Last Updated on May 1, 2020 by LawEuro
THIRD SECTION
CASE OF TIMERBULATOVA AND OTHERS v. RUSSIA
(Applications nos. 44116/10 and 4 others – see appended list)
JUDGMENT
STRASBOURG
21 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Timerbulatova and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 10 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in five applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Russian Government (“the Government”) were given notice of the applications.
3. The Government did not object to the examination of the applications by a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants are Russian nationals who, at the material time, lived in either Chechnya or Ingushetia. Their personal details are set out in the appended table. They are close relatives of individuals who disappeared after allegedly being unlawfully detained by service personnel during special operations. The events concerned took place in areas under the full control of the Russian federal forces. The applicants have not seen their missing relatives since the alleged arrests. Their whereabouts remain unknown.
5. The applicants or other persons reported the abductions to law‑enforcement bodies, and official investigations were opened. The proceedings were repeatedly suspended and resumed, and have been ongoing for several years without any tangible results being achieved. The applicants lodged requests for information and assistance in the search for their relatives with the investigating authorities and various law‑enforcement bodies. Their requests received either only formalistic responses or none at all. The perpetrators have not been identified by the investigating bodies. It appears that all of the investigations are still ongoing.
6. Summaries of the facts in respect of each application are set out below. Each account is based on statements provided by the applicants and their relatives and/or neighbours to both the Court and the domestic investigating authorities. The Government did not dispute the principal facts of the cases as presented by the applicants, but questioned the involvement of service personnel in the events.
A. Timerbulatova v. Russia (no. 44116/10)
7. The applicant was was a relative of three abducted people. She was the mother of Mr Ali Timerbulatov (also spelled as Temirbulatov), who was born in 1977 and Ms Sovdat (also known as Tamara) Timerbulatova, who was born in 1963, and the mother-in-law of Mr Saidal-Khadzhi (also known as Khusen) Magomedov (also spelled as Magomadov), who was born in 1956.
8. The applicant died on 2 February 2017. Her son, Mr Mekhidi Timerbulatov (the brother of Mr Ali Timerbulatov and Ms Sovdat Timerbulatova, and the brother-in-law of Mr Saidal-Khadzhi Magomedov), expressed his wish to pursue the proceedings in her stead on 4 September 2017.
1. Ill-treatment and abduction of Mr Ali Timerbulatov, Mr Saidal‑Khadzhi Magomedov and Ms Sovdat Timerbulatova and subsequent events
(a) Ill-treatment of Mr Ali Timerbulatov, Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova and subsequent events
9. On 13 August 2001 Mr Mekhidi Timerbulatov was arrested in Belorechiye village (Chechnya) and handed over to the police in Gudermes district police station (“the Gudermes ROVD”).
10. According to him, on 16 August 2001 when he was held in the temporary detention facility of the Gudermes ROVD (“Gudermes police station”), police officers brought his relatives, Mr Ali Timerbulatov, Ms Sovdat Timerbulatova and Mr Saidal-Khadzhi Magomedov, who had also been arrested, to see him. Then the police officers beat Mr Ali Timerbulatov and Mr Saidal-Khadzhi Magomedov in front of Mr Mekhidi Timerbulatov. They also threatened to rape Ms Sovdat Timerbulatova to make Mr Mekhidi Timerbulatov confess to illegal activities.
11. At some point later Mr Mekhidi Timerbulatov confessed to several crimes, including terrorist acts and was subsequently sentenced to life imprisonment.
12. After that incident Mr Ali Timerbulatov, Ms Sovdat Timerbulatova and Mr Saidal-Khadzhi Magomedov complained of their ill‑treatment by police officers to various authorities.
13. On 7 January 2002 a police officer, Mr S.T., took Mr Mekhidi Timerbulatov outside the detention facility and arranged a meeting with his sister, Ms T.T. Mr Mekhidi Timerbulatov told her to ask the relatives to stop complaining of their ill-treatment owing to the threats of further repercussions he had received from the police officers.
(b) Abduction of Mr Ali Timerbulatov and subsequent events
14. At 9 a.m. on 11 January 2002 several armed men of Slavic appearance in camouflage uniforms and balaclavas arrived at the applicant’s home in Gudermes in a green UAZ minivan and a white VAZ‑2106 car. The applicant’s home consisted of two houses in the shared courtyard. The armed men broke into the house where Mr Ali Timerbulatov and his partner (Ms Kh.D.) resided. Then they blocked the door of the second house with the applicant, Ms Kh.D and the applicant’s daughter Ms A.T. inside. Following that they forced Mr Ali Timerbulatov into one of the vehicles and drove off in the direction of the railway bridge, where a permanent checkpoint manned by military service personnel was located.
15. On or about 19 January 2002 Mr Ali Timerbulatov was taken to cell no. 5 in Gudermes police station. Mr Mekhidi Timerbulatov was held in cell no. 11 of the same facility and could talk to his brother through the feeding hatch of the cell.
16. According to Mr Mekhidi Timerbulatov, Mr Ali Timerbulatov told his brother that he had been arrested by police officers S.T. and R.U. The next day Mr Ali Timerbulatov was taken away by police officers, including Mr S.T., to an unknown location. Mr Ali Timerbulatov has not been seen since.
17. A few days later Mr Mekhidi Timerbulatov was visited by his sister Ms T.T. and told that Officer S.T. wanted 5,000 United States dollars (USD) for the release of Mr Ali Timerbulatov.
(c) Events preceding the abduction of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova
18. Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova were jewellers at the local market.
19. On an unspecified date, apparently in January 2002, service personnel contacted Mr Saidal-Khadzhi Magomedov, asking him to sell them a large amount of jewellery. They also asked for his address so they could come and collect the jewellery from his home. Mr Saidal-Khadzhi Magomedov accepted their request. In late January 2002 he told those details to Ms S.A.
20. On an unspecified date Ms F., who worked in a cafe in Gudermes, contacted Ms Sovdat Timerbulatova to extort USD 1,500 from her to prevent the forthcoming arrest of Ms Sovdat Timerbulatova and her husband by service personnel from Khankala.
(d) Abduction of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova and subsequent events
21. At 6 a.m. on 29 January 2002 several armed men in balaclavas broke into the flat of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova in Gudermes. At that time their children, Mr A.M. and Ms A.M., were at home.
22. The armed men spoke unaccented Russian. They seized jewellery that Ms Sovdat Timerbulatova was to sell at the local market and took both Mr Saidal‑Khadzhi Magomedov and Ms Sovdat Timerbulatova away to an unknown destination.
23. The witnesses saw that the armed group had arrived in a white (or grey) UAZ minivan and an UAZ car. They also noted an armoured personnel vehicle (“an APC”) which had been parked nearby.
24. Shortly thereafter a grey UAZ minivan (presumably belonging to the abductors) and a white VAZ-2121 (Niva) car passed through checkpoint no. 1 located nearby. The drivers showed special laissez passers which allowed them to avoid inspection by the officers on duty (see paragraph 52 below).
2. Investigation into the abductions
(a) Investigation into the abduction of MrAli Timerbulatov
25. On 25 January 2002 the Gudermes district prosecutor’s office opened criminal case no. 57005 into the abduction of Mr Ali Timerbulatov under Article 126 (abduction) of the Criminal Code (“the CC”).
26. On an unspecified date in February 2002 (the date is illegible) the investigators questioned MrAli Timerbulatov’s sister Ms A.T. She stated that he had been abducted by men in camouflage uniforms who had arrived at his house in a UAZ minivan and VAZ-2106 car.
27. On 25 March 2002 the investigators suspended the proceedings for failure to identify the perpetrators. The applicant or her relatives were not informed of that decision.
28. On 21 April 2005 the proceedings were resumed.
29. On 29 April 2005 the applicant was granted victim status in the criminal proceedings.
30. On 21 May 2005 without informing the applicant or other relatives the investigators suspended the criminal proceedings once again.
31. The proceedings were then resumed on 6 December 2006.
32. On 29 April 2006 the investigators questioned the applicant. Her statement was similar to the account submitted by her to the Court.
33. On 7 January 2007 the investigation was suspended. It is not clear if the applicant was informed of that or not. Subsequently the investigation was resumed on 24 April 2007, 4 April, 23 May, 27 June, 11 August, and 28 October 2008, 29 April, and 29 June 2009, 23 August 2010, 7 February, 4 April, 31 May and 4 August 2011, 12 January, 26 June, 22 August, 23 September and 28 November 2012, 1 February and 26 August 2013, 21 April, 22 September and 27 November 2014, 25 March and 14 May 2015; and then suspended on 29 June 2007, 8 May, 23 June, 4 August, 16 October and 21 November 2008, 6 June and 29 July 2009, 28 September 2010, 7 March, 4 May and 5 September 2011, 25 February, 26 July, 22 September, 23 October and 10 December 2012, 15 February and 31 August 2013, 21 May, 22 October and 8 December 2014, 27 April and 3 June 2015 respectively.
34. In the meantime on 2 July 2007 the investigators questioned two neighbours of the applicant, who due to the passage of time could not recall the events of 11 January 2002.
35. On 2 July 2007 the investigators examined the crime scene. No evidence was collected.
36. On 15 April 2008 the applicant was questioned again. She endorsed her previous statement.
37. On 18 April 2008 the investigators questioned the applicant’s daughter Ms A.T. Her description of the incident did not differ from that, provided by her mother.
38. On an unspecified date in 2008 Mr Mekhidi Timerbulatov was granted victim status in the criminal proceedings.
39. On 4 August 2008 the investigators questioned him. He submitted that he had met his brother (MrAli Timerbulatov)at Gudermes police station in January 2002. Police officers had arranged the meeting to put pressure on Mr Mekhidi Timerbulatov in the context of the criminal proceedings against him. MrAli Timerbulatov had had injuries on his body and had been accompanied by two men, one of whom had been in camouflage uniform and a balaclava. The next day Chechen police officers had taken Mr Ali Timerbulatov to an unknown destination. Mr Mekhidi Timerbulatov was ready to submit the names of the police officers involved in the abduction if the investigators would ensure his and his relatives’ personal safety.
40. On 1 December 2008 MrMekhidi Timerbulatov was questioned again. He specified that the meeting with his brother in Gudermes police station had taken place on or around 20 January 2002.
41. On 21 July 2009 the investigators questioned Ms Kh.D. Her description of the incident was similar to the one submitted by the applicant before the Court.
42. On 23 July 2009 and then on 15 and 18 February 2011 the investigators questioned several police officers from Gudermes. They had no information about the identity of the perpetrators.
43. On 4 April 2011 Mr Mekhidi Timerbulatov was questioned. He submitted that his brother had been arrested on 11 January 2002 by Officers S.T. and R.U. He also listed several detainees, including Mr Yu.M., who could confirm his account of the events.
44. On 13 and 15 April 2011 and 10 July 2012 the investigators questioned several detainees mentioned by Mr Mekhidi Timerbulatov. None of them had seen MrAli Timerbulatov at Gudermes police station.
45. On 7 June 2011 Mr Mekhidi Timerbulatov asked the investigators to take certain investigative steps and ensure his personal participation therein. On 10 June 2011 his request was dismissed.
46. On 28 June 2011 the applicant asked the investigators to carry out certain investigative steps and to annul the order of 4 May 2011 to have the proceedings suspended. On 28 June 2011 the investigators granted the request in the first part. The remainder of the request was dismissed.
47. On 4 August 2011 the investigators obtained the applicant’s blood sample and ordered a DNA test. The outcome of the test is unknown.
48. On 21 October 2011 the police questioned Mr Yu.M. He confirmed that in January 2002 he had seen MrAli Timerbulatov detained at Gudermes police station. Mr Ali Timerbulatov had told him that he had been detained after blackmailing someone with a video recording.
49. On 20 February 2012 the investigators questioned Officer S.T. He submitted that in early January 2002 the investigators in Mr Mekhidi Timerbulatov’s case had cross-examined Mr Mekhidi Timerbulatov with Mr Ali Timerbulatov. The latter had been an important witness in the criminal case because he had been giving evidence against five or six participants in a bombing attack. After the cross-examination Mr Ali Timerbulatov had gone home. Officer S.T. further submitted that Officer R.U. (another individual allegedly involved in the abduction) had been killed in 2005.
50. On 12 November 2013, following an application by the applicant, the Gudermes Town Court in Chechnya declared Mr Ali Timerbulatov dead.
(b) Investigation into the abduction of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova
51. On 30 January 2002 the applicant complained of the abduction of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova to the Gudermes district prosecutor’s office in Chechnya.
52. On the same day the police questioned Officers V.G., A.M. and A.D., who had been on duty at checkpoint no. 1 located about 100 to 150 m from the flat of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova. They submitted that a grey UAZ minivan and a white VAZ‑2121 (Niva) car had passed through the checkpoint on 29 January 2002 at about 6 a.m. The cars had not been inspected, because their drivs had shown special laisser passes.
53. On 1 February 2002 the Gudermes district prosecutor’s office opened criminal case no. 57006 into the incident under Article 126 (abduction) of the CC.
54. On the same date, 1 February 2002, the investigators questioned Ms Sovdat Timerbulatova’s sister, Ms A.T. She stated that the abduction had been perpetrated by service personnel, who had arrived at the flat in UAZ vehicles and an APC.
55. It appears that on 1 February 2002 the police examined the crime scene and the checkpoint. No evidence was collected.
56. On 3 February 2002 the investigators questioned Mr Saidal-Khadzhi Magomedov’s son, Mr A.M. His submission was similar to the applicant’s account of the events before the Court.
57. On the same date, 3 February 2002, the investigators questioned Ms S.A., who stated that on 23 or 24 January 2002 Mr Saidal-Khadzhi Magomedov had told her that service personnel from the local military headquarters had been interested in buying a large amount of jewellery from him. After their persistent requests he had given them his address so they could come and collect the jewellery from his house.
58. On 31 March 2002 the investigation was suspended for failure to identify the perpetrators. It was subsequently resumed on 8 December 2006, 24 April 2007, 8 April, 23 May, 27 June, 11 August, and 28 October 2008, 29 April and 23 June 2009, 30 August and 30 November 2010, 7 February, 4 April, 31 May and 4 August 2011, 12 January, 26 June, 22 August, 23 September and 28 November 2012, 31 January, 26 August 2013, 22 September and 27 November 2014, 25 March and 14 May 2015; and then suspended again on 8 January and 28 May 2007, 8 May, 23 June, 4 August, 16 October and 21 November 2008, 6 June, 23 July 2009, 30 September and 2 December 2010, 7 March, 4 May, 30 June, 5 September 2011, 25 February, 26 July, 22 September, 23 October and 10 December 2012, 15 February, and 31 August 2013, and 22 October and 8 December 2014, and 27 April and 3 June 2015 respectively.
59. In the meantime on 29 September 2003 the Naurskiy District Court in Chechnya declared Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova missing persons.
60. On 3 December 2007 the investigators dismissed Mr Mekhidi Timerbulatov’s application for victim status in the criminal proceedings. Subsequently that decision was quashed by the Gudermes Town Court (see paragraph 74 below).
61. On 17 April 2008 the applicant was granted victim status in the criminal proceedings and questioned. She also informed the investigators of the extortion incident carried out by Ms F. (see paragraph 20 above).
62. On 20 June 2008 the investigators questioned Ms F. She denied extortion. Later that day the investigators cross-examined her with the applicant. During the cross-examination, Ms F. insisted that she had not extorted money from the applicant’s daughter. As regards the abduction, she alleged that it had been perpetrated by the FSB Officer S.N.
63. On 19 July 2008 Mr Mekhidi Timerbulatov was granted victim status in the criminal proceedings.
64. On 1 April 2009 the applicant asked the Chechen Parliamentary Committee on the Search for the Disappeared to assist her in the search for her sons. On 20 April 2009 her request was forwarded to the investigators.
65. On 27 May 2009 the investigators granted victim status in the criminal proceedings to Mr Saidal-Khadzhi Magomedov’s sister, Ms Kh.S.
66. On 22 and 24 June 2009 the investigators questioned Officers A.M. and V.G., who had been on duty at checkpoint no. 1. According to them, on 29 January 2002 at about 5 or 6 a.m. a white or grey UAZ and white VAZ (Niva) car had arrived at the checkpoint. Officer V.G. had approached the UAZ car. Both the driver and a passenger had been in camouflage uniforms. The passenger had introduced himself and showed an FSB service card and a special laissez passer, requesting to let the two cars pass. Officer V.G. had let them go without inspecting the second car.
67. Between 2010 and 2011 the investigators sent various requests to law-enforcement authorities to identify the perpetrators; they also questioned several local police officers and the applicant’s relatives. No relevant information was obtained.
68. On 25 May 2011 the applicant asked the investigators to resume the investigation and to provide her with access to the case file. On 10 June 2011 she was given access to the case file. On 28 June 2011 the investigators refused to resume the investigation.
69. On an unspecified date in June 2011 (the date is illegible) Mr Mekhidi Timerbulatov asked the investigators to carry out certain investigative steps and to ensure his personal participation therein. On 30 June 2011 his request was dismissed.
70. On 1 August 2011 Mr Mekhidi Timerbulatov was provided with detailed information about the progress in the investigation following a request by him.
71. On 4 August 2011 the investigators obtained the applicant’s blood sample and ordered a DNA test. Then they compared her DNA with those in the DNA database of unidentified remains. No matches were found.
72. On 20 February 2012 the investigators questioned the head of the Gudermes district police, Officer S.T. Owing to the time lapsed he was unable to recall the name of the officer who had been in charge in Gudermes police station in January 2002, or the names of the individuals who had been detained there at that time.
73. On 11 July 2012 the investigators questioned Mr A.T. He submitted that in late December 2011 – early January 2011 he had been detained in Gudermes police station. As he had been held in solitary confinement, he was unable to say whether the applicant’s relatives had been detained in the same facility.
3. Proceedings against the investigators’ decision
74. In April 2008 Mr Mekhidi Timerbulatov appealed against the investigators’ refusal to grant him victim status in the two sets of the criminal proceedings. The Gudermes Town Court granted his claims on 8 April 2008.
B. Makhauri v. Russia (no. 70640/10)
75. The applicant is the mother of Mr Sukhrap (also spelled as Sukhrop) Makhauri, who was born in 1980.
1. Abduction of Mr Sukhrap Makhauri
76. At about 4 p.m. on 6 July 2006 a group of about thirty armed men in camouflage uniforms and balaclavas arrived at the applicant’s house in the village of Nesterovskaya, Ingushetia, in armoured APCs, UAZ vehicles and GAZelle minivans. The men broke into the house and without identifying themselves beat Mr Sukhrap Makahuri unconscious in front of the applicant demanding that he tell them where he had hidden weapons. He was then thrown into one of the vehicles and taken away to an unknown location.
2. Subsequent events
77. One hour after Mr Sukhrap Makhauri’s arrest the armed men returned. They stayed in the applicant’s garden overnight expecting members of an illegal armed group to come for the hidden weapons.
78. On the next day, 7 July 2006, the men searched the applicant’s house with a metal detector and found a box of cartridges for automatic firearms. A group of police officers from the Sunzha district police station (“the Sunzha ROVD”) under the command of Officer R.O. arrived at the scene and drafted the crime-scene-examination report.
79. On 11 and 12 July 2006 Investigator R.O. from the Sunzha ROVD questioned the applicant’s husband and the applicant. They stated that on 6 July 2006 a group of men in camouflage uniform had taken away their son, Mr Sukhrap Makhauri. As regards the origin of the box of cartridges, they submitted that it had been brought home and hidden by their son Mr R.M., who had died in 1996.
3. Official investigation of the abduction
80. On an unspecified date in July 2006 the applicant complained of her son’s abduction to the Federal Security Service (“the FSB”) in Ingushetia.
81. On 26 July 2006 the FSB forwarded her complaint to the Ingushetia prosecutor’s office, which referred it to the Sunzha district prosecutor’s office in Ingushetia.
82. On 27 July 2006 the investigators questioned Officer I.Kh., who at the material time had been working in the applicant’s village. He submitted that on 6 July 2006 he had seen two APCs, two GAZelle minivans and an armoured URAL vehicle driving towards the applicant’s house. He had immediately reported that to his superior officer, A.T. The latter had also noted the vehicles and they had started to follow them with another local police officer, A.A. The three officers had seen the vehicles blocking the street where the applicant lived. The men in camouflage uniforms had got out of the vehicles and entered the applicant’s house. Officer I.Kh. had noticed a man in civilian clothes and had spoken to him. The man had explained that the men who had arrived at the applicant’s house had been members of the operative unit under the command of Officer K. They had been instructed to search the applicant’s house and arrest Mr Sukhrap. Later Officer I.Kh had learned that the man in civilian clothes had been Officer G. The next day, 7 July 2006, a group of police officers from the Sunzha ROVD under the command of Officer R.O. had arrived at the applicant’s house, searched it, and found the box of cartridges.
83. On 28 July 2006 the investigators questioned Officer A.T. His submissions were similar to those made by Officer I.Kh.
84. On 21 August 2006 the Sunzha district prosecutor’s office opened criminal case no. 06600061 under Article 126 (abduction) of the CC.
85. On 23 August 2006 the applicant was granted victim status in the criminal proceedings and questioned. Her statement was similar to her submission to the Court.
86. On the same day, 23 August 2006 the investigators questioned Officers I.Kh and A.T. who endorsed their statements of 27 and 28 July 2006.
87. On 1 and 9 September 2006 the investigators questioned several neighbours of the applicant, who confirmed her account of the events.
88. In the meantime the investigators asked various law-enforcement authorities including the FSB, the Sunzha ROVD and remand prisons to inform them whether Mr Sukhrap Makhauri had been arrested and placed in custody. The replies received stated that those bodies had no such information.
89. On 21 November 2006 the investigation was suspended.
90. On 2 April 2009 the applicant requested the investigators to inform her of the progress of the proceedings and the measures taken to establish the whereabouts of her son. On the same day the investigators replied to her by sending a copy of the letter of 5 February 2009.
91. According to the applicant, she learned from unidentified sources that Officer G. had been responsible for the search in their house. Therefore, on 17 April 2009 she requested that the investigation be resumed and Officer G. be questioned.
92. On 20 April 2009 the investigators resumed the proceedings and requested that law-enforcement agencies provide information about Officer G.’s whereabouts.
93. On 20 May 2009 the proceedings were suspended. They were resumed again on 11 June 2009.
94. On 15 June 2009 Officer G. was questioned. He stated that he had searched the applicant’s house with the FSB officers. However, they had not taken Mr Sukhrap Makhauri away and had left the place without him. On their way to Magas, he had received information that as soon as they had left the applicant’s house, Mr Sukhrap Makhauri had received a phone call from a man wanted for involvement in illegal armed groups. He and the officers had immediately returned to the applicant’s house, but Mr Sukhrap Makhauri had already left. They had stayed in the applicant’s garden for the night, expecting that members of illegal armed groups would show up. In the morning they had repeatedly searched the house and found the box of cartridges, which had subsequently been taken to the local police.
95. On 11 July 2009 the investigation was suspended. It was subsequently resumed on 24 November 2010 and then suspended again on 30 December 2010.
4. Proceedings against the investigators’ decision
96. On 17 March 2010 the applicant appealed against the investigators’ decision to suspend the investigation of 11 July 2009 to the Sunzha District Court in Ingushetia.
97. On 22 March 2010 the District Court dismissed the complaint, stating that the investigators had taken all the necessary steps. On 6 April 2010 the applicant appealed to the Supreme Court of Ingushetia, which on 11 May 2010 upheld the decision of 22 March 2010.
C. Novrzukayeva and Others v. Russia (no. 52089/11)
98. The first and the second applicants are the parents of Mr Idris Novrzukayev (also spelled as Novrzakayev, Nouruzukayev, Novzurkayev and Novrznukayev), who was born in 1984.
99. The third applicant is the mother of Mr Abdul-Vab (also spelled as Abdulvab) Dilayev, who was born in 1984.
100. The fourth, fifth, sixth and seventh applicants are the siblings of Mr German Abuyev, who was born in 1984.
1. Abductions of the second applicant, Mr Idris Novrzukayev, Mr Abdul-Vab Dilayev, and Mr German Abuyev, ill-treatment of the second applicant and Mr German Abuyev, and subsequent events
(a) Abduction of Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev
101. At about 9 a.m. on 14 August 2002 service personnel from the 45th regiment started a “sweep” operation in Agishty village, Chechnya.
102. At about 10 a.m. that morning, after service personnel had checked his identity documents, Mr Idris Novrzukayev left his house to visit his aunt, Ms A.N., who lived in the centre of Agishty. A few minutes later the third applicant also went out and followed her son, Mr Abdul-Vab Dilayev. In the village centre she saw twenty armed service personnel and two APCs next to Ms A.N.’s house. According to the third applicant, Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev were on the ground face down with their hands behind their backs in the courtyard of Ms A.N.’s house When neighbours started to gather, the service personnel quickly forced Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev into the APC, which had the vehicle identification number 424, and drove off.
103. Later on the same day the third applicant and other women went to the temporary military headquarters located at the outskirts of Agishty, where all arrested men from the village were usually held. She noticed the APC no. 424 parked nearby. When she asked for the reasons for Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev’s detention, the service personnel replied that they would be released after an identity check.
(b) Abduction and ill-treatment of the second applicant and Mr German Abuyev
104. At about midday on the same day (14 August 2002) a group of armed men arrived in an APC at the second applicant’s house. Five or six of them remained outside, while the other twelve forced their way in. After checking the second applicant’s identity papers and searching the house, the men took him outside and forced him into the APC no. 424. The second applicant saw his son, Mr Idris Novrzukayev, inside that APC. One of the intruders told the second applicant that his son had been detained as he had attempted to run away. Mr Abdul-Vab Dilayev was also in the APC.
105. The second applicant, his son Idris Novrzukayev and other detainees were taken to the basement of an abandoned building at the outskirts of Agishty. The nicknames of two of the men who kept them in that building were Kvadrat (“Square”) and Otets (“Father”).
106. The next morning (15 August 2002) Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev were put in the APC and driven away.
107. At 3 p.m. on that day another APC arrived with Mr German Abuyev in it. He was taken out of the vehicle to the basement, while the second applicant was being put in it. The service personnel turned on loud music in the APC but he still could hear Mr German Abuyev’s screams of pain coming from the basement. After the torture ended, Mr German Abuyev was taken out of the basement and the second applicant was returned to the basement and tortured.
108. In the basement one of the service personnel held the second applicant’s legs, while the other suffocated him. They then closed his nose and poured water in his mouth from a five-litre canister. When the canister was empty, they kicked him in the stomach and all of the water came out. They repeated this five times. Then they put the second applicant on the table and tortured him with electricity. The second applicant still refused their offer to work for them. The service personnel pulled him from the table on the floor and broked few ribs by jumping on his chest. Such was the pain the second applicant begged the service personnel to shoot him, but the men continued jumping on his chest. Then one of them took the knife and cut him in the groin, so the latter passed out.
109. Then the service personnel brought a doctor to the basement, who concluded that the second applicant would not survive further ill-treatment. After that the service personnel threw him on the floor and he passed out. When he regained consciousness, he discovered that he was lying on the grass behind a building. Ten minutes later APC no. 424 arrived and took Mr Abdul-Vab Gilayev and Mr German Abuyev away to Khatuni, a village where the 45th military regiment was stationed.
110. On 15 August 2002, on the day following the abduction, the second applicant was found at the outskirts of Agishty next to the temporary military headquarters. He did not seek medical help in the hospital as he was afraid of revenge from his abductors. Instead he was informally examined by a local doctor, Kh.Kh., who noticed fractures of the jaw and ribs, brain and chest contusions, and a number of haematomata and abrasions on the body.
(c) Subsequent events
111. According to the applicants, a certain FSB officer from the military headquarters of the 45th regiment informed them that Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev had confessed to membership of an illegal armed group. The FSB officer and a serviceman promised to release the applicants’ missing relatives in exchange for a gun and a television set. The second applicant bought a gun and the third applicant bought a television set which they handed over to the FSB officer and the serviceman. However, their relatives were not released.
2. Official investigation into the abductions
112. On 29 August 2002 Mr German Abuyev’s mother complained to the Special Representative of the Russian President in Chechnya of the abduction of her son allegedly perpetrated by service personnel during a “sweep” operation of 14 August 2002.
113. On 22 October 2002 an uncle of Mr Idris Novrzukayev complained of the abduction of Mr Idris Novrzukayev and Mr Abdul‑Vab Dilayev to the deputy head of the Chechen Government. He described the circumstances of their abduction and the abduction of the second applicant, noting that the latter had been found unconscious with evidence of violence having been used on him (his broken ribs and jaw and the brain contusion) on 15 August 2002. He also noted that Mr Idris Novrzukayev’s family had already contacted the Chechen Prosecutor, the Chechen military prosecutor, the Chechen president and other officials, seeking their assistance in the search for their abducted relatives, but to no avail.
114. The aforementioned requests were later transferred to the Shali district prosecutor’s office for examination.
115. On 21 November 2002 the Shali district prosecutor’s officeopened criminal case no. 59260 under Article 126 (abduction) of the CC.
116. On 21 November and 14 December 2002 the first and third applicants respectively were granted victim status in the criminal proceedings. It appears that the third applicant’s name in the relevant decision was misspelled. On the same day they were questioned by the investigators. Their version of the events was similar to that submitted to the Court. The first applicant mentioned the injuries inflicted on her husband, the second applicant, by the service personnel. According to her, he had not sought medical assistance because he was afraid of persecution.
117. In the meantime the investigators asked various law-enforcement authorities to provide them with information about the alleged arrest of the applicants’ relatives. The respondent authorities stated that they had no information in that regard.
118. On 21 January 2003 the investigators suspended the investigation for failure to identify the perpetrators.
119. On 21 May 2003 the investigation was resumed.
120. On 14 June 2003 the second applicant was granted victim status in the criminal proceedings. Having been questioned by the investigators about his injuries, he stated that he had been beaten by the service personnel, but there was no need to order his medical examination as due to the passage of time it would be to no avail.
121. On 14 June 2003 the investigators examined the crime scenes. No evidence was collected.
122. On 21 June 2003 the proceedings were suspended for failure to identify the perpetrators. The applicants were not informed thereof.
123. On unspecified dates in 2005 the first and third applicants contacted the Chechen President seeking his assistance in the investigation. By letters of 15 June and 19 April 2005 they were informed that their requests had been forwarded to the military prosecutor’s office. On 31 May 2006 the second applicant repeated her request to the Chechen President. On 21 June 2006 she was informed that her request had been forwarded to the investigators. No further replies followed.
124. On 7 May 2007 without having the proceedings formally resumed the investigators questioned Mr A.G., who had been arrested during the “sweep” operation in August 2002. He submitted that he had been subsequently taken to remand prison no. IZ-2 in Pyatigorsk, Stavropol Region, where he had allegedly met Mr Idris Novrzukayev, Mr Abdul-Vab Dilayev and Mr German Abuyev.
125. On 29 December 2007, following a request by the first applicant concerning the progress in the proceedings, the investigators informed her that the search was ongoing.
126. On 8 February 2008 the first and third applicants requested that the investigators update them about the course of the proceedings and provide them with copies of certain documents from the case file. On 25 March 2008 the investigators dispatched the requested material to the applicants.
127. On 2 November 2009 the first applicant asked the investigators (i) to resume the proceedings; (ii) to locate the relevant service personnel of the 45th regiment, in particular, Officer A.L.; (iii) to identify the officers who had been in APC no. 424 during the special operation on 14 August 2002; and (iv) to grant her access to the case-file material. The outcome of the request is unknown.
128. On 8 April 2010 the third applicant complained to the investigators’ superior of their disregard of her numerous requests and the lack of information about the course of the criminal proceedings.
129. On 6 May 2010 the third applicant was informed that the criminal case file had been temporarily transferred to the Regional Investigative Committee for assessment of the quality of the investigation.
130. On 7 July 2010 the supervising investigating authority, having reviewed the case file, prepared a list of investigative steps to be taken. It included an expert examination of the second applicant to establish the injuries allegedly inflicted on him by the abductors.
131. 8 July 2010 the proceedings were resumed.
132. On 9 July 2010, the investigators questioned the first applicant. She endorsed her previous statements. In addition, she mentioned that the second applicant had been informally examined by the local doctor, Kh.Kh., who had noticed many injuries on his body. She also mentioned that her son had allegedly been seen in remand prison no. IZ-2 in Pyatigorsk.
133. On 10 July 2010 the second applicant was questioned. His submission was similar to that of his wife. In addition, he provided a detailed description of his arrest and ill-treatment by the service personnel. The investigators invited him to undergo an expert medical examination with a view to establishing the injuries received during the alleged torture in 2002, but the second applicant refused, stating that the traces of ill‑treatment had long gone.
134. On 11 and 12 July 2010 the second and fourth applicants respectively were granted victim status in the criminal proceedings. On 16 July 2010 the investigators obtained DNA samples from them to compare with those from the database of unidentified remains. The outcome of the research is unknown.
135. In the meantime the investigators attempted to obtain information on whether a special operation had been carried out in the applicant’s village on 14 August 2002 and whether the applicants’ relatives had been detained in Stavropol Region as alleged. The military authorities stated that they had no information about the special operation. The detention centres replied that the applicant’s relatives had never been in detention in the Stavropol Region or the other neighbouring regions.
136. On 22 and 27 July 2010 the investigators questioned the uncle of Mr Idris Novrzukayev and the third applicant. They endorsed their previous statements and noted that after the abduction their relatives had allegedly been seen in the remand prison in Pyatigorsk in Stavropol Region.
137. On 27 July 2010 the investigators again granted victim status to the third applicant (apparently because the spelling of her name in the previous decision had been incorrect). In their decision they mentioned the abduction of the applicants’ relatives and the ill-treatment of the second applicant. On the same day the investigators also obtained a DNA sample from the third applicant.
138. On 6 August 2010 two residents of Agishty confirmed to the investigators that service personnel of the 45th regiment had carried out a special operation in their village on 14 August 2002.
139. On 8 August 2010 the proceedings were suspended.
140. On 14 December 2011 the first applicant asked the investigators to inform her of the developments in the case. In reply she was informed on 13 April 2012 that the proceedings had been suspended on 8 August 2010 and that the operative-search activity was ongoing.
3. Proceedings against the investigators’ decision
141. On 25 June 2010 the first applicant appealed against the investigators’ decision to suspend the investigation of 21 June 2003 to the Shali Town Court in Chechnya. The outcome of the proceedings is unknown.
D. Tasuyev and Others v. Russia (no. 17499/12)
142. The first and fourth applicants are the siblings of Mr Lechi Tasuyev, who was born in 1955. The second and third applicants are his children.
1. Abduction and ill-treatment of the first applicant
143. In the evening of 29 May 2003 two UAZ minivans driven by officers with a special service card passed through a checkpoint near Shalazhi (also spelled as Salazhi) village in Chechnya (see paragraph 151 below).
144. At about 6.30 p.m. on 29 May 2003 two vehicles arrived at the applicant’s house in Shalazhi village, Chechnya. At that time the first applicant was in the courtyard of his house. A group of ten to twelve armed men in camouflage uniforms and balaclavas left the vehicles, seized the first applicant, blindfolded him, forced him into one of the two UAZ minivans and then took him away to an unknown destination.
145. Having arrived at that unknown destination, the men took the first applicant to a basement and placed him on his own in a cell that had a floor and walls made of concrete. There were pools of blood and shell casings everywhere. The cell had a heavy iron door and no windows. The men handcuffed the first applicant, blindfolded him, plugged his ears, put adhesive tape over his eyes and beat him. He was detained in the cell for eleven days and subjected to regular beatings. For the entire period he was not given any food. On the twelfth day of his detention, on or around 10 June 2003, the service personnel took the first applicant outside, put him in the boot of a vehicle and drove to Grozny, where they released him somewhere in the town. The first applicant asked passers-by to take him to his relatives, who, shortly after his arrival, called an ambulance to provide medical assistance to him.
2. Abduction of Mr Lechi Tasuyev
146. At about 7 p.m. on the same date, 29 May 2003, Mr Tasuyev, together with the fourth applicant and their relative, Ms P.T., was driving in a Mercedes-Benz car with a registration plate that included the numbers “…500…99” through the intersection of Nuradilova St. and Mazayeva St. in Shalazhi village, Chechnya, when the same group of armed men stopped his car. The men opened fire and wounded Mr Tasuyev. Then they forced him into one of the UAZ minivans and drove off in the direction of Grozny, taking his car with them.
3. Official investigation into the abductions
147. On 29 May 2003 the applicant’s relatives informed the authorities about the abduction of the first applicant and Mr Lechi Tasuyev. The relatives stated that Mr Lechi Tasuyev had been taken away together with his Mercedes-Benz car.
148. On the same day, 29 May 2003, local police officers examined the intersection of Nuradilova and Mazayeva streets in Shalazhi and collected a bullet cartridge as evidence.
149. On 2 June 2003 the Urus-Martan district prosecutor’s office opened criminal case no. 34063 under Article 126 of the CC (abduction).
150. The Government furnished the Court with a copy of the case file, from which certain pages appear to be missing. From the documents in the Court’s possession it appears that the proceedings developed as follows.
151. On 4 June 2003 the police questioned Officer I.B., who had been on duty at the checkpoint near Shalazhi on 29 May 2003. He stated that on that day at around 7 p.m. he had stopped two grey and green UAZ minivans and had seen two people in police uniforms and one person in a military uniform inside. They had showed him a document (apparently a service card) and passed through and continued on towards Shalazhi. Several minutes later he had seen Mr Lechi Tasuyev in his Mercedes-Benz car with registration plate containing the numbers “…500…99” driving in the same direction. Less than five minutes later the Mercedes-Benz car had passed the checkpoint at high speed in the opposite direction, followed by the two UAZ minivans. Shortly after that Shalazhi residents had come to the checkpoint and informed him of the Tasuyev brothers’ abduction. Officer I.B. had contacted a checkpoint near Urus-Martan and had been told that the three vehicles had passed through it too.
152. On 25 July 2003 Mr Lechi Tasuyev’s wife was granted victim status in the criminal proceedings. She submitted that she had learned about the abduction from her neighbours.
153. On 2 August 2003 the investigation was suspended for failure to identify the perpetrators. That decision was overruled as premature and unlawful, and on 24 October 2003 the proceedings were resumed.
154. On 29 October 2003 the investigators questioned Mr Kh.B., an eyewitness to Mr Lechi Tasuyev’s abduction. His description of the event was similar to that submitted by the applicants to the Court.
155. On 5 November 2003 the investigators examined the places from which the Tasuyev brothers had been abducted. No evidence was collected.
156. On the same day, 5 November 2003, the investigators questioned the fourth applicant. Her submissions were similar to those made before the Court.
157. On 19 November 2003 the first applicant was granted victim status in the criminal proceedings. When questioned, he provided a detailed description of his ill-treatment by the perpetrators and noted that after his release from detention he had been examined by ambulance doctors and had undergone outpatient treatment for about two days.
158. On 28 November 2003 the investigators suspended the proceedings. The applicants were not informed of that decision.
159. On 15 June 2009 the above decision was overruled by the supervising investigating authority, which noted that the investigators had failed to question certain witnesses and to take a decision concerning the seizure of Mr Lechi Tasuyev’s Mercedes-Benz car. On the same date the proceedings were resumed.
160. On 17 July 2009 the investigators suspended the proceedings again.
161. On 31 October 2011, following the applicant’s appeal against the above decision (see paragraph 164 below) the investigators resumed the proceedings.
162. On 2 November 2011 the first applicant provided the investigators with the details of the vehicle taken by the abductors.
163. On 9 November 2011 the investigation suspended.
4. Proceedings against the investigators’ decision
164. On 24 October 2011 the first applicant lodged a complaint with the Urus‑Martan District Court regarding the investigators’ decision to suspend the proceedings and their failure to take basic steps. On 1 November 2011 the court dismissed the complaint, having found that a day earlier, on 31 October 2011, the investigators had already resumed the proceedings.
E. Zaurayeva v. Russia (no. 65489/12)
165. The applicant is the wife of Mr Lema Zaurayev, who was born in 1964.
1. Disappearance of Mr Lema Zaurayev and subsequent events
166. At 4.30 p. m. on 23 December 2006 Mr Lema Zaurayev left his home in his VAZ-2107 car. In the evening he was seen near a local market in Grozny, when military service personnel who had arrived at two APCs stopped him and checked his identity documents. Then they asked him if a car which had been parked nearby belonged to him. After he had replied in the affirmative, the military service personnel put him in a UAZ vehicle which had the inscription “alert force” (дежурнаячасть) and then took him away to an unknown destination. Four other village residents were arrested by the military service personnel during that evening.
167. The next day Mr Lema Zaurayev’s car was found next to the market.
2. Official investigation of the incident
168. On 24 December 2006 the applicant complained of her husband’s disappearance to the Leninskiy district police department in Grozny.
169. On 30 December 2006 the applicant was questioned by the investigators. She submitted that she had no information about whereabouts of her husband.
170. On 9 January 2007 the Leninskiy district prosecutor’s office opened criminal case no. 10000 under Article 105 of the CC (murder).
171. The Government furnished a copy of the case file with certain pages missing. From the documents in the Court’s possession it appears that the proceedings developed as follows.
172. On 9 January 2007 the applicant was granted victim status in the criminal proceedings. Having been questioned, she endorsed her previous statement.
173. On 11 January 2007 the investigators questioned Mr Lema Zaurayev’s brother. His statement was similar to that made by the applicant.
174. Between January and March 2007 the investigators requested law‑enforcement authorities to inform them as to whether Mr Lema Zaurayev had been detained during a special operation.
175. On an unspecified date in April 2007 the investigators questioned Mr Lema Zaurayev’s friend Mr Zh.M., who had learned about the incident on 25 December 2006 from the applicant. According to him, she stated that her husband had been abducted by men in military uniforms.
176. On 9 April 2007 the proceedings were suspended. They were subsequently resumed on 11 August and 30 October 2007, 31 March, 14 May, 7 July, 4 September and 24 November 2008, 3 September 2012 and 6 May 2015 and subsequently suspended again on 22 September 2007, 1 May, 15 June, 8 August, 4 October and 25 December 2008, 3 October 2012, and 6 June 2015 respectively.
177. On 15 September 2007 the applicant was again granted victim status in the criminal case. During questioning on 20 November 2007 she informed the investigators that her neighbour – Mr A. – had told her that Mr Lema Zaurayev had been abducted from a local market by men in military uniform, who had checked his identity documents, put him in an UAZ vehicle which had had the inscription “alert force” on it, and then driven him away to unknown destination.
178. On 18 February 2008, following a request by the applicant, the Leninskiy District Court of Grozny declared Mr Lema Zaurayev a missing person.
179. On 24 July 2008 the investigators received from the applicant information about Mr Lema Zaurayev’s mobile telephone number. The next day they applied for court authorisation to obtain the call records for that number. The outcome of the application is unknown.
180. On 3 March 2015 the investigators granted the applicant access to the case file.
181. On 30 April 2015 the applicant asked the investigators to resume the criminal proceedings and question Mr A.P., an eyewitness to her husband’s abduction. Her request was granted on 6 May 2015.
182. The next day, 7 May 2015, the investigators questioned Mr A.P. His statement was similar to the account of the events described in paragraph 166 above.
3. Proceedings against the investigators’ decision
183. On an unspecified date in 2012 the applicant lodged an appeal against the decision of 25 December 2008 to suspend the investigation with the Leninskiy District Court in Grozny.
184. On 4 September 2012 the applicant’s complaint was dismissed as the investigators had resumed the proceedings a day earlier.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL
185. 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 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012).
III. JOINDER OF THE APPLICATIONS
186. 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.
IV. LOCUS STANDI
187. The Court notes that in Timerbulatova v. Russia (no. 44116/10) the applicant died after the case had been communicated to the Government, and that her son, Mr Mekhidi Timerbulatov (the relative of the abducted persons), expressed his wish to pursue the proceedings in her stead on 4 September 2017. The Government did not comment on the issue.
188. The Court normally permits the next of kin to pursue an application, provided they have a legitimate interest, where the original applicant died after lodging the application with the Court (see Murray v. the Netherlands [GC], no. 10511/10, § 79, 26 April 2016, and Maylenskiy v. Russia, no. 12646/15, § 27, 4 October 2016; for cases concerning abductions in Chechnya see Sultygov and Others v. Russia, nos. 42575/07 and 11 others, §§ 381-86). Having regard to the subject matter of the application and all the information in its possession, the Court considers that the applicants’ son, Mr Mekhidi Timerbulatov, has a legitimate interest in pursuing the application and that he thus has the requisite locus standi under Article 34 of the Convention.
V. COMPLIANCE WITH THE SIX-MONTH RULE
A. The parties’ submissions
1. The Government
189. In their observations, the Government argued that the applicants had lodged their applications with the Court several years after the abductions of their relatives, and more than six months after the date on which they ought to have become aware of the ineffectiveness of the ensuing investigations, or more than six months after the most recent decision of the investigators. The Government pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities for a significant amount of time. In Novrzukayeva and Others v. Russia (no. 52089/11) the Government also noted that the applicants’ representative had unduly delayed lodging the application with the Court. According to the Government, all the applications should be declared inadmissible as brought “out of time”.
2. The applicants
190. The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time‑limit to initiate the searches for their missing relatives and assist the authorities in the proceedings. The applicants further submitted that there had been no excessive or unexplained delays in lodging their applications with the Court, which had been brought as soon as they had considered the domestic investigations to be ineffective. According to them, the armed conflict which had been taking place in Chechnya at the material time had led them to believe that investigative delays had been inevitable. It had only been with the passage of time and a lack of information from the investigating authorities that they had begun to doubt the effectiveness of the investigations and had started looking for free legal assistance to assess the effectiveness of the proceedings and then, subsequently, to lodge their applications with the Court without undue delay.
B. The Court’s assessment
1. General principles
191. A summary of the principles concerning compliance with the six‑month rule in disappearance cases may be found in Sultygov and Others (cited above, §§ 369‑74).
2. Application of the principles to the present cases
192. Turning to the circumstances of the cases, the Court notes that in each application the applicants lodged their complaints with the Court within less than ten years of the incidents and the initiation of the related investigations (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 166, ECHR 2009).
193. It further notes that in each application the applicants informed the authorities of the abductions of their relatives within a reasonable time. In Timerbulatova (no. 44116/10), Makhauri v. Russia (no. 70640/10), Tasuyev and Others v. Russia (no. 17499/12), Zaurayeva v. Russia (no. 65489/12) and in Novrzukayeva and Others (no. 52089/11) in respect of Mr German Abuyev’s abduction, the applicants formally complained to the domestic authorities within twenty days of the respective incidents (see paragraphs 14, 21, 24, 51, 76, 103, 112, 146, 147 and 166 above). The date of the first formal complaint in respect of Mr Idris Novrzukayev’s and Mr Abdul‑Vab Dilayev’s abductions in Novrzukayeva and Others is unknown. However, from the documents in the Court’s possession it appears that it was lodged before 22 October 2002 (see paragraph 113 above). Such a delay does not seem to be excessive, particularly regard being had to the fact that immediately after the abduction the third applicant and other village residents contacted the military authorities asking them to release the arrested men (see paragraph 102 above; and compare Kukurkhoyeva and Others v. Russia [CTE], nos. 50556/08 and 9 others, § 212, 22 January 2019, and Yandayeva and Others v. Russia [CTE], nos. 5374/07and 9 others, § 223, 4 December 2018).
194. The Court further observes that in each of the applications the authorities opened a criminal investigation into the applicants’ complaints of abduction, which was repeatedly suspended and then resumed following criticism from the investigators’ superiors. In each case, the investigation was still ongoing when the application was lodged with the Court (see paragraph 5 above).
195. The Court also notes certain lulls in the criminal proceedings when the investigation remained suspended (for Timerbulatova (no. 44116/10) see paragraphs 27, 28 and 58 above; for Makhauri (no. 70640/10) paragraphs 89 and 89 above; for Novrzukayeva and Others (no. 52089/11) paragraphs 122 and 131 above; for Tasuyev and Others (no. 17499/12) paragraphs 158 and 159 above; for Zaurayeva (no. 65489/12) paragraph 176 above). The most significant of them, apparently exceeding five years (the exact dates of suspension and resumption of the proceedings were not always clear) took place in Novrzukayeva and Others (no. 52089/11) and Tasuyev and Others (no. 17499/12). In the first case the proceedings were formally suspended from 21 June 2003 until 8 July 2010. However, during that period the investigator questioned an important witness (see paragraph 124 above) and the applicants demonstrated their interest in the course of the investigation (see paragraphs 123, and 125-129 above). In the second case the investigation remained dormant from November 2003 to June 2009 (see paragraphs 158 and 159 above). Owing to the lack of certain documents from a copy of the case file submitted by the Government, the Court is unable to make a conclusive assessment of the applicants’ conduct at the relevant time, but in any event, as the applicant was not duly informed of the decision to suspend the proceedings on 28 November 2003, he could have expected that the proceedings were still ongoing and steps were being taken to have the crime resolved. In such circumstances, the Court cannot conclude that the applicants’ procedural behaviour was unjustified.
196. In assessing the circumstances of all five cases, the Court observes that all of the applications were lodged within ten years of the incidents (contrast Dzhabrailova and Others v. Russia, nos. 3752/13 and 9 others, 7 May 2019, where the Court declared inadmissible applications submitted more than twelve years after the abductions of the applicants’ relatives), and that the authorities became aware of the abductions without there being undue delays. It also notes the applicants’ efforts to have the dormant proceedings resumed and their overall active stance in the proceedings. Therefore, it concludes that the applicants acted diligently and maintained contact with the investigators.
197. Given the fact that the investigations were complex and concerned very serious allegations, 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). The delays in opening the criminal cases, or the lulls in the proceedings, therefore cannot be interpreted as the applicants’ failure to comply with the six-month requirement (see Abdulkhadzhiyeva and Abdulkhadzhiyev v. Russia, no. 40001/08, §§ 9, 15 and 67, 4 October 2016, where the delay in lodging a formal complaint amounted to eight months, and contrast Doshuyeva and Yusupov v. Russia (dec.), 58055/10, §§ 41-47, 31 May 2016, where the applicants did not contact the investigating authorities for about eight years and three months while the investigation was seemingly dormant).
198. In the light of the above, and bearing in mind the arguments submitted by the parties, the Court concludes that the investigations in the cases at hand, albeit sporadic, were being conducted during the periods in question, and that it is satisfied with the explanations submitted by the applicants (see Varnava and Others, cited above, § 166). Accordingly, they complied with the six-month rule.
VI. COMPLIANCE WITH THE EXHAUSTION RULE
A. The parties’ submissions
1. The Government
199. The Government argued that the applicants in Timerbulatova (no. 44116/10) and Novrzukayeva and Others (no. 52089/11) had failed to exhaust domestic remedies in respect of their complaints related to the abduction of their relatives by challenging in court the actions or omissions of the investigating authorities.
2. The applicants
200. The applicants stated that lodging complaints against the investigators would not have remedied the shortcomings in the proceedings, and that criminal investigations had proved to be ineffective.
B. The Court’s assessment
201. The Court has already concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constitutes a systemic problem, and that criminal investigations are not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217).
202. In such circumstances, and noting the absence of tangible progress in any of the criminal investigations into the abductions of the applicants’ relatives, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government is not effective in the circumstances (for similar reasoning, see Ortsuyeva and Othersv. Russia, nos. 3340/08 and 24689/10, § 79, 22 November 2016).
VII. ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
1. The Government
203. The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on assumptions as there was no evidence proving beyond reasonable doubt that State agents had been involved in the alleged abductions, or that the applicants’ relatives were dead.
2. The applicants
204. The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives (as well as the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12)) had been State agents. In support of that assertion, they referred to evidence contained in their submissions and documents from the criminal investigation files as disclosed by the Government.
205. The applicants also submitted that they had each 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. Given the lack of any reliable news about their relatives for a long time and the life‑threatening nature of unacknowledged detention in Chechnya at the relevant time, they asked the Court to consider their relatives dead.
B. The Court’s assessment
1. General principles
206. A summary of the principles concerning the assessment of evidence and the 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 above principles to the present case
(a) Abduction of the applicant’s relatives
207. Turning to the circumstances of the case before it, and in view of all the material, including the copies of the documents from the relevant criminal case files as submitted by the parties, the Court finds that the applicants have presented prima facie cases that their relatives were abducted by State agents in the circumstances set out above. The Court notes that each of the abductions took place in areas under the State control.
208. In each of the above-mentioned cases the applicants highlighted various circumstances noted by the eyewitnesses suggesting that their missing relatives had been arrested by State agents.
209. Thus, according to witness evidence in Timerbulatova (no. 44116/10) the abductors of Mr Ali Timerbulatov were in camouflage uniforms and of Slavic. They arrived in a UAZ minivan, and took the applicant’s relative away, apparently to Gudermes police station, where he was seen by his brother, Mr Mekhidi Timerbulatov (see paragraphs 14 and 15 above). The abductors of Mr Saidal-Khadzhi Magomedov and Ms Sovdat Timerbulatova spoke unaccented Russian. They arrived at the crime scene in a UAZ minivan (apparently accompanied by an APC and a UAZ or VAZ car) and then passed through road checkpoint showing their laisser passers to the police officers (see paragraphs 21, 23 and 24 above). In Makhauri (no. 70640/10) the service personnel used the same type of military vehicles as in the previous case – APCs and UAZ minivans (see paragraph 76 above). While before the applicant’s relative’s arrest the search for the illicit weapons was unsuccessful, on the following day a box of cartridges was found (see paragraphs 77 and 79 above). In Novrzukayeva and Others (no. 52089/11) the abductions took place during a “sweep” operation (see paragraph 101 above). The applicant’s relatives were taken away to an unknown destination by men in an APC (see paragraphs 102 and 104 above). Officers from the temporary military headquarters indirectly confirmed that Mr Idris Novrzukayev and Mr Abdul-Vab Dilayev were in their custody (see paragraph 103 above). In Tasuyev and Others (no. 17499/12) the alleged service personnel in UAZ minivans had been equipped with a military service card which allowed them to pass unrestrictedly through a road checkpoint (see paragraphs 143 and 151 above). In Zaurayeva (no. 65489/12) the abduction took place in broad daylight and in the presence of numerous witnesses. According to the witness statements, the service personnel arrived at the local market in Grozny in two APCs, checked identity documents and detained several people, including the applicant’s relative, who was then taken away in UAZ car with the inscription “alert force” (see paragraph 166 above).
210. The Court notes that the Government neither provided a satisfactory and convincing explanation for the events in question nor advanced an alternative version of the events. They have therefore failed to discharge their burden of proof.
211. Bearing in mind the general principles enumerated above, the Court finds that the applicants’ relatives were taken into custody by State agents during special operations.
212. Given the lack of any reliable news about Mr Ali Timerbulatov, Ms Sovdat Timerbulatova, Mr Saidal-Khadzhi Magomedov, Mr Sukhrap Makhauri, Mr Idris Novrzukayev, Mr German Abuyev, Mr Abdul-Vab Dilayev, Mr Lechi Tasuyev and Mr Lema Zaurayev since their detention along with the life‑threatening nature of such detention, and the finding of the domestic courts (see paragraph 50 above), the Court finds that the aforementioned relatives of the applicants may be presumed dead following their unacknowledged detention.
(b) Arrest of the applicants in the cases of Novrzukayeva and Others (no. 52089/11) and Tasuyev and Others (no. 17499/12)
213. The Court notes that the circumstances of the arrest of the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12) were very similar to those of their relatives. Furthermore, the applicants and their relatives were abducted on the same day (see paragraphs 104 and 146 above). Taking into account that similarity as well as its finding in paragraph 211 above, the Court considers that the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12)were taken into custody by State agents.
VIII. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
214. The applicants complained, under Article 2 of the Convention, that their relatives had disappeared after being detained by State agents and that the domestic authorities had failed to carry out effective investigations 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 …”
A. The parties’ submissions
215. In the cases of Tasuyev and Others (no. 17499/12) and Zaurayeva (no. 65489/12) the Government submitted that the complaints should be rejected, because the applicants had failed to substantiate their allegations that the enforced disappearances in question had been perpetrated by State service personnel. In Zaurayeva (no. 65489/12) the Government noted that the Court’s conclusions made in Aslakhanova and Others (cited above) were not applicable to the case, because the events in question had taken place in 2006, when special military operations had been carried out only on rare occasions.
216. In the cases of Timerbulatova (no. 44116/10), Makhauri (no. 70640/10) and Novrzukayeva and Others (no. 52089/11) the Government contended that Article 2 of the Convention was inapplicable to the applicants’ complaints of abductions, which should instead be examined under Article 5 of the Convention. To this end they referred to the case of Kurtv. Turkey (25 May 1998, §§ 101‑09, Reports of Judgments and Decisions 1998‑III).The Government stated that the fact that in some of the cases the arrested persons had been released and returned home demonstrated that arrest in itself could not lead to a conclusion that there had been a violation of Article 2 of the Convention. Furthermore, in respect of these three cases the Government submitted that the mere fact that the investigations had not produced any specific results, or had produced only limited ones, did not mean that they had been ineffective. They asserted that all necessary steps had been taken to comply with the positive obligation under Article 2 of the Convention.
217. The applicants maintained their complaint, alleging that their relatives had been abducted and intentionally deprived of their lives in circumstances violating Article 2 of the Convention. They furthermore argued that the investigation into the incidents had fallen short of the standards set down in the Convention and national legislation. Lastly, the applicant in Zaurayeva (no. 65489/12) noted that, in breach of Article 38 of the Convention, the Government had failed to duly comply with the Court’s request for the investigation files.
B. The Court’s assessment
1. Admissibility
218. 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
219. The Court observes that it is undisputed by the parties that the whereabouts of the applicants’ relatives remained unaccounted for from the time of their abduction until the lodging of the applications with the Court. The question arises whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situations.
220. The Court has previously held that Article 5 of the Convention imposes an obligation on the State to account for the whereabouts of any person who has been taken into detention and who has thus been placed under the control of the authorities (see Kurt, cited above, § 124). Whether a failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on specific evidence, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV, and Ertak v. Turkey, no. 20764/92, § 131, ECHR 2000-V).
221. In this connection, the Court notes that the Government denied that the applicants’ relatives had been detained by State agents or had been under the control of the authorities after their abduction. Therefore, the Government’s argument concerning the applicability of Article 5 of the Convention instead of Article 2 of the Convention is inconsistent. In any event, leaving aside the contradictory nature of the Government’s position in this regard, the period of time which has elapsed since each person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may, along with other elements of circumstantial evidence before the Court, provide grounds to conclude that the person concerned is to be presumed dead. In this connection the Court considers that such a situation gives rise to issues which go beyond a mere “irregular detention” in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life, as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Çakıcı, cited above, § 86, and Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000‑VI). Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this connection should be dismissed.
222. On the basis of the above, and noting that it has already been found that in all of the applications under examination the applicants’ relatives may be presumed dead following their unacknowledged detention by State agents (see paragraph 212 above), the Court finds, in the absence of any justification put forward by the Government, that the deaths of the applicants’ relatives 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 Mr Ali Timerbulatov, Ms Sovdat Timerbulatova, Mr Saidal-Khadzhi Magomedov, Mr Sukhrap Makhauri, Mr Idris Novrzukayev, Mr German Abuyev, Mr Abdul-Vab Dilayev, Mr Lechi Tasuyev and Mr Lema Zaurayev.
(b) Alleged inadequacy of the investigations into the abductions
223. At the outset the Court notes that in the cases of Tasuyev and Others (no. 17499/12) and Zaurayeva (no. 65489/12) the Government apparently submitted only part of the investigation files (see paragraphs 150 and 171 above). However, regard being had to the material provided by the applicants, the Court considers that it is not precluded by the lack of certain documents from examining on the merits the issues raised in the applications.
224. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances that occurred in Chechnya between 1999 and 2006 in particular, and that such a situation constitutes a systemic problem under the Convention (see paragraph 201 above). The Court notes that in the case of Zaurayeva (no. 65489/12), as well as other cases under examination, the abduction took place within the said period. In the cases at hand, as in many previous similar cases reviewed by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives. While the obligation to investigate effectively is one of means to be employed and not of results to be achieved, 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 Othersjudgment (cited above, §§ 123‑25). Each set of proceedings included several decisions to suspend the investigation; those suspensions were followed by periods of inactivity, which further diminished the prospects of solving the crimes. No timely and thorough measures have been taken to identify and question the service personnel who could have participated in the abductions.
225. In the light of the foregoing and not having seen any special circumstances which would justify a different approach tothe cases at hand, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearances and deaths of Mr Ali Timerbulatov, Ms Sovdat Timerbulatova, Mr Saidal-Khadzhi Magomedov, Mr Sukhrap Makhauri, Mr Idris Novrzukayev, Mr German Abuyev, Mr Abdul-Vab Dilayev, Mr Lechi Tasuyev and Mr Lema Zaurayev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.
IX. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION
226. The applicants in Timerbulatova (no. 44116/10), Makhauri (no. 70640/10) and Novrzukayeva and Others (no. 52089/11) in their application forms complained of a violation of Article 3 of the Convention on account of the mental suffering caused by the disappearance of their relatives. The applicants in Tasuyev and Others (no. 17499/12) lodged a similar complaint at an advanced stage of the proceedings, together their comments on the Government’s observations, asking the Court to examine it on the merits. The applicants in Timerbulatova (no. 44116/10) and Makhauri (no. 70640/10) also complained of ill-treatment of their abducted relatives. In addition, the applicants in Novrzukayeva and Others (no. 52089/11) and Tasuyev and Others (no. 17499/12) complained of ill‑treatment of the second and the first applicants respectively.
227. The applicants in all cases also complained of a violation of Article 5 of the Convention on account of the unlawfulness of their relatives’ detention. In addition, the applicants in Novrzukayeva and Others (no. 52089/11) and Tasuyev and Others (no. 17499/12) made similar complaints in respect of the second and the first applicants respectively.
228. In each of the five cases the applicants furthermore argued that, contrary to Article 13 of the Convention, they had had no available domestic remedies in respect of the alleged violation of Article 2 of the Convention. The applicants in Tasuyev and Others (no. 17499/12) also alleged a lack of effective domestic remedies in respect of their complaints under Articles 3 and 5 of the Convention. The Articles in question read, in so far as relevant, as follows:
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
229. The Government contested the applicants’ claims. They alleged, in particular, that the applicants’ mental suffering had not reached the minimum level of severity required to fall within the scope of Article 3 of the Convention, and that there was no evidence of the alleged ill-treatment of the applicants’ relatives in Timerbulatova (no. 44116/10) and Makhauri (no. 70640/10). The Government also stated in general terms that there was neither evidence of the applicants’ relatives’ arrest by State agents, nor of the alleged arrests and ill-treatment of the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12). Lastly, they averred that the relevant domestic legislation, including Articles 124 and 125 of the Russian Code of Criminal Procedure, provided the applicants with effective remedies for their complaints (in particular, they referred to the case of Trubnikov v. Russia (no. 49790/99, 5 July 2005).
230. The applicants maintained their complaints.
B. The Court’s assessment
1. Preliminary issue
231. The Court notes that in Tasuyev and Others (no. 17499/12) after the case had been communicated to the Government, the applicants lodged a new complaint under Article 3 of the Convention concerning their mental suffering caused by the disappearance of Mr Lechi Tasuyev. That complaint was lodged with the Court belatedly and the Court will not therefore examine it (see Chernenko and Others (dec.), nos. 4246/14 and 4 others, § 37, 5 February 2019).
2. Admissibility
232. The Court notes that the applicants’ complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It furthermore notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
3. Merits
(a) Alleged violation of Articles 3, 5 and 13 of the Convention on account of unlawful detention and disappearance of the applicants’ relatives
233. 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)). Where the news of a missing person’s death has been preceded by a sufficiently long period during which he or she has been deemed to have disappeared, there exists a distinct period during which the applicants have suffered the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts)).
234. The Court reiterates its findings regarding the State’s responsibility for the abductions of the applicants’ relatives and the failure to carry out meaningful investigations into the incidents. It finds that the applicants in Timerbulatova (no. 44116/10), Makhauri (no. 70640/10) and Novrzukayeva and Others (no. 52089/11), who are close relatives of the abducted, must be considered victims of a violation of Article 3 of the Convention on account of the distress and anguish that they suffered, and continue to suffer, as a result of their inability to ascertain the fate of their missing family members and of the manner in which their complaints have been dealt with.
235. As for the applicants’ complaint in Timerbulatova (no. 44116/10) and Makhauri (no. 70640/10) concerning alleged ill-treatment of the their abducted relatives, the Court does not find it necessary to examine it separately in view of its findings under the substantive limb of Article 2 of the Convention (see paragraph 222 above. See also Sultygov and Others, cited above, § 456).
236. The Court has found on several occasions that unacknowledged detention constitutes 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, cited above, § 122). It confirms that since it has been established in the present case that the applicants’ relatives were detained by State agents (see paragraph 212 above) – apparently without any legal grounds or acknowledgment of such detention – this constitutes a particularly grave violation of the right to liberty and security of person enshrined in Article 5 of the Convention. Accordingly, there has been a violation of that provision in all five cases under examination in respect of the applicants’ missing relatives.
237. The Court reiterates its findings regarding the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of the results of a criminal investigation, any other possible remedy becomes inaccessible in practice.
238. In the light of the above, and taking into account the scope of the applicants’ complaints, the Court finds that the applicants did not have at their disposal an effective domestic remedy for their grievances under Article 2, in breach of Article 13 of the Convention.
239. As regards the alleged breach of Article 13, read in conjunction with Article 5 of the Convention, as submitted by the applicants in Tasuyev and Others (no. 17499/12) in respect of the applicant’s abducted relative, the Court notes that according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5 of the Convention, being a lex specialis in relation to Article 13 of the Convention, absorb its requirements. In view of its finding above of a violation of Article 5 of the Convention, the Court considers that no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention in that case (see, among many other authorities, Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015, and Aliyev and Gadzhiyeva v. Russia, no. 11059/12, § 110, 12 July 2016).
(b) Alleged violation of Articles 3, 5 and 13 of the Convention on account of unlawful detention and ill-treatment of the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12)
240. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of that provision. Furthermore, allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, § 61, in fine, Series A no. 25).
241. Turning to the Government’s objection that the applicants’ complaints of ill-treatment were unsubstantiated, the Court notes that in the case of Aslakhanova and Others it has found a violation of Article 3 of the Convention on the basis of the consistent and detailed description of ill‑treatment provided by the applicant (see Aslakhanova and Others, cited above, §§ 23 and 142-43).
242. In the applications under examination, similarly to the aforementioned case, the applicants provided both the domestic authorities and the Court with detailed and consistent statements regarding the detention and ill-treatment of the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12) (see paragraphs 113, 120, 133, 137, 147 and 157 above). Considering those elements, as well as the Government’s failure to provide any tenable explanation, other than their mere denial, the Court dismisses the Government’s argument that the applicants’ complaints were unsubstantiated.
243. It further notes that the mere fact of being held incommunicado in unacknowledged detention, witnessing the ill-treatment of a neighbour (see paragraph 107 above) would have caused the second applicant in Novrzukayeva and Others (no. 52089/11) considerable anguish and distress, and put him in acute and constant fear of being subjected to ill-treatment or even killed. Similar feelings would have experienced by the first applicant in Tasuyev and Others (no. 17499/12) on account of the particular length of his detention incommunicado and its severe conditions (see paragraph 145 above). In view of all the known circumstances of the present cases, that treatment reached the threshold of severity required to engage Article 3 of the Convention.
244. Accordingly, the Court considers that there has been a violation of Article 3 of the Convention in respect of the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12)in so far as it prohibits inhuman and degrading treatment.
245. As to the complaint under Article 5 of the Convention, the Court has already established in the present case that the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12) were detained by State agents (see paragraph 213 above) – apparently without any legal grounds or acknowledgment of such detention – this constituted a particularly grave violation of the right to liberty and security of person enshrined in Article 5 of the Convention. Accordingly, there has been a violation of that provision in respect of the said applicants.
246. As regards the complaint under Article 13 taken in conjunction with Article 3 raised in the case of Tasuyev and Others (no. 17499/12), the Court reiterates that it has already found a violation of that provision on account of the authorities’ failure to investigate effectively the abduction of the applicants’ relative (see paragraph 238 above). Taking into account that the circumstances of the first applicant’s ill-treatment were closely linked to that offence and that no separate or more effective investigation into his ill‑treatment followed, the Court considers that the first applicant did not have at his disposal effective domestic remedy for his complaint of ill‑treatment in breach of Article 13 of the Convention.
247. Lastly, as regards the alleged breach of Article 13, read in conjunction with Article 5 of the Convention, as submitted by the applicants in Tasuyev and Others (no. 17499/12) in respect of the first applicant, the Court considers that no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention (see paragraph 239 above).
X. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND ARTICLE 13 IN CONJUNCTION WITH THAT ARTICLE
248. The applicants in Tasuyev and Others (no. 17499/12) claimed that during the arrest of their relative Mr Lechi Tasuyev the State agents had unlawfully seized his Mercedes-Benz car, thereby violating the property rights guaranteed under Article 1 of the Protocol no. 1 of the Convention, which provides, in particular:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. …”
A. The parties’ submissions
249. The Government did not comment on the claim.
250. The applicants maintained their complaint.
B. The Court’s assessment
1. Admissibility
251. The Court finds that the present 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
(a) Alleged violation of Article 1 of Protocol no. 1 to the Convention
252. The Court notes that the Government did not dispute the applicants’ title to the car. Taking into account that it has already established that the abductors of the applicants’ relative had been State agents (see paragraph 222 above), the Court finds that the loss of property was imputable to the respondent State.
253. Accordingly, there was an interference with the right to the protection of property. In the absence of any reference on the part of the Government to the lawfulness and proportionality of that action, the Court finds that there has been a violation of the right to protection of property guaranteed by Article 1 of Protocol No. 1 to the Convention (see Gakayeva and Others v. Russia, nos. 51534/08 and 9 others, §§ 383-84, 10 October 2013).
(b) Alleged violation of Article 13 in conjunction with Article 1 of Protocol no. 1 to the Convention
254. The Court considers that given that the domestic investigators failed to effectively investigate the matter, the applicants did not have at their disposal effective domestic remedies in respect of the alleged violation of their rights under Article 1 of Protocol No. 1 to the Convention. Accordingly, there has been a violation on that account (see Abdulkhadzhiyeva and Abdulkhadzhiyev, cited above, §§ 98-100).
XI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
255. 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. Pecuniary damage
256. The applicants in all of the cases, save for Tasuyev and Others v. Russia (no. 17499/12), claimed compensation for loss of financial support from the breadwinners in their families. The amounts of compensation sought are indicated in the appended table.
257. The applicants in Timerbulatova v. Russia (no. 44116/10), Novrzukayeva and Others v. Russia (no. 52089/11) based their calculations on the Ogden Actuarial Tables. In the latter case the claim contain what appears to be a clerical error concerning the number of the applicants (the claim was made in respect of eight applicants and not seven).
258. The applicant in Makhauri v. Russia (no. 70640/10) submitted her calculations based on the average salary in Ingushetia.
259. The applicant in Zaurayeva v. Russia (no. 65489/12) referred to the basis of the minimum minimal subsistence.
260. The Government left the issue to the Court’s discretion.
2. Non-pecuniary damage
261. The amounts claimed by the applicants in respect of non-pecuniary damage are indicated in the appended table.
262. The Government left the issue to the Court’s discretion.
B. Costs and expenses
263. The amounts claimed by the applicants are indicated in the appended table. They asked for the awards to be transferred into the bank accounts of their representatives.
264. The Government left the issue to the Court’s discretion.
C. The Court’s assessment
265. The Court reiterates that there must be a clear causal connection between the damages claimed by 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 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).
266. 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.
267. As to costs and expenses, the Court has to establish whether they were actually incurred and 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).
268. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicants the amounts detailed in the appended table, plus any tax that may be chargeable to them on those amounts. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts, as indicated by the applicants.
D. Default interest
269. 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.
XII. ARTICLE 46 OF THE CONVENTION
270. The applicant in Makhauri (no. 70640/10) asked the Court to indicate that there is an obligation on the respondent Government to identify and prosecute those responsible for the abduction of her son, and that an award in respect of non-pecuniary damage should be coupled with a decision by the Court that a fresh investigation should follow the entry into force of the Court’s judgment. The applicant also asked the Court to indicate that, irrespective of the outcome of the investigation, the respondent Government should undertake all possible measures to locate the body of her abducted relative and return it to the family members, and that they should provide her with access to the investigation file.
271. The Government did not comment on this part of the applicant’s submission.
272. Article 46 of the Convention provides as far as relevant:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
273. Keeping in mind its findings in Aslakhanova and Others (cited above, §§ 220-38) concerning the systemic problem of ineffective investigations into disappearances in the region at the material time, along with its findings in a number of similar cases in which it has decided, with reference to its established principles, that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order with a view to discharging their legal obligation under Article 46 of the Convention (see, among other authorities, Mutsolgova and Others v. Russia, no. 2952/06, § 168, 1 April 2010, and Sultygov and Others, cited above § 504). The Court does not see any exceptional circumstances which would lead it to reach a different conclusion in the present case.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Decides that in the application Timerbulatova v. Russia (no. 44116/10) Mr Mekhidi Timerbulatov has locus standi in the proceedings before the Court;
3. Declares the applications admissible;
4. Holds that there has been a substantive violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Ali Timerbulatov, Ms Sovdat Timerbulatova, Mr Saidal-Khadzhi Magomedov, Mr Sukhrap Makhauri, Mr Idris Novrzukayev, Mr German Abuyev, Mr Abdul-Vab Dilayev, Mr Lechi Tasuyev and Mr Lema Zaurayev;
5. Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate effectively the disappearance of the applicants’ relatives;
6. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants in Timerbulatova (no. 44116/10), Makhauri (no. 70640/10) and Novrzukayeva and Others (no. 52089/11) on account of their mental suffering caused by their relatives’ disappearance and the authorities’ response to their suffering;
7. Holds that it is not necessary to examine separately the complaints under Article 3 of the Convention concerning alleged ill-treatment of the applicants’ relatives in Timerbulatova (no. 44116/10) and Makhauri (no. 70640/10);
8. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ missing relatives on account of their unlawful detention;
9. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
10. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 5 of the Convention in Tasuyev and Others (no. 17499/12) in respect of Mr Lechi Tasuyev;
11. Holds that there has been a violation of Article 5 of the Convention in respect of the second applicant in Novrzukayeva and Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12) on account of their unlawful detention;
12. Holds that there has been a violation of Article 3 of the Convention in respect of the second applicant in Novrzukayevaand Others (no. 52089/11) and the first applicant in Tasuyev and Others (no. 17499/12) on account of their ill-treatment in detention;
13. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in Tasuyev and Others (no. 17499/12);
14. Holdsthat no separate issue arises under Article 13 of the Convention in conjunction with Article 5 of the Convention in Tasuyev and Others (no. 17499/12) in respect of the first applicant;
15. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in Tasuyev and Others (no. 17499/12);
16. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention in Tasuyev and Others (no. 17499/12);
17. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement. The awards in respect of costs and expenses are to be paid into the representatives’ bank accounts as indicated 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;
18. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 21 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena Poláčková
Registrar President
APPENDIX
| No. | Application no. and
date of introduction |
Applicant
Date of birth Place of residence Kinship with the abducted person(s) |
Abducted person(s) | Represented by | Pecuniary damage | Non-pecuniary damage | Costs and expenses |
| 1 | 44116/10
01/07/2010 |
Ms Saydat TIMERBULATOVA
1940 Gudermes mother of Mr Ali Timerbulatov and of Ms Sovdat Timerbulatova, mother-in-law of the late Mr Saidal‑Khadzhi Magomedov
The applicant’s son, Mr Mekhidi Timerbulatov (born on 06/05/1970), pursued the application.
|
(1) Mr Ali Timerbulatov (also spelled as Temirbulatov)
(2) Ms Sovdat (also known as Tamara) Timerbulatova
(3) Mr Saidal-Khadzhi (also known as Khusen) Magomedov (also spelled as Magomadov) |
SRJI/
ASTREYA |
Sought by the applicant | ||
| 1,094,146 Russian roubles ((RUB) 14,888 euros (EUR)) | in an amount to be determined by the Court | EUR 3,803 | |||||
| Awarded by the Court | |||||||
| EUR 5,000 (five thousand euros) | EUR 240,000 (two hundred and forty thousand euros) | EUR 2,000 (two thousand euros) | |||||
| 2 | 70640/10
10/11/2010 |
Ms Zelimat MAKHAURI
23/03/1953 Nesterovskaya, Ingushetia mother |
Mr Sukhrap (also spelled as Sukhrop) Makhauri | EHRAC/
MEMORIAL HUMAN RIGHTS CENTRE |
Sought by the applicant | ||
| EUR 12,661 | in an amount to be determined by the Court | EUR 1,500 and 2,771 pounds sterling (EUR 2,950) | |||||
| Awarded by the Court | |||||||
| EUR 6,000 (six thousand euros) | EUR 80,000 (eighty thousand euros) | EUR 2,000 (two thousand euros) covering all costs | |||||
| 3 | 52089/11
10/08/2011 |
(1) Ms Tamara NOVRZUKAYEVA
(also spelled as Naurzukayeva and Novrzakayeva) 02/08/1950 Agishty, Chechnya mother of Mr Idris Novrzukayev
(2) Mr Isa NOVRZAKAYEV (also spelled as Novrzukayev and Naurzukayev) 12/05/1949 Agishty, Chechnya father of Mr Idris Novrzukayev
(3) Ms Rumi MAGOMEDKHADZHIYEVA 10/12/1963 Agishty, Chechnya mother of Mr Abdul-Vab Dilayev
(4) Ms Manash ABUYEVA 31/05/1973 Agishty, Chechnya sister of Mr German Abuyev
(5) Ms Malkan (also spelled Malkan) ABUYEVA 19/10/1970 Agishty, Chechnya sister of Mr German Abuyev
(6) Ms Elima ZAKARAYEVA 01/10/1980 Noyber, Chechnya sister of Mr German Abuyev
(7) Ms Elita ABUYEVA 02/06/1983 Grozny, Chechnya sister of Mr German Abuyev |
(1) Mr Idris Novrzukayev (also spelled as Novrzakayev, Nouruzukayev, Novzurkayev and Novrznukayev)
(2) Mr German Abuyev
(3) Mr Abdul-Vab (also spelled as Abdulvab) Dilayev (also spelled as Gilayev and Delayev)
|
SRJI/
ASTREYA |
Sought by the applicants | ||
| RUB 1,549,784 (EUR 21,090) to the first applicant
RUB 1,368,317 (EUR 18,620) to the second applicant
RUB 1,782,476 (EUR 24,250) to the third applicant
RUB 297,079 (EUR 3,800) to the fourth, fifth, sixth and seventh applicants each |
in an amount to be determined by the Court; the award should be made to each of the families separately | EUR 5,002 | |||||
| Awarded by the Court | |||||||
| EUR 11,000 (eleven thousand euros) to the first applicant
EUR 9,000 (nine thousand euros) to the second applicant
EUR 12,000 (twelve thousand euros) to the third applicant
EUR 2,000 (two thousand euros) to the fourth, fifth, sixth and seventh applicants each |
EUR 80,000 (eighty thousand euros) to the first and second applicants jointly
EUR 80,000 (eighty thousand euros) to the third applicant
EUR 80,000 (eighty thousand euros) to the fourth, fifth, sixth and seventh applicants jointly
|
EUR 2,000 (two thousand euros) | |||||
| 4 | 17499/12
29/02/2012 |
(1) Mr Khamzat TASUYEV
24/06/1961 Shalazhi, Chechnya brother
(2) Mr Saykhan TASUYEV 26/09/1979 Moscow son
(3) Mr Salambek TASUYEV 15/02/1985 Moscow son
(4) Ms Khadizhat DZHAMALDINOVA 15/12/1957 Grozny sister |
Mr Lechi Tasuyev | SRJI/
ASTREYA INITIATIVE |
Sought by the applicants | ||
| in an amount to be determined by the Court; the award should be made to each of the applicants separately | EUR 1,603 | ||||||
| Awarded by the Court | |||||||
| EUR 20,000 (twenty thousand euros) to each of the applicants | EUR 1,603 (one thousand six hundred and three euros) | ||||||
| 5 | 65489/12
25/09/2012 |
Ms Eyza ZAURAYEVA
12/04/1966 Grozny wife |
Mr Lema Zaurayev | Mr D. ITSLAYEV | Sought by the applicant | ||
| EUR 41,270 | EUR 500,000 | EUR 3,536 | |||||
| Awarded by the Court | |||||||
| EUR 12,000 (twelve thousand euros) | EUR 80,000 (eighty thousand euros) | EUR 1,000 (one thousand euros) | |||||
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