’ failure to keep them informed of the relevant developments, the applicants learned of the omissions in the proceedings at a later date. In addition, there was no specific procedural act to appeal against. In cases such as the one at hand the domestic courts would be unable to issue specific guidelines to the investigating authorities, because of the absence of such a procedural act. Therefore, an appeal by the applicants to a court against the investigators’ actions or omissions, owing to the nature of the matter and the need to react promptly, along with the limited scope of the court’s review, would not be able to redress the defects in the investigation. Accordingly, the Court finds that an application to the domestic courts with complaints concerning alleged acts or omissions on the part of the investigating authorities would be ineffective in such circumstances and dismisses the Government’s objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

90. On the basis of the above, the Court finds a procedural violation of Article 2 of the Convention in respect of the investigation carried out into the circumstances of the abduction of Mr Sakhrab Abakargadzhiyev.

IV. ALLEGED VIOLATION OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

91. The applicants contended that Mr Sakhrab Abakargadzhiyev had been subjected to torture and inhuman treatment by the abductors and that no effective investigation had been conducted in this connection. The applicants further contended that their relative had been detained in violation of the guarantees contained in Article 5 of the Convention. They also argued that, contrary to Article 13 of the Convention, there were no available domestic remedies against the violations alleged, 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.”

92. The Government contested those arguments.

93. The Court has not established that Mr Sakhrab Abakargadzhiyev was abducted by State agents. Accordingly, in such circumstances, it does not find that the situation gives rise to a violation of Article 3 or Article 5 of the Convention, as alleged by the applicants (see Shaipova and Others v. Russia, no. 10796/04, §§ 111 and 117, 6 November 2008; Movsayevy v. Russia, no. 20303/07, § 103, 14 June 2011; Tovsultanova v. Russia, no. 26974/06, §§ 105 and 111, 17 June 2010; and Shafiyeva, cited above, §§ 104 and 110). These complaints must, therefore, be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

94. As to the applicants’ complaint under Article 13 of the Convention, the Court observes that this aspect has already been examined in the context of Article 2 of the Convention. Having regard to the finding of a violation of Article 2 of the Convention in its procedural aspect, the Court considers that, whilst the complaint under Article 13 taken in conjunction with Article 2 of the Convention is admissible, there is no need for a separate examination of this complaint on its merits (see Khumaydov and Khumaydov v. Russia, no. 13862/05, § 141, 28 May 2009; Zakriyeva and Others, no. 20583/04, § 108, 8 January 2009; and Shaipova and Others, cited above, § 124).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

95. 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

96. The applicants did not lodge a claim in respect of pecuniary damage. In respect of non-pecuniary damage, the applicants jointly claimed 200,000 euros (EUR).

97. The Government submitted that finding a violation of the Convention would be adequate just satisfaction.

B. Costs and expenses

98. The applicants were represented by Mr D. Itslayev. The aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 5,140. The amount claimed was due for the drafting of legal documents, translation services, and administrative and postal costs.

99. The Government stated that the claim was unsubstantiated.

C. The Court’s assessment

1. Damages

100. The Court has found a violation of the procedural aspect of Article 2 of the Convention on account of the ineffective investigation into the disappearance of the applicants’ relative. The Court thus accepts that they have suffered non-pecuniary damage. It awards the applicants jointly EUR 20,000 plus any tax that may be chargeable thereon.

2. Costs and expenses

101. As to costs and expenses, the Court has to establish first whether these costs and expenses were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

102. Having regard to its above conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicants EUR 1,000 under this head, plus any tax that may be chargeable to them on that amount. The award is to be paid into the representative’s bank account, as identified by the applicants.

D. Default interest

103. 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 complaints concerning Articles 2 and 13 of the Convention (taken in conjunction with Article 2) admissible and the remainder of the application inadmissible;

3. Holds that there has been no substantive violation of Article 2 of the Convention in respect of Mr Sakhrab Abakargadzhiyev;

4. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to investigate effectively the abduction of Mr Sakhrab Abakargadzhiyev;

5. Holds that no separate issue arises under Article 13 of the Convention taken in conjunction with Article 2 of the Convention;

6. 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 at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 26 January 2016, 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 >> SALIKHOVA AND MAGOMEDOVA v. RUSSIA - 63689/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 116 (26 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/116.html Cite as: [2016] ECHR 116