Last Updated on May 3, 2019 by LawEuro
THIRD SECTION
CASE OF YANDAYEVA AND OTHERS v. RUSSIA
(Applications nos. 5374/07 and 9 others – see list appended)
JUDGMENT
STRASBOURG
4 December 2018
This judgment is final but it may be subject to editorial revision.
In the case of Yandayeva and Khamayev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 13 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in ten 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 applications were communicated to the Russian Government (“the Government”).
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, were living in the Chechen Republic. Their personal details are set out in the appended table. They are close relatives of individuals who disappeared after allegedly being unlawfully detained by servicemen during special operations. The events took place in areas under the full control of the Russian federal forces. The applicants have not seen their missing relatives alive since the alleged arrests.
5. The applicants reported the abductions to law‑enforcement bodies, and official investigations were opened. The proceedings were repeatedly suspended and resumed, and have remained pending for several years without any tangible results being achieved. The applicants lodged requests for information and assistance in their search for their relatives with the investigating authorities and various law-enforcement bodies. Their requests received either only formal responses or none at all. The perpetrators have not been identified by the investigating bodies.
6. Summaries of the facts in respect of each application are set out below. Each account is based on statements provided to both the Court and the domestic investigating authorities by the applicants and their relatives and/or neighbours. The Government did not dispute the principal facts of the cases, as presented by the applicants, but questioned the allegation that servicemen had been involved in the events.
A. Yandayeva and Khamayev v. Russia (no. 5374/07)
7. The first applicant is the mother of Mr Turpal-Ali Yandayev, who was born in 1982. The second applicant is the father of Mr Said-Ali Khamayev, who was born in 1984.
1. The disappearance of Mr Turpal-Ali Yandayev and Mr Said-Ali Khamayev and subsequent events
8. On the afternoon of 19 June 2003 Mr Turpal-Ali Yandayev, Mr Said‑Ali Khamayev and Mr Z.I. were on their way from the village of Tsa-Vedeno to the village of Serzhen-Yurt, Chechnya, when military servicemen stopped their Gazel vehicle at a checkpoint known as “SSG-4”, which was situated at the crossroads on the outskirts of the village of Elistanzhi. The servicemen ordered the men to get out of their car and then searched the vehicle. The search took place in the presence of numerous witnesses, who were passing through the checkpoint at the time. It is unclear what happened after the search. The whereabouts of Mr Yandayev, Mr Khamayev and Mr Z.I. have remained unknown ever since.
9. On the next day, 20 June 2003, the burnt-out wreck of the car of Mr Yandayev, Mr Khamayev and Mr Z.I. was found about 200 metres from the Benoy checkpoint, on the outskirts of Serzhen-Yurt. The checkpoint logbook had an entry which recorded the passage of the car through the checkpoint at 8 p.m. on 19 June 2003. Subsequently, the time was changed to 7 p.m. Servicemen manning the checkpoint told the applicants that at about 9 p.m. on 19 June 2003 they had seen something burning not far from the checkpoint.
10. On an unspecified date after the abduction, the second applicant learned from Colonel B., an officer at the Grozny remand prison, that Mr Yandayev, Mr Khamayev and Mr Z.I. had allegedly been detained at the main military base of the federal forces in Khankala, Chechnya for about six months, and then transferred to the Mozdok district of Chechnya. It is unclear whether the applicants submitted this information to the investigators.
2. Official investigation into the abduction
11. On 23 June 2003 the Shali district prosecutor in Chechnya opened criminal case no. 22096 under Article 126 of the Criminal Code (“the CC”) (abduction) into the events of 19 June 2003.
12. It appears that on the same day the investigators found and examined the burned-out remains of the Gazel vehicle. A plastic bottle containing a combustible mixture was found nearby. That evidence was not collected or added to the case-file.
13. On 24 June 2003 the investigators questioned Mr U.I., who stated that between 5 and 6 p.m. on 19 June 2003, as he had been passing a checkpoint on the Serzhen-Yurt road, he had seen a Gazel vehicle parked nearby. One man had been in the car and another had been speaking with a serviceman.
14. On various dates at the end of June 2003 the investigators questioned several traffic police officers who had been on duty at the Benoy checkpoint on the day of the incident. The copies of the records of their questioning submitted to the Court are illegible.
15. On 10 July 2003 the applicants were granted victim status in the criminal case.
16. On 23 August 2003 the investigation was suspended for failure to identify the perpetrators. Shortly thereafter the applicants lodged a request for the proceedings to be resumed, but on 28 August 2003 their request was refused.
17. On 1 September 2003 the investigators asked the Federal Security Service (“FSB”) whether the abducted persons had been detained by FSB officers. On 4 September 2003 the FSB replied in the negative.
18. On 7 June 2004 the supervising prosecutor overruled the decision of 23 August 2003 to suspend the investigation, noting various shortcomings in the investigation. He pointed out that the bottle containing a combustible mixture found near the burned car had not been collected and that the investigators had not identified a military unit stationed in the vicinity of Serzhen-Yurt that might have had information about the abducted persons.
19. On 10 July 2004 the investigators established that military unit no. 62372 had been stationed near Serzhen-Yurt at the relevant time. However, since 2003 the personnel making up that unit had been changed four times. Therefore, according to the investigators, it was impossible to find persons who could shed light on the circumstances of the abduction.
20. On 22 July 2004 the investigation was suspended.
21. On 5 May 2005 the first applicant asked the Shali district prosecutor to resume the proceedings.
22. On 16 December 2005 the prosecutor informed the first applicant that the investigation would be resumed “in the nearest future”.
23. On 28 March 2006 the Russian Justice Initiative, an NGO based in Moscow, on behalf of the first applicant, enquired about the progress of the investigation. The reply from the investigators of 21 April 2006 stated that operational-search activity was ongoing.
24. It appears that the investigation is still pending.
B. Saynaroyevy v. Russia (no. 7651/08)
25. The first applicant is the son of Mr Sultan Saynaroyev, who was born in 1925. The second applicant was the wife of Mr Sultan Saynaroyev. According to a letter addressed to the Court dated 4 July 2018 from the first applicant, the second applicant has died.
1. Abduction of Mr Sultan Saynaroyev
26. At the material time, Mr Sultan Saynaroyev lived in the village of Galashki, Ingushetia.
27. He was engaged in bee keeping and ran an apiary in a small area, known as “Berezhki”, located between the two neighbouring villages of Arshty and Galashki.
28. On the afternoon of 22 October 2002 Mr Sultan Saynaroyev left the apiary and was heading home to Galashki on foot when a group of forty-five to fifty armed servicemen in camouflage uniforms arrived in four armoured infantry carriers (“AICs”) without registration numbers. One of the vehicles carried a large label reading “Rossiya” (Россия). Speaking unaccented Russian, the servicemen stopped Mr Suleyman Saynaroyev and ordered him to go with them to a neighbouring apiary belonging to Mr M.O. The latter and his family members were in that apiary. The servicemen checked the identity documents of all those present and searched the premises. One of the servicemen, who was apparently in charge of the group, introduced himself as Sergey and said that he was from a military unit stationed in Arshty. After the search, the servicemen ordered Mr Sultan Saynaroyev to proceed with them to their headquarters for a further check, having assured him that the decision to apprehend him had been approved by the Arshty municipal administration. They put Mr Sultan Saynaroyev into one of the AICs and drove off in the direction of Chechnya. The abduction took place in the presence of several witnesses.
29. In the evening the first applicant spoke to the head of the Arshty police department, Mr A.Ts., who told him that a special sweeping-up operation was in progress in the village and that for that reason a large number of military servicemen were present in the village.
30. On 24 October 2002 the first applicant spoke to Mr A.M, deputy head of the Ingushetia Government. The latter said that he had had a telephone conversation with the military commander of the headquarters of the federal forces at the military base in Khankala, Chechnya, who had informed him that Mr Sultan Saynaroyev had been brought to the Khankala military base on 23 October 2002 and that he would soon be released.
31. The whereabouts of Mr Sultan Saynaroyev have remained unknown ever since.
2. Official investigation into the abduction
32. On 23 October 2002 the applicants lodged a complaint about the abduction with the authorities and asked that a criminal case be opened.
33. On 14 November 2002 the Sunzhenskiy district prosecutor in Ingushetia opened criminal case no. 22600057 under Article 126 of the CC (abduction).
34. The Government did not provide the Court with a copy of the investigation file. From the applicant’s submissions it appears that the investigation proceeded as follows.
35. On 20 November 2002 the Ingushetia Minister of the Interior informed the deputy head of the Ingushetia Government that the operational search activities conducted into the disappearance of Mr Sultan Saynaroyev showed that the latter had been abducted by unidentified military servicemen, who had taken him in a military vehicle in the direction of the Chechen Republic.
36. On an unspecified date the criminal case was forwarded to the military prosecutor’s office for further investigation.
37. On 29 November 2002 Colonel S.I., the commander of military unit no. 74814, reported, in particular, that Mr Sultan Saynaroyev had been detained on 22 October 2002 by servicemen of the Regional Operative Headquarters of the FSB in the North Caucasus (Региональный Оперативный Штаб ФСБ России по Северо‑Кавказскому региону).
38. On 25 December 2002 the military prosecutor’s office, referring to its lack of jurisdiction over the investigation, forwarded the criminal case to the Ingushetia prosecutor.
39. On 29 December 2002 the Ingushetia FSB informed the investigators that it had no information concerning Mr Sultan Saynaroyev’s whereabouts.
40. On 10 January 2003 the acting head of the criminal investigation department of the Ingushetia Ministry of the Interior reported to the investigators that on 29 November 2002 the United Group Alignment had confirmed that Mr Sultan Saynaroyev had been detained by servicemen of the FSB, but that the FSB in a letter of 3 January 2003 had denied any involvement in the incident.
41. On 14 March 2003 the investigation was suspended for failure to identify the perpetrators.
42. On 23 April 2003 the Deputy Minister of the Interior of Ingushetia informed the applicants that operational search activities had indicated that FSB servicemen had been involved in the abduction of Mr Sultan Saynaroyev.
43. On 4 September 2003 and again on 21 November 2003 the investigators informed the applicants that the proceedings in the criminal case had been resumed.
44. On 18 January 2006 the first applicant asked the investigators to inform him about the progress of the proceedings. A week later the investigators replied that the investigation had been suspended.
45. On 21 April 2006 and again on 27 September 2006 the first applicant enquired about the progress of the proceedings again. Apparently no reply was given to these two enquiries.
46. On numerous occasions between 2002 and 2007 the applicants complained to various State authorities and law-enforcement agencies about the abduction and requested assistance in the search for their relative. In reply they received letters stating that their requests had been forwarded to yet another State agency or that the law-enforcement authorities had no information concerning their relative’s whereabouts.
47. It appears that the investigation is still pending.
3. Proceedings against the investigators
48. On 27 February 2006 the first applicant lodged a complaint with the Sunzhenskiy District Court in Ingushetia challenging the investigators’ failure to take basic steps. On 13 March 2006 the court allowed the complaint and ordered that the investigation be resumed and a number of procedural steps taken.
C. Sultan Magomedov and Others v. Russia (no. 29910/08)
49. The applicants are close relatives of Mr Usman Magomadov, who was born in 1957. The first and the third applicants are his brothers, the fourth applicant is his wife, and the fifth, sixth and seventh applicants are his children.
50. The second applicant was Mr Usman Magomadov’s brother. He died on 2 December 2010. His widow, Ms Zakhra Magomadova, subsequently expressed her wish to pursue the application.
1. Abduction of Mr Usman Magomadov
51. On 28 March 2002 Mr Usman Magomadov left his home in the village of Mesker-Yurt and was driving to work in the town of Argun in his white Zhiguli car when a group of about four armed military servicemen in camouflage uniforms and balaclavas stopped him at checkpoint no. 136 on outskirts of Argun. They pulled Mr Usman Magomadov out of his car, forced him into one of the two APCs waiting nearby and drove off in the direction of the town.
52. The abduction was witnessed by several bystanders, including the fourth applicant and her relative, Ms E.D.
53. Ms E.D. asked one of the servicemen at the checkpoint where Mr Usman Magomadov was being taken. The serviceman replied that he was being taken to the Argun military commander’s office. She immediately took a taxi and followed the APCs until they reached the premises of the military commander’s office. Then the military vehicles turned in the direction of Khankala, where the main base of the Russian forces in Chechnya was located. Somewhere on the road the vehicles stopped. Ms E.D. got out of the taxi and was approaching them on foot when a Niva car pulled over. A serviceman, who appeared to be a military colonel, got out of the car and asked her what was happening. She explained the situation and he promised to help. Then he approached the APCs and spoke to the servicemen. After finishing the conversation, the colonel and the servicemen drove off to Khankala.
54. Several days later the driver of the Niva car informed Ms E.D. that Mr Usman Magomadov was detained in the Grozny department of the FSB.
55. The whereabouts of Mr Usman Magomadov remain unknown.
2. Official investigation into the abduction
56. Immediately after the abduction the applicants informed the authorities thereof and asked that a criminal case be opened.
57. On 30 April 2002 the Argun inter-district prosecutor opened criminal case no. 78051 under Article 126 of the CC (abduction).
58. The Government did not submit copies of the documents from the relevant criminal case file. Instead they submitted copies of documents from an unrelated case file.
59. According to the documents submitted by the applicants, the investigation proceeded as follows.
60. On 5 May 2002 the fourth applicant was granted victim status in the criminal case.
61. On 14 June 2002 Mr V.S., a police officer who had been manning the checkpoint on the day of the abduction, was questioned. He stated, in particular, that during the morning on that date thirty-five to forty military servicemen had arrived at the checkpoint in four APCs. From their conversation with each other he had understood that they had been looking for certain men in a white Zhiguli vehicle who had allegedly committed an armed attack on federal forces the day before.
62. On 20 June 2002 the crime scene was examined. The investigators did not find or collect any evidence.
63. On the same day they questioned Mr V.B., another police officer who had been manning the checkpoint on the day of the abduction. He had not witnessed the moment of the abduction; however, he confirmed the presence of armed military servicemen and four APCs at the checkpoint at the time of the events in question.
64. On 19 June 2003 the investigation was suspended for failure to identify the perpetrators. Subsequently, it was resumed several times – each time on the orders of (and following criticism by) the supervisors, and then suspended again. Specifically, the investigation was resumed on 25 December 2003, on unspecified dates in April and September 2004, and on 6 February and 5 June 2007. It was suspended on 5 February, 9 May and 9 October 2004 and 6 March and 10 July 2007.
65. In the meantime, on 19 May 2004, the fourth applicant requested the Chechen Governmental Committee for the Protection of the Constitutional Rights of Russian Citizens Living in the Chechen Republic (КомитетПравительстваЧеченскойРеспубликепообеспечениюконституционныхправгражданРоссийскойФедерациипроживающихнатерриторииЧеченскойРеспублики) to assist in the search for Mr Usman Magomadov. His request was forwarded to the investigators.
66. On 10 April 2006 the first applicant asked the Argun prosecutor to expedite the investigation into Usman Magomadov’s abduction. It appears that the requests were forwarded to the investigators and that the proceedings are still ongoing.
3. Proceedings against the investigators
67. On 1 December 2006 and 7 May and 22 November 2007 the fourth applicant lodged a complaint with the Shali District Court regarding her lack of access to the case file and the investigators’ failure to take basic steps.
68. On 8 February 2007 and 8 June and 14 December 2007 respectively the court allowed the complaint in part, ordering that access to the case file be granted.
D. Aduyeva v. Russia (no. 14688/09)
69. The applicant is the wife of Mr Alash Mugadiyev, who was born in 1956.
1. Abduction of Mr Alash Mugadiyev
70. On 1 February 2003 the Vostok special battalion conducted a special military operation in the village of Ersenoy, Chechnya. The servicemen cordoned off the settlement and ran identity checks in respect of all of its residents.
71. At about 8 a.m. on that date the applicant, Mr Alash Mugadiyev, their daughter, and their son-in-law were in their house in Ersenoy when a group of ten armed military servicemen in camouflage uniforms entered their household. The servicemen were unmasked, were of Slavic appearance and spoke unaccented Russian. They checked the identity papers of all the family members and informed them that they were going to detain Mr Alash Mugadiyev for three hours. The servicemen then took him to the outskirts of the village, where a convoy of military vehicles was waiting.
72. The applicant and her relative, Ms S.M, followed the servicemen and saw Mr Alash Mugadiyev being put into an UAZ (tabletka) minivan. The vehicle’s registration plate contained the figures 386 кх. On the same day two other residents of the village, Mr S.A. and Mr A.B., were detained by servicemen. Mr S.A. was put into the same vehicle as Mr Alash Mugadiyev.
73. At about midnight the special operation was completed and the servicemen left Ersenoy and drove to the settlement of Vedeno; they travelled in a large group of military vehicles, including several APCs, Ural military lorries and the UAZ minivan containing Mr Alash Mugadiyev and Mr S.A.
74. The applicant followed the servicemen to the settlement, where she met the commander of the Vostok special battalion, Mr Y.D., who confirmed that her husband and several other residents of Ersenoy had been detained by his battalion’s servicemen.
75. Mr S.A. and Mr A.B. were released later. Mr S.A. stated that following their detention on 1 February 2003, he and Mr Alash Mugadiyev had been taken to the Vedeno district military commander’s headquarters and had there been separated.
76. The whereabouts of Mr Alash Mugadiyev remain unknown.
2. Official investigation into the abduction
77. Immediately after the above-described events the applicant asked the authorities to open a criminal investigation into the abduction of her husband.
78. On 3 March 2003 the Vedeno district prosecutor’s office opened criminal case no. 24018 under Article 126 of the CC (abduction). The applicant was granted victim status in the case and questioned.
79. On 3 July 2003 the investigation in respect of the case was suspended, and then, on 18 November 2003, resumed again.
80. A week later the investigators examined the crime scene. No evidence was collected.
81. On 2 December 2003 the investigators asked the head of the Khankala military base whether a special operation had been carried out in the region between 29 January and 3 February 2003. It appears that no reply was given.
82. On 29 December 2003 the investigation was suspended for failure to identify the perpetrators.
83. On 19 February 2007 the applicant asked the head of the Chechen Parliament to assist in the search for her husband and to expedite the investigation. On 1 March 2007 the request was forwarded to the investigators, who resumed the proceedings on 31 March 2007.
84. On 10 April 2007 the investigators reported that one of the witnesses, Mr Y.D., had died in March 2003, and that he therefore could not be questioned.
85. On 14 April 2007 the applicant was questioned again. Her statements were similar to those submitted to the Court.
86. On 22 and 23 April 2007 the investigators questioned two relatives of Mr A.B. They submitted that he had been detained separately from Mr Alash Mugadiyev and had not met him.
87. On 30 April 2007 the investigation was suspended.
88. On 5 May 2007 the investigators questioned Mr V.T., who had been the military commander of the Vedeno District at the time of the abduction. He stated that owing to the amount of time that had elapsed he could not recall the events of early 2003.
89. On the same day the investigators established that the Vedeno district department of the interior had not had a vehicle with a registration plate containing the figures 386 кх.
90. On 25 February 2009 the applicant requested the investigators to transfer the criminal case for further investigation to a military investigations department. The request was refused on 20 March 2009.
91. It appears that the criminal proceedings are currently pending.
E. Tutayeva v. Russia (no. 22253/11)
92. The applicant is the mother of Mr Rasul Tutayev, who was born in 1981.
1. Abduction of Mr Rasul Tutayev
93. At about 8.40 p.m. on 22 October 2004 the applicant, Mr Rasul Tutayev, his wife (Ms R.A.), and three other family members were at home when two Gazel minivans arrived at their block of flats in Grozny. A group of about fifteen armed men in military uniforms broke into the applicant’s flat. All of the men, except two, were in balaclavas. The two men not wearing balaclavas were of Asian appearance. All of the men spoke unaccented Russian and had special military equipment, such as aiming lasers, blast shields and helmets.
94. After threatening the applicant and her family members with firearms, the men forced Mr Rasul Tatuyev outside, put him into one of the two minivans with the registration number 798ax95rus, and drove off.
95. The applicant, Ms R.A. and two of their neighbours, Ms Z.Ts. and Ms R.M., witnessed the men forcing Mr Rasul Tatuyev into the minivan and driving away. Ms R.A. ran after them and saw the vehicles enter the premises of one of the State authorities’ buildings in Grozny.
96. Mr Rasul Tutayev has not been seen since.
2. The applicant’s search for her son and the investigation into the abduction
97. On 23 October 2004 the applicant went to the Leninskiy district commander’s office in Grozny. The military commander, D., confirmed that Mr Rasul Tutayev was detained on those premises.
98. Immediately after the abduction the applicant complained to the authorities about her son’s detention and requested assistance in the search for her son.
99. Shortly thereafter the Leninskiy district prosecutor in Grozny asked the FSB and the police task force unit (OMON) about Mr Rasul Tutayev’s arrest. In late October 2004 the FSB and OMON replied that they had not detained him.
100. On 19 November 2004 the Leninskiy district prosecutor in Grozny opened criminal case no. 30136 under Article 126 of the CC (abduction).
101. Three days later the applicant was granted victim status in the case.
102. On 19 February 2005 the investigators suspended the proceedings for failure to identify the perpetrators.
103. On 30 March 2005 the investigation was resumed and joined with criminal case no. 40025, which had been opened in respect of the abduction on 26 January 2005 of Mr A.A. and which had allegedly been perpetrated by the same persons. A month later the investigators suspended the proceedings.
104. On 18 August 2006 the supervising prosecutor ordered that that the investigation be resumed.
105. On an unspecified date in September 2006, the investigators questioned Mr Rasul Tutayev’s wife. Her statements were similar to those submitted by the applicant to the Court.
106. On 7 September 2006 Mr Rasul Tutayev’s brother was granted victim status in the criminal case.
107. On 18 September 2006 the investigators suspended the proceedings.
108. On 11 July 2009 the applicant wrote to the Chechen President, asking him to ensure that there would be an effective investigation into the abduction of her son.
109. On various dates in 2010 the applicant contacted the Investigative Committee of Russia and the FSB, seeking their assistance in the search for her son. On 9 July 2010 the Russia Investigative Committee forwarded her complaint to the Chechnya Investigative Committee. On 2 September 2010 the FSB informed her that the whereabouts of Mr Rasul Tutayev were unknown to it.
110. On 3 December 2012 the applicant wrote to the Leninskiy district prosecutor in Grozny enquiring about the recent developments in the investigation.
111. On 22 May 2013, following the applicant’s repeated requests, the proceedings were resumed. Having sent several requests to various State bodies for information, the investigators suspended the proceedings on 24 June 2013. On 13 November 2013 that decision was declared unlawful by a higher investigating authority and ill-founded on account of the investigators’ failure to establish the identity of the owner of the vehicle with the registration number 798ax95rus. Six days later the investigation was resumed. It was again suspended on 19 December 2013, then resumed on 19 August 2014, and again suspended on 19 September 2014.
112. It appears that the proceedings are still pending.
F. Konchiyeva and Others v. Russia (no. 31280/11)
113. The first applicant is the sister of Mr Askhab Konchiyev, who was born in 1973. The third applicant is his brother.
114. The second applicant was also a brother of Mr Askhab Konchiyev. He died on 16 January 2016, after lodging the application with the Court.
1. Abduction of Mr Askhab Konchiyev
115. On 18 July 2002 Russian military forces in Chechnya conducted a special sweeping-up operation in the village of Serzhen-Yurt. The servicemen cordoned off the settlement and ran identity checks on all the residents.
116. At around 12 a.m. on that day (in the documents submitted the time was also given as 9 a.m.) a group of armed servicemen in balaclavas and camouflage uniforms arrived at the applicants’ house in Serzhen-Yurt in four APCs and one UAZ vehicle with no registration numbers. The servicemen broke into the house and searched the premises. They then forced Mr Askhab Konchiyev into one of the APCs and took him to an unknown destination.
117. The abduction took place in the presence of several witnesses, including the applicants and their neighbours.
2. Official investigation into the abduction
118. On various dates between July 2002 and February 2003 the first applicant lodged a complaint regarding the abduction with the South Federal Circuit prosecutor. On 6 February 2003 her complaint was forwarded to the Chechnya prosecutor’s office, and then to the Shali district prosecutor. On 27 February 2003 the latter opened criminal case no. 22042 under Article 126 of the CC (abduction) and granted the first applicant victim status in that case.
119. On 27 April 2003 the investigation was suspended for failure to identify the perpetrators. It is not clear whether the applicants were informed of the suspension.
120. On 15 June 2006 the first applicant asked the deputy head of the Chechen Parliament to assist in the search for her brother.
121. On 26 July 2006 the investigators resumed the proceedings and sent a number of requests to various authorities, including the federal military forces, for it to be established whether Mr Askhab Konchiyev had been arrested and placed in custody. The replies were all in the negative, none of the authorities had any information about his detention.
122. On 10 August 2006 the investigators questioned the first applicant, who confirmed the account of the events described above, and who also stated that an acquaintance of hers had seen footage of Mr Askhab Konchiyev’s arrest broadcast on a federal television channel in November 2005.
123. On 26 August 2006 the investigators suspended the proceedings.
124. On 5 May 2010 the first applicant requested the investigators to provide her with access to the investigation file. Her request was refused on 14 May 2010.
125. On 9 June 2010 the first applicant requested the investigators to resume the proceedings and to ensure that there would be a thorough investigation into the abduction. Her request was refused on 21 June 2010; nevertheless, on 2 September 2010 the proceedings were resumed.
126. On 29 September 2010 the investigators questioned a person from the village, who stated that in summer 2003 the federal forces had conducted a special sweeping-up operation in Serzhen-Yurt. The servicemen had not had any distinctive features on their uniforms, and some of them had been in balaclavas. He had not seen the arrest of Mr Askhab Konchiyev, but had heard about it from other residents of the village.
127. On 2 October 2010 the investigation was suspended for failure to identify the perpetrators.
128. On 18 July 2011 the first applicant enquired about the progress of the investigation. In September 2011 she was informed that the proceedings had been suspended.
129. On 28 September 2011 the investigators resumed the proceedings. In October 2011 they questioned Mr Askhab Konchiyev’s nephew, who had witnessed the abduction and who gave statements similar to those given by the applicants.
130. On 28 October 2011 the investigators ordered that a DNA test be performed in order to verify whether Mr Askhab Konchiyev’s body was among unidentified remains found in the region. The outcome of the expert examination is unknown.
131. It appears that the proceedings in the case are still pending.
3. Proceedings against the investigators
132. On 20 August 2010 the first applicant lodged a complaint with the Shali Town Court challenging the investigators’ failure to take basic investigative steps.
133. On 7 September 2010 the court rejected her complaint, having found that on 2 September 2010 the investigation had been resumed. On 22 December 2010 the Supreme Court of the Chechen Republic upheld the decision on appeal.
G. Temersultanova and Others v. Russia (no. 41884/11)
134. The first applicant is the wife of Mr Yusup Mezhiyev, who was born in 1973. The second applicant is his son and the third applicant is his brother.
1. Abduction of Mr Yusup Mezhiyev and subsequent events
135. On the morning of 23 June 2002 Mr Yusup Mezhiyev and his acquaintances, Mr K.A., Mr B.A., Ms B.A. and Ms A.A., left their homes in the village of Staryye Atagi and went to work in Grozny. At about 8.30 a.m. a group of military servicemen stopped their car at checkpoint no. 33 in the Oktyabrskiy district in Grozny. Having checked their identity documents, the servicemen handcuffed and blindfolded Mr Yusup Mezhiyev. Then they forced him into an UAZ minivan parked nearby and drove off in the direction of the Oktyabrskiy district temporary police department in Grozny (ВОВД Октябрьского района г. Грозный). The abduction took place in the presence of several witnesses.
136. The whereabouts of Mr Yusup Mezhiyev remain unknown.
2. Official investigation into the abduction
137. Immediately after the abduction the applicants informed the authorities thereof and requested that criminal proceedings be initiated.
138. On the same day investigators from the Grozny town prosecutor’s office arrived at checkpoint no. 33. There they met FSB officers, who declined to provide any information concerning Mr Yusup Mezhiyev’s detention. The FSB officers noted that they were involved in a special operation, and that they were not subordinates of the prosecutor’s office.
139. On 5 July 2002 the Grozny town prosecutor opened criminal case no. 52075 under Article 126 of the CC (abduction).
140. On 20 July, and again on 7 and 9 August 2002 the investigators questioned several police officers who had been manning checkpoint no. 33 at the time of the events in question. They stated that on 22 June 2002 the FSB officers had arrived at the checkpoint in order to undertake a special operation. On the morning of 23 June 2002 they searched cars passing through the checkpoint. None of the officers questioned had information about the abduction. The checkpoint had also been manned by OMON officers. Several of them were also questioned by the investigators, but none of them had witnessed the arrest of Mr Yusup Mezhiyev.
141. On 24 July 2002 the third applicant was granted victim status.
142. On 20 August 2002 the investigators questioned Ms A.A. Her account of the events was similar to the applicants’ submission before the Court.
143. On 5 September 2002 the investigation was suspended for failure to identify the perpetrators. Following criticism by the supervisors it was subsequently resumed on 22 May 2003.
144. On 14 August 2003 Mr B.A was questioned. His statement was similar to those of the applicants and Ms A.A. He also stated that immediately after Mr Yusup Mezhiyev’s detention he had asked a police officer at the checkpoint about the people who had carried out the arrest. He had been told that Mr Yusup Mezhiyev had been arrested by the FSB officers.
145. On 25 August 2003 the FSB replied to an enquiry lodged by the investigators, stating that Mr Yusup Mezhiyev had never been detained by its agents.
146. Subsequently, the proceedings were suspended on 30 August and 28 November 2003, 21 November 2004, 7 August 2005, and 7 February and 28 May 2011, and resumed on 28 October 2003, 21 October 2004, 7 July 2005, and 26 January and 18 May 2011 respectively.
147. In the meantime, in November 2003 the investigators questioned the officers who had visited the checkpoint on the date of the abduction. They stated that the FSB officers at the checkpoint had refused to answer any questions. All of them, except one, had been in balaclavas. They had arrived at the checkpoint in an UAZ minivan.
148. A year later, in November 2004, several other police officers from the checkpoint were questioned. All of them confirmed the presence of the FSB officers at the crime scene, but none of them could say whether Mr Yusup Mezhiyev had been detained. Their duty station had been located too far from the FSB officers for them to be able to make out the details of what had happened.
149. On various dates between 2006 and 2010 the applicants lodged several requests for information with the investigators, asking them to expedite the proceedings. On 20 April 2010 the first applicant requested that she be granted victim status in the criminal case in order for her to be able to access the case file.
150. On 25 May 2010 the first applicant was granted victim status and questioned by the investigators. It is not clear whether she obtained permission to access the case file.
151. On 11 July 2005 the investigators asked the head of the OMON forces to provide them with a list of the officers who had been manning checkpoint no. 33 at the time of the incident, but to no avail – the OMON head refused the request on 27 July 2005, citing the confidentiality of the information sought.
152. It appears that the investigation is still pending.
3. Proceedings against the investigators
153. On 28 December 2010 the applicants lodged a complaint with the Oktyabrskiy District Court in Grozny challenging the investigators’ failure to take basic steps.
154. On an unspecified day in late January 2011 (the date is illegible) the court rejected the complaint on the grounds that on 26 January 2011 the criminal investigation had been resumed.
H. Akhilgovy v. Russia (no. 52051/11)
155. The applicants are the parents of MrLom-AliAkhilgov, who was born in 1986.
1. Abduction of Mr Lom-Ali Akhilgov
156. At the material time the “Zapad” unit of the United Military Alignment (“the UGA”) was stationed in the town of Urus-Martan, about one kilometre from the applicants’ house, situated in the vicinity of a bridge. The area was under curfew; checkpoints had been erected on all roads leading to and from the town.
157. On 8 January 2003 the applicants and their sons, Lom-Ali and Magomed, were at home. At about 3 a.m. a group of armed servicemen in camouflage uniforms arrived in the neighbourhood in several vehicles, including an APC, an Ural lorry and an UAZ minivan. Some of them were in balaclavas. The soldiers, who spoke unaccented Russian, broke into the applicants’ house, pointed their guns at the first applicant and took Mr Lom‑Ali outside. They told the second applicant that she would find her son on the following day at the Zavodskoy district department of the interior in Grozny (“the Zavodskoy ROVD”). Then they walked out onto the street with the applicant’s son and headed in the direction of the UGA headquarters; they dragged him over the bridge and then put him in the UAZ minivan. According to the applicants’ neighbours, another group of soldiers, numbering about twenty, was waiting for the first group at a point about 300 metres from the applicants’ house.
158. The whereabouts of Mr Lom-Ali Akhilgov remain unknown.
2. Official investigation into the abduction
159. On the morning of 8 January 2003 the applicants went to the Zavodskoy ROVD, looking for their son. The police denied that he had been arrested or detained on their premises. On 10 January 2003 the applicants complained about the abduction to the Urus‑Martan district prosecutor.
160. On 13 January 2012 investigators from the prosecutor’s office questioned Mr Lom-Ali Akhilgov’s brother, an eyewitness to the abduction, who confirmed the account of the events given by the applicants.
161. On 30 January 2003 the Urus-Martan district prosecutor opened criminal case no. 34009 (in the documents submitted also referred as no. 63044) under Article 126 of the CC (abduction).
162. On 30 March 2003 the investigation in respect of the criminal case was suspended for failure to identify the perpetrators. It appears that the applicants were not informed thereof. Between 2005 and 2006 they requested information about the progress of the proceedings, but to no avail.
163. On 12 June 2007 the investigators questioned the applicants. They gave statements similar to those that they had submitted to the Court.
164. On 9 July 2009 the first applicant lodged a complaint with the Achkhoy-Martan inter-district prosecutor, alleging that the investigation of his son’s abduction by federal servicemen had been ineffective and requesting that the authorities grant him victim status in the criminal case and inform him about progress in the proceedings. On 20 July 2009 the investigators replied that the investigation had been resumed for failure to take basic steps, such as questioning the witnesses to the abduction and undertaking an examination of the crime scene.
165. On 28 July 2009 the first applicant was granted victim status in the criminal case.
166. On 7 August 2009 the investigators questioned Mr S.A., the applicants’ neighbour. He had seen the abduction from his house. According to him, the abduction had followed the scenario typically followed by the federal forces, who usually left their military vehicles at some distance, detained a person and then returned to their vehicles.
167. Several days later the investigators sent requests to various authorities for them to establish Mr Lom-Ali Akhilgov’s whereabouts. It appears that no positive answers were received.
168. On 20 August 2009 the investigation was suspended for failure to identify the perpetrators.
169. On 3 September 2009 the first applicant lodged a complaint with the head of the Achkhoy-Martan inter-district investigations department, stating that the investigation had been ineffective and asking to be allowed to review the case file.
170. On 15 September 2009 the investigators replied to the applicant, stating that he had the right to access only those documents which related to the investigative steps taken with his participation.
171. Subsequently, the investigation was resumed on 19 May and 29 June 2011, and then suspended on 29 May and 29 July 2011 respectively.
172. It appears that the investigation is still pending.
3. Proceedings against the investigators
173. On 18 November 2009 the first applicant lodged a complaint with the Achkhoy-Martan District Court alleging that the investigation had been ineffective and requesting the court to order the investigators to resume the proceedings and allow him to review the case file. On 11 December 2009 the court allowed the complaint, stating that for more than six years the investigation had been unlawfully suspended and that the applicant was entitled to review the entire contents of the case file.
174. On 11 November 2010 the first applicant again lodged a complaint with the Achkhoy-Martan District Court stating that the investigation had been ineffective. On 20 May 2011 the court dismissed the applicant’s complaint, stating that the investigation had been resumed on 19 May 2011. On 15 June 2011 this decision was upheld on appeal by the Chechnya Supreme Court.
I. Talkhigova and Others v. Russia (no. 66830/11)
175. The first and fourth applicants are the adoptive parents of Mr Isa Zilbukharov, who was born in 1975.
176. The second and third applicants are, respectively, the grandmother and the mother of Mr Ruslan Zilbukharov, who was born in 1979.
177. The fifth, sixth and seventh applicants are, respectively, the daughter, the son and the wife of Mr Aslan Tsurayev, who was born in 1972 (in the documents submitted the year of birth was also referred to as 1970). On 10 July 2018 the applicants informed the Court that the fifth applicant, Ms Amina Tsurayeva, changed her surname to Bogatyreva on 22 August 2016.
178. The eighth, ninth and tenth applicants are the children of Mr Cha‑Borz (also spelled as Chaborz) Ibragimov, who was born in 1975. The thirteenth applicant is his brother.
179. The eleventh and twelfth applicants are, respectively, the son and the wife of Mr Sharpuddi Altamirov, who was born in 1964.
1. Abduction of the applicants’ relatives
180. On 3 November 2003 a temporary military checkpoint was set up at a crossroads on the highway between the villages of Shalazhi and Gekhi‑Chu. Military servicemen conducted checks of passing vehicles and passengers.
181. At about 6 p.m. (in the documents submitted the time was also given as 8 p.m.) on 3 November 2003 Mr Ruslan Zilbukharov, Mr Isa Zilbukharov, Mr Aslan Tsurayev and Mr A.D. were driving in a car through the checkpoint, when a group of twenty to twenty-five armed military servicemen stopped them for an identity check. The servicemen were wearing camouflage uniforms and spoke unaccented Russian. Having checked the documents, the servicemen forced Mr Ruslan Zilbukharov, Mr Isa Zilbukharov and Mr Aslan Tsurayev into a GAZ-66 vehicle parked nearby.
182. Mr A.D., who witnessed the events, asked one of the servicemen where the three men were being taken. The serviceman replied that they were taken to a police station.
183. Meanwhile, Mr Sharpuddi Altamirov and Mr Cha-Borz Ibragimov were passing through the same checkpoint. The servicemen also stopped them for an identity check. They forced them into the GAZ-66 vehicle into which Mr Ruslan Zilbukharov, Mr Isa Zilbukharov and Mr Aslan Tsurayev had already been put, and drove off in the direction of Gekhi-Chu.
184. The whereabouts of the applicants’ relatives remain unknown.
2. Official investigation into the abduction
185. Immediately after the abduction the applicants informed the authorities thereof and asked that a criminal case be opened.
186. On 20 November 2003 the Urus-Martan district prosecutor opened criminal case no. 34118 under Article 126 of the CC (abduction).
187. The Government provided the Court with a copy of criminal case file no. 34118, which was opened on 21 December 2004 in respect of the finding of three corpses on a road leading to the village of Zebir-Yurt, Chechnya. Apparently that case is unrelated to the investigation into the abduction of the applicants’ relatives.
188. On 5 December and 19 December 2003, 9 January 2004, 25 July 2005 and 15 June 2010 the seventh, eighth, twelfth, fourth and third applicants, respectively, were granted victim status and questioned.
189. The investigation was suspended and resumed on several occasions, including 23 May 2008, 2 March 2009 and 16 June 2010, when it was each time suspended. It is unclear whether the applicants were informed thereof.
190. On 27 October 2008 the twelfth applicant asked the investigators to grant her permission to access the contents of the investigation file and to resume the investigation. Her request was refused.
191. On an unspecified date in April 2011 (the exact date is illegible) the investigators informed the fourth applicant that proceedings in the case had been suspended and that operational search activities were underway in order to establish the whereabouts of his missing relative.
192. It appears that the investigation is still pending.
3. Proceedings against the investigators
193. On 12 November 2008 the twelfth applicant lodged a complaint with the Achkhoy-Martan District Court challenging her lack of access to the investigation file and the investigators’ failure to take basic steps.
194. On 13 January 2009 the court allowed her complaint in part and ordered that the investigation in respect of the case be resumed. However, it ruled lawful her lack of access to the investigation file.
J. Dishnayeva and Others v. Russia (no. 851/12)
195. The first applicant is the mother of Mr Abdul-Malik Dishnayev, who was born in 1970, and his brother, Mr Abdul Dishnayev, who was born in 1974. The second and third applicants are their sisters. The fourth applicant is the father of Mr Timerlan Akhmadov, who was born in 1980.
1. Abduction of the Dishnayev brothers and Mr Timerlan Akhmadov
196. On 9 March 2003 Mr Abdul-Malik Dishnayev, Mr Abdul Dishnayev and their acquaintance, Mr Timerlan Akhmadov, arrived in Grozny and stayed at the second and third applicants’ house.
197. At about 2 a.m. on 10 March 2003 a large group of 120 to 130 armed servicemen in camouflage uniforms arrived at the applicants’ house in an APC, Ural lorries and UAZ-452 vehicles. A group of ten servicemen broke into the house and searched the premises. They spoke unaccented Russian and were of Slavic appearance; some of them were equipped with portable radio devices. The servicemen forced the Dishnayev brothers and Mr Timerlan Akhmadov outside, put them into the vehicles and drove off to an unknown destination.
198. The whereabouts of the applicants’ relatives remain unknown.
2. Official investigation into the abduction
199. On 10 March 2003 the second applicant complained to the authorities about the abduction.
200. Three days later the Leninskiy district prosecutor in Grozny opened criminal case no. 20050 under Article 126 of the CC (abduction).
201. On 30 April 2003 the third applicant was granted victim status in the criminal case. On the same date she and the second applicant were questioned as witnesses; they confirmed the circumstances of the abduction, as described above.
202. On 17 and 27 May 2003 the investigators questioned Mr Kh.G., the applicants’ neighbour, and Mr B.Kh., a police officer who worked at a checkpoint in the vicinity of the applicants’ village. Mr Kh.G. stated that on the night of the abduction he had heard military vehicles passing by and the next morning had learned of the abduction of village residents. Mr B.Kh. confirmed that at that time a motorcade of military vehicles had passed through the checkpoint. The next morning three women from the village had come to the checkpoint, asking for assistance in the search for three abducted relatives. Mr B.Kh. had advised them to contact the police.
203. On 13 June 2003 the investigation in respect of the case was suspended for failure to identify the perpetrators.
204. In 2004 the investigators sent a number of requests to the domestic authorities, including military units and detention facilities, in an effort to establish the whereabouts of the Dishnayev brothers and Mr Timerlan Akhmadov, but to no avail – no replies in the positive were received.
205. On 5 May 2005 the first applicant lodged an application with the Chechen Governmental Committee for the Protection of Constitutional rights of Russian Citizens Residing in the Chechen Republic, asking it to provide her with assistance in her search for her sons. On 20 May 2005 she was informed that the proceedings had been suspended.
206. In early 2006 the first and the fourth applicants wrote to the head of the Chechnya Parliament, asking him to assist in the search for their abducted relatives. Their letters were forwarded to the Chechnya Ministry of the Interior. On 21 June 2006 the applicants were informed that criminal proceedings were pending.
207. On 25 July 2006 the investigation was resumed and the applicants’ were informed thereof.
208. On 1 September 2006 the investigators suspended the proceedings again, but on 7 December 2006 that decision was overruled as unfounded. The supervising authorities instructed the investigators to question witnesses to the abduction.
209. On 19 and 20 December 2006 the investigators questioned several relatives of the abducted persons. Their statements were similar to the account submitted by the applicants to the Court.
210. On 30 December 2006 the proceedings were suspended.
211. On an unspecified date, apparently in 2008, the first, second and third applicants complained to Chechnya prosecutor’s office about the abduction and requested assistance in the search for their relatives. On 10 October 2008 the proceedings were resumed.
212. On 10 November 2008 the first applicant was granted victim status in the criminal case. Two days later the proceedings were suspended again.
213. On 19 March and 16 April 2010 the applicants were informed that the criminal case had been transferred to the special cases department of the investigations committee at the Chechnya prosecutor’s office (отдел по рассмотрению особо важных дел Следственного Управления Следственного Комитета при прокуратуре РФ по Чеченской Республике) for further investigation and that operational search activities were in progress.
214. It appears that the investigation is still pending.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS
215. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012).
THE LAW
I. JOINDER OF THE APPLICATIONS
216. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
II. LOCUS STANDI
217. The Court notes that the second applicant in Sultan Magomedov and Others v. Russia (no. 29910/08), Mr Alash Magomedov, died on 2 December 2010 after the case had been communicated to the Government, and that his widow, Ms Zakhra Magomadova, expressed her wish to pursue the application in his stead (see paragraph 50 above). The Government made no objections in that regard and left the issue to the Court’s discretion.
218. 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, §§ 381-386). Having regard to the subject matter of the application and all the information in its possession, the Court considers that the widow of the second applicant, Ms Zakhra Magomadova, has a legitimate interest in pursuing the application and that she thus has the requisite locus standiunder Article 34 of the Convention.
III. COMPLIANCE WITH THE SIX-MONTH RULE
A. The parties’ submissions
1. The Government
219. 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 investigation, or more than six months after the most recent decision of the investigators. They also pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities for a significant amount of time. Therefore, according to the Government, the applications should be declared inadmissible as having been brought “out of time”.
2. The applicants
220. 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 search for their missing relatives and to assist the authorities in the proceedings. They submitted that there had been no excessive or unexplained delays in 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 were inevitable. Owing to their lack of legal knowledge and financial means with which to hire a lawyer, and in the absence of any domestic provisions for free legal assistance to victims of enforced disappearances, they had been unable to assess the effectiveness of the investigations. It had been only with the passage of time and the lack of information from the investigating authorities that they had begun to doubt the effectiveness of the investigation and had started looking for free legal assistance in order 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
221. 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, 9 October 2014.
2. Application of the principles to the present case
222. Turning to the circumstances of the cases, the Court notes that in respect of 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).
223. In each of the applications, save for Konchiyeva and Others v. Russia (no. 31280/11), the applicants informed the authorities of the abductions either immediately after the respective incident, or shortly thereafter. In Konchiyeva and Others v. Russia (no. 31280/11) the exact date of the first complaint of abduction is unclear, but formally it was lodged in early 2003 – that is to say about six months after the incident in question (see paragraph 118 above).
224. The authorities opened a criminal investigation into each of the applicants’ complaints of abduction; in each case, the investigation was still pending when the applications were lodged with the Court (see paragraphs 24, 47, 66, 91, 112, 131, 152, 172, 192 and 214 above).
225. The Court notes in each of the cases at hand that the investigation was repeatedly suspended and resumed throughout the periods concerned – each time it was suspended and then resumed following criticism from the supervisors’, and that there were certain lulls during the proceedings. The most significant periods of inactivity were the following.
226. In the case of Yandayeva and Khamayev v. Russia (no. 5374/07) the investigation was suspended on 22 July 2004 and remained suspended at the time of the lodging of the application with the Court. However, during that period the applicants and the NGO Russian Justice Initiative contacted the investigators asking that the proceedings be resumed (see paragraphs 20 and 23 above).
227. In the case of Saynaroyevy v. Russia (no. 7651/08) on 21 November 2003 the applicants were informed that the proceedings had been resumed. For more than two years there was no information about further developments, until January 2006, when the applicants enquired about the course of the investigation and learned that the proceedings had been suspended (see paragraphs 43 and 44 above).
228. In the case of Sultan Magomedov and Others v. Russia (no. 29910/08) the investigation was dormant between 9 October 2004 and 6 February 2007; however in the meantime the first applicant contacted the authorities, asking for assistance in the search for Mr Usman Magomadov (see paragraphs 65 and 66 above).
229. In the case of Aduyeva v. Russia (no. 14688/09) the proceedings were suspended for more than three years, between 29 December 2003 and 31 March 2007. During that period of inactivity on the part of the investigators the applicant sought the resumption of the criminal investigation (see paragraph 83 above).
230. In the case of Tutayeva v. Russia (no. 22253/11) the investigation was dormant for a considerable amount of time – between 18 September 2006 and 22 May 2013. However, the applicant did not remain passive, but contacted various authorities, enquiring about any recent developments in the investigation on several occasions (in 2009, 2010, and 2012) and asking for assistance in the search for her son (see paragraphs 107-111 above).
231. In the case of Konchiyeva and Others v. Russia (no. 31280/11) the Court observes that the criminal proceedings were initiated in February 2003, whereas the abduction took place in July 2002. According to the applicants, they lodged a complaint with the authorities in person and in writing, shortly after the incident. The Government did not contest that submission (see paragraphs 115 and 118 above). Furthermore, the Court observes that the investigation initiated in respect of the abduction was suspended from 27 April 2003 until 26 July 2006, and from 26 August 2006 until 2 September 2010. During both periods the applicants were in regular contact with the authorities, seeking information about the investigation (see paragraphs 119‑125 above).
232. In the case of Temersultanova and Others v. Russia (no. 41884/11) the investigation was suspended on 7 August 2005. It appears that no actions were taken until 20 April 2010, when the applicant applied for victim status in the criminal case (see paragraphs 146 and 149 above).
233. In the case of Akhilgovy v. Russia (no. 52051/11) the proceedings remained dormant between 30 March 2003 and 12 June 2007, but the applicants sought information about the investigation (see paragraphs 162 and 163 above).
234. In the case of Talkhigova and Others v. Russia (no. 66830/11) there were no significant periods during which the investigators were inactive, and the applicants maintained regular contact with the authorities (see paragraphs 188, 190 and 191 above).
235. Lastly, in the case of Dishnayeva and Others v. Russia (no. 851/12) the proceedings were suspended from 13 June 2003 until 25 July 2006. Later they were suspended on 12 November 2008, and apparently were not resumed before the applicants lodged their application with the Court on 14 December 2011. During both periods the applicants contacted various authorities, seeking their assistance in their search for their abducted relatives, and maintained contact with the investigators (see paragraphs 203-207 and 212 above).
236. Taking into account the fact that the overall timeframe for lodging the applications did not exceed ten years and that the abduction complaints were lodged with the investigating authorities without undue delay, as well as the fact that the applicants tried to have the dormant proceedings resumed, and given the complexity of the cases and the nature of the alleged violations, 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 that arose in the proceedings cannot therefore be held against them or interpreted as constituting a failure on their part to comply with the six-month requirement. (See by contrast, Doshuyeva and Yusupov v. Russia (dec.), 58055/10, §§ 41-47, 31 May 2016, where the applicants delayed lodging a formal complaint with the domestic authorities, and did not contact the investigating authorities for about eight years and three months, while the investigation lay seemingly dormant).
237. The Court therefore concludes that the investigations in respect of the cases at hand, albeit sporadic, were conducted during the periods in question and that it is satisfied with the explanations submitted (see Varnava and Others, cited above). Accordingly, the applicants complied with the six-month rule.
IV. COMPLIANCE WITH THE EXHAUSTION RULE
A. The parties’ submissions
1. Government
238. The Government argued that it had been open to the applicants to challenge in court any actions or omissions on the part of the investigating authorities and to raise the issue of the effectiveness of the investigation, but that the applicants in the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Temersultanova and Others v. Russia (no. 41884/11), Talkhigova and Others v. Russia (no. 66830/11) and Dishnayeva and Others v. Russia (no. 851/12) had failed to do so. Accordingly, they had not exhausted the available domestic remedies.
2. The applicants
239. The applicants argued that lodging complaints against the investigators would not have remedied the shortcomings in the proceedings. They submitted that the only effective remedy – a criminal investigation – had proved to be ineffective.
B. The Court’s assessment
240. The Court has already concluded that the ineffective investigation of disappearances that have 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 v. Russia, nos. 2944/06 and 4 others, § 217, 18 December 2012). 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 Others v. Russia, nos. 3340/08 and 24689/10, § 79, 22 November 2016).
V. ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
1. The Government
241. The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on mere 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
242. The applicants submitted that it had been established “beyond reasonable doubt” that the men who had taken their relatives had been State agents. In support of that assertion, they referred to evidence contained in their submissions and documents from the criminal investigation files disclosed by the Government. They also submitted that they had each made a prima facie case that their relatives had been abducted by State agents, and that the essential facts underlying their complaints had not been challenged by the Government. Given the lack of any 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
243. 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
244. Turning to the circumstances of the cases presently before it, and in view of all the material (including the copies of the documents from the relevant criminal case files 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 that were under State control.
245. In the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Sultan Magomedov and Others v. Russia (no. 29910/08), Temersultanova and Others v. Russia (no. 41884/11), and Talkhigova and Others v. Russia (no. 66830/11) the applicants were abducted after having been stopped at checkpoints in the presence of many witnesses (see paragraphs 8, 52, 135 and 181 above). Moreover, in the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Sultan Magomedov and Others v. Russia (no. 29910/08), and Talkhigova and Others v. Russia (no. 66830/11) the applicants learned from State agents that after the abductions in question their missing relatives had been arrested and placed in custody (see paragraphs 10, 54 and 182 above). In the cases of Temersultanova and Others v. Russia (no. 41884/11) and Talkhigova and Others v. Russia (no. 66830/11) the abducted persons were forced at checkpoints into vehicles and then driven off to unknown destinations (see paragraphs 135 and 183 above).
246. In the case of Saynaroyevy v. Russia (no. 7651/08) Mr Sultan Saynaroyev was detained by a large group of armed servicemen in camouflage uniforms, who arrived in four AICs, one of which bore a large label reading “Rossiya” (Россия). The abductors spoke Russian. The leader of the group said that he was from a military unit stationed in Arshty and stated that the decision to apprehend Mr Saynaroyev had been approved by the local administration (see paragraph 28 above).
247. In the cases of Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Konchiyeva and Others v. Russia (no. 31280/11), Akhilgovy v. Russia (no. 52051/11), and Dishnayeva and Others v. Russia (no. 851/12) armed abductors in camouflage uniforms entered the applicants’ households (see paragraphs 71, 93, 116, 157, and 197 above). In the cases of Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Akhilgovy v. Russia (no. 52051/11), and Dishnayeva and Others v. Russia (no. 851/12) the applicants noted that the intruders had spoken unaccented Russian (see paragraphs 71, 93, 157, and 197 above). In the cases of Aduyeva v. Russia (no. 14688/09), Konchiyeva and Others v. Russia (no. 31280/11), Akhilgovy v. Russia (no. 52051/11), and Dishnayeva and Others v. Russia (no. 851/12) the intruders arrived in military vehicles (see paragraphs 71, 116, 157, and 197 above). Moreover, in the case of Tutayeva v. Russia (no. 22253/11) they used special military equipment, such as aiming lasers, blast shields and helmets; and after the abduction they brought a relative of the applicant to the premises of one of the State authorities’ buildings in Grozny (see paragraphs 93 and 95 above).
248. The Court notes that in the cases at hand, the investigating authorities themselves accepted as fact the primary versions of events presented by the applicants and took steps to verify whether State servicemen had been indeed involved therein by sending requests for information to the relevant authorities.
249. In their submission to the Court, the Government did not provide a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.
250. 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. Given the lack of any news of them since their detention and given the life‑threatening nature thereof, Mr Turpal-Ali Yandayev, Mr Said-Ali Khamayev, Mr Sultan Saynaroyev, Mr Usman Magomadov, Mr Alash Mugadiyev, Mr Rasul Tutayev, Mr Askhab Konchiyev, Mr Yusup Mezhiyev, MrLom-AliAkhilgov, Mr Isa Zilbukharov, Mr Ruslan Zilbukharov, Mr Aslan Tsurayev, Mr Cha-Borz Ibragimov, Mr Sharpuddi Altamirov, Mr Timerlan Akhmadov, Mr Abdul‑Malik Dishnayev and Mr Abdul Dishnayev may be presumed dead following their unacknowledged detention.
VI. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
251. 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
252. In the cases of Akhilgovy v. Russia (no. 52051/11), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), and Konchiyeva and Others v. Russia (no. 31280/11) the Government contended that Article 2 of the Convention was inapplicable to the applicants’ complaints of abductions, which had to be examined under Article 5 of the Convention. To this end they referred to the case of Kurt v. Turkey (25 May 1998, §§ 101‑09, Reports of Judgments and Decisions 1998‑III).
253. In the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Sultan Magomedov and Others v. Russia (no. 29910/08), Temersultanova and Others v. Russia (no. 41884/11), Akhilgovy v. Russia (no. 52051/11), Talkhigova and Others v. Russia (no. 66830/11), and Dishnayeva and Others v. Russia (no. 851/12) 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 servicemen. Furthermore, the Government argued that the domestic investigation had obtained no evidence that the applicants’ relatives had been held under State control or that they had been killed.
254. In the cases of Akhilgovy v. Russia (no. 52051/11), Aduyeva v. Russia (no. 14688/09), Konchiyeva and Others v. Russia (no. 31280/11), and Tutayeva v. Russia (no. 22253/11) 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 claimed that all necessary steps had been taken to comply with the positive obligation under Article 2 of the Convention.
255. 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, they noted that in breach of Articles 34 and 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
256. 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
257. 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.
258. 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 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).
259. 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 is inconsistent. However, leaving aside the contradictory nature of the Government’s position in this regard and assuming that the applicants’ abducted relatives were indeed under the control of State agents after their abduction, 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 respect the Court considers that such a situation gives rise to issues which go beyond a mere “irregular detention” in violation of Article 5of the Convention. 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 respect should be rejected.
260. 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 250 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 Turpal-Ali Yandayev, Mr Said-Ali Khamayev, Mr Sultan Saynaroyev, Mr Usman Magomadov, Mr Alash Mugadiyev, Mr Rasul Tutayev, Mr Askhab Konchiyev, Mr Yusup Mezhiyev, MrLom-AliAkhilgov, Mr Isa Zilbukharov, Mr Ruslan Zilbukharov, Mr Aslan Tsurayev, Mr Cha-Borz Ibragimov, Mr Sharpuddi Altamirov, Mr Timerlan Akhmadov, Mr Abdul-Malik Dishnayev and Mr Abdul Dishnayev.
(b) Alleged inadequacy of the investigations into the abductions
261. At the outset the Court notes with regret that in the cases of Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08),and Talkhigova and Others v. Russia (no. 66830/11) the Government did not submit copies of the investigation files, as requested (see paragraphs 34, 59, and 187 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.
262. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which have occurred in particular, in Chechnya between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see paragraph 240 above). In the case 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 and not of results, the Court notes that each set of criminal proceedings has been plagued by a combination of defects similar to those enumerated in the Aslakhanova and Others judgment (cited above, §§ 123‑25). Each was subjected to several decisions to suspend the investigation in question; 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 servicemen who could have participated in the abductions.
263. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and deaths of Mr Turpal-Ali Yandayev, Mr Said-Ali Khamayev, Mr Sultan Saynaroyev, Mr Usman Magomadov, Mr Alash Mugadiyev, Mr Rasul Tutayev, Mr Askhab Konchiyev, Mr Yusup Mezhiyev, MrLom-AliAkhilgov, Mr Isa Zilbukharov, Mr Ruslan Zilbukharov, Mr Aslan Tsurayev, Mr Cha-Borz Ibragimov, Mr Sharpuddi Altamirov, Mr Timerlan Akhmadov, Mr Abdul-Malik Dishnayev and Mr Abdul Dishnayev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.
VII. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION
264. The applicants complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused by the disappearance of their relatives and the unlawfulness of their relatives’ detention. They furthermore argued that, contrary to Article 13 of the Convention, they had no available domestic remedies in respect of the alleged violation of Article 2 of the Convention. The applicants in the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11), and Talkhigova and Others v. Russia (no. 66830/11) also alleged a lack of effective domestic remedies in respect of their complaints under Articles 3 and 5 of the Convention. The invoked Articles read, in so far as relevant:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
265. 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 applicants’ relatives’ arrest by State agents. 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.
266. The applicants maintained their complaints.
B. The Court’s assessment
1. Admissibility
267. The Court notes that these 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.
2. Merits
268. 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 sustained 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).
269. The Court reiterates its findings regarding the State’s responsibility for the abductions of Mr Turpal-Ali Yandayev, Mr Said-Ali Khamayev, Mr Sultan Saynaroyev, Mr Usman Magomadov, Mr Alash Mugadiyev, Mr Rasul Tutayev, Mr Askhab Konchiyev, Mr Yusup Mezhiyev, MrLom-AliAkhilgov, Mr Isa Zilbukharov, Mr Ruslan Zilbukharov, Mr Aslan Tsurayev, Mr Cha-Borz Ibragimov, Mr Sharpuddi Altamirov, Mr Timerlan Akhmadov, Mr Abdul-Malik Dishnayev, and Mr Abdul Dishnayev and the failure to carry out meaningful investigations into the incidents. It finds that the applicants, who are close relatives of the abducted men, 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.
270. 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). The Court furthermore confirms that since it has been established that the applicants’ relatives were detained by State agents – apparently without any legal grounds or acknowledgement of such detention (see paragraph 250 above) – this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.
271. 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.
272. In the light of the above, and taking into account the scope of the applicants’ complaints, the Court finds that the applicants in all cases did not have at their disposal an effective domestic remedy for their grievances under Article 2, in breach of Article 13 of the Convention. In addition, the applicants in the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11), and Talkhigova and Others v. Russia (no. 66830/11)did not have at their disposal an effective domestic remedy for their grievances under Article 3, in breach of Article 13 of the Convention.
273. As regards the alleged breach of Article 13, read in conjunction with Article 5 of the Convention, as submitted by the applicants in the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11) and Talkhigova and Others v. Russia (no. 66830/11), 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 (see, amongst many examples, 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).
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
274. 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
275. The applicants claimed compensation for loss of financial support from their families’ respective breadwinners. They submitted their calculations as follows. The applicants in the cases of Sultan Magomedov and Others v. Russia (no. 29910/08), Konchiyeva and Others v. Russia (no. 31280/11), and Akhilgovy v. Russia (no. 52051/11)based their calculations on either the average or the minimum monthly salary in Russia;the applicants in the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Temersultanova and Others v. Russia (no. 41884/11), Talkhigova and Others v. Russia (no. 66830/11), and Dishnayeva and Others v. Russia (no. 851/12)made their calculations on the basis of the UK Ogden Actuary Tables, using domestic subsistence levels. The amounts claimed by the applicants were as follows.
276. The first applicant in the case of Yandayeva and Khamayev v. Russia (no. 5374/07) claimed 1,797,009 Russian roubles (RUB) – (approximately 24,780 euros (EUR)); and the second applicant claimed RUB 1,460,470 (approximately EUR 20,140).
277. The applicants in the case of Saynaroyevy v. Russia (no. 7651/08) did not seek compensation for pecuniary damage.
278. The fifth applicant in the case of Sultan Magomedov and Others v. Russia (no. 29910/08) claimed EUR 1,147; the sixth applicant claimed EUR 2,038; and the seventh applicant claimed EUR 5,570.
279. The applicant in the case of Aduyeva v. Russia (no. 14688/09) claimed RUB 352,384.74 (approximately EUR 5,120).
280. The applicant in the case of Tutayeva v. Russia (no. 22253/11) claimed RUB 555,920.56 (approximately EUR 9,140).
281. The applicants in the case of Konchiyeva and Others v. Russia (no. 31280/11) claimed EUR 9,000 jointly.
282. The first applicant in the case of Temersultanova and Others v. Russia (no. 41884/11) claimed RUB 1,121,635.75 (approximately EUR 15,180); the second applicant claimed RUB 409,268.01 (approximately EUR 5,537); and the third applicant did not claim any compensation for pecuniary damage.
283. The first applicant in the case of Akhilgovy v. Russia (no. 52051/11) claimed EUR 36,600; and the second applicant claimed EUR 45,000.
284. The first and fourth applicants in the case of Talkhigova and Others v. Russia (no. 66830/11)claimed RUB 2,383,190.49 (approximately EUR 32,240) each; the second applicant claimed RUB 836,690.25 (approximately EUR 11,320); the third applicant claimed RUB 2,861,304.49 (approximately EUR 38,710); the fifth and sixth applicants claimed RUB 2,485,031.04 (approximately EUR 33,620) each; the seventh applicant claimed RUB 1,988,025.85 (approximately EUR 26,890); the eighth, ninth, and tenth applicants claimed RUB 6,303,507.74 (approximately EUR 85,290) each; the eleventh applicant claimed RUB 10,117,112.6 (approximately EUR 136,880); the twelfth applicant claimed RUB 6,744,741.77 (approximately EUR 91,260); and the thirteenth applicant claimed RUB 3,151,753.93 (approximately EUR 42,643).
285. The first applicant in the case of Dishnayeva and Others v. Russia (no. 851/12) claimed RUB 2,194,854 (approximately EUR 28,530); and the fourth applicant claimed RUB 1,719,019 (approximately EUR 22,348).
286. In the cases of Yandayeva and Khamayev v. Russia (no. 5374/07), Sultan Magomedov and Others v. Russia (no. 29910/08), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11), Talkhigova and Others v. Russia (no. 66830/11), and Dishnayeva and Others v. Russia (no. 851/12) the Government submitted that the award should be made in compliance with the Court’s well‑established case-law.
287. The Government stated that the applicants in the case of Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11) and Akhilgovy v. Russia (no. 52051/11)had failed to substantiate the submission that their disappeared relatives had been the family breadwinners. The Government also noted that the UK Ogden Actuary Tables were not applicable to Russia and that it was open to the applicants to apply for a social allowance to compensate for the loss of their respective breadwinners.
288. In respect of the case of Sultan Magomedov and Others v. Russia (no. 29910/08) the Government also submitted that no compensation for pecuniary damage should be awarded to the second applicant’s heir, Ms Zakhra Magomadova.
2. Non-pecuniary damage
289. The applicants in the case of Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Temersultanova and Others v. Russia (no. 41884/11), Talkhigova and Others v. Russia (no. 66830/11), and Dishnayeva and Others v. Russia (no. 851/12) left the determination of the amount to the Court’s discretion.
290. In the case of Yandayeva and Khamayev v. Russia (no. 5374/07) the applicants asked the Court to make an award separately to each of the applicants; in the case of Talkhigova and Others v. Russia (no. 66830/11) the applicants asked the Court that a separate award be made, respectively, to the following groups jointly: (1) the first, second and fourth applicants; (2) the third applicant; (3) the fifth, sixth and seventh applicants; (4) the eleventh and twelfth applicants; and (5) the eighth, ninth, tenth, and thirteenth applicants. In Dishnayeva and Others v. Russia (no. 851/12) the applicants asked the Court to make a separate award to (i) the first, second and third applicant jointly, and (ii) the fourth applicant.
291. The applicants in the case of Konchiyeva and Others v. Russia (no. 31280/11) claimed EUR 70,000 jointly.
292. The applicants in the case of Akhilgovy v. Russia (no. 52051/11) claimed EUR 500,000 jointly.
293. The Government left the matter to the Court’s discretion, emphasising in respect of the case of Akhilgovy v. Russia (no. 52051/11) (referring to Tumayeva and Others v. Russia, no. 9960/05, 16 December 2010) that in similar cases such awards had not exceeded EUR 2,000 or EUR 5,000 per applicant.
294. In the case of Sultan Magomedov and Others v. Russia (no. 29910/08) the Government submitted that no compensation for non‑pecuniary damage should be awarded to the second applicant’s heir, Ms Zakhra Magomadova.
B. Costs and expenses
295. The applicants in the case of Yandayeva and Khamayev v. Russia (no. 5374/07) claimed EUR 3,413.5 for the preparation of legal documents and administrative and postal expenses.
296. The applicants in the case of Saynaroyevy v. Russia (no. 7651/08) claimed EUR 2,000 and 2,556.84 pounds sterling (GBP) – (about EUR 2,885) for legal work, administrative expenses and translation costs.
297. The applicants in the case of Sultan Magomedov and Others v. Russia (no. 29910/08) claimed EUR 2,200 and GBP 1,259 (about EUR 1,420) for legal work, administrative expenses and translation costs.
298. The applicant in the case of Aduyeva v. Russia (no. 14688/09) claimed EUR 2,349.25 for the preparation of legal documents and for administrative and postal expenses.
299. The applicant in the case of Tutayeva v. Russia (no. 22253/11) claimed EUR 2,341.44 for the preparation of legal documents and for administrative and postal expenses.
300. The applicants in the case of Konchiyeva and Others v. Russia (no. 31280/11) claimed EUR 9,265 for legal representation before the domestic authorities and the Court.
301. The applicants in the case of Temersultanova and Others v. Russia (no. 41884/11) claimed EUR 3,049.50 for the preparation of legal documents and for administrative expenses.
302. In the case of Akhilgovy v. Russia (no. 52051/11) the applicants claimed EUR 6,896 for the preparation of legal documents and their translation, as well as for administrative and postal expenses.
303. In the case of Talkhigova and Others v. Russia (no. 66830/11) the applicants claimed EUR 6,420.93 for the preparation of legal documents and for administrative and postal expenses.
304. In the case of Dishnayeva and Others v. Russia (no. 851/12) the applicants claimed EUR 2,978.47 for the preparation of legal documents and for administrative and postal expenses.
305. The applicants asked for the awards to be paid into the bank accounts of their representatives.
306. The Government stated that inthe case of Yandayeva and Khamayev v. Russia (no. 5374/07), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), and Akhilgovy v. Russia (no. 52051/11) the legal expenses had been excessive.
307. In the cases of Saynaroyevy Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11), Talkhigova and Others v. Russia (no. 66830/11) and Dishnayeva and Others v. Russia (no. 851/12) the Government left the level of compensation to be awarded to the Court’s discretion.
C. The Court’s assessment
308. The Court reiterates that there must be a clear causal connection between 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 furthermore 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).
309. 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.
310. 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).
311. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicants the amounts specified 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
312. 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.
IX. ARTICLE 46 OF THE CONVENTION
313. The applicants in the cases of Saynaroyevy v. Russia (no. 7651/08) and Sultan Magomedov and Others v. Russia (no. 29910/08) asked the Court to indicate that the respondent Government shall be obliged to identify and prosecute those responsible for the abduction of their relatives, and that the award of non-pecuniary damages should be coupled with the Court’s decision that a fresh investigation should follow the entry into force of the Court’s judgment. The applicants also invited the Court to indicate that, irrespective of the outcome of the investigation, the respondent Government should undertake all possible measures to locate the bodies of their abducted relatives and return them to their family members, as well as to provide the applicants with access to the investigation files.
314. The Government did not comment on this part of the applicants’ submission.
315. 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.”
316. Keeping in mind its findings in the case of 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 Sultan Magomedov and Others v. Russia (no. 29910/08) Ms Zakhra Magomadova 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 Turpal-Ali Yandayev, Mr Said-Ali Khamayev, Mr Sultan Saynaroyev, Mr Usman Magomadov, Mr Alash Mugadiyev, Mr Rasul Tutayev, Mr Askhab Konchiyev, Mr Yusup Mezhiyev, MrLom-AliAkhilgov, Mr Isa Zilbukharov, Mr Ruslan Zilbukharov, Mr Aslan Tsurayev, Mr Cha-Borz Ibragimov, Mr Sharpuddi Altamirov, Mr Timerlan Akhmadov, Mr Abdul-Malik Dishnayev and Mr Abdul Dishnayev;
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, on account of their relatives’ disappearance and the authorities’ response to their suffering;
7. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention;
8. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
9. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 of the Convention in respect of the following applications: Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11) and Talkhigova and Others v. Russia (no. 66830/11);
10. Holds that no separate issue arises under Article 13 of the Convention in conjunction with Article 5 of the Convention in respect of the following applications: Yandayeva and Khamayev v. Russia (no. 5374/07), Saynaroyevy v. Russia (no. 7651/08), Sultan Magomedov and Others v. Russia (no. 29910/08), Aduyeva v. Russia (no. 14688/09), Tutayeva v. Russia (no. 22253/11), Konchiyeva and Others v. Russia (no. 31280/11), Temersultanova and Others v. Russia (no. 41884/11) and Talkhigova and Others v. Russia (no. 66830/11);
11. 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;
12. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 4 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Branko Lubarda
Deputy 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. | 5374/07 23/01/2007 |
1) Ms Luiza YANDAYEVA 06/10/1960 Serzhen-Yurt mother of Mr Turpal-Ali YANDAYEV 2) Mr Baudin KHAMAYEV |
1) Mr Turpal-Ali YANDAYEV
2) Mr Said-Ali KHAMAYEV |
SRJI/ ASTREYA |
EUR 6,000 (six thousand) to the first and second applicants each | EUR 60,000 (sixty thousand euros) to the first and second applicants each |
EUR 2,000 (two thousand euros) |
| 2. | 7651/08 14/12/2007 |
1) Mr Magomet SAYNAROYEV 08/04/1965 Ordzhonikidzevskaya son 2) Ms Bazhdat SAYNAROYEVA |
Mr Sultan SAYNAROYEV | MEMORIAL HUMAN RIGHTS CENTRE | – | EUR 60,000 (sixty thousand euros) to the first applicant |
EUR 2,000 (two thousand euros) |
| 3. | 29910/08 12/06/2008 |
1) Mr Sultan MAGOMEDOV 21/12/1951 Mesker-Yurt brother 2) Mr Alash MAGOMEDOV 3) Mr Vakha MAGOMADOV 4) Ms Marusa MAGOMADOVA 5) Ms Bella MAGOMADOVA 6) Ms Khava MAGOMADOVA 7) Mr Umar MAGOMADOV |
Mr Usman MAGOMADOV | MEMORIAL HUMAN RIGHTS CENTRE | EUR 500 (five hundred) to the fifth applicant
EUR 1,000 (one thousand) to the sixth applicant EUR 3,000 (three thousand) to the seventh applicant |
EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 4. | 14688/09 03/03/2009 |
Ms Yakha ADUYEVA 01/03/1963 Ersinoy wife |
Mr Alash MUGADIYEV |
SRJI/ ASTREYA |
EUR 3,000 (three thousand) | EUR 60,000 (sixty thousand euros) |
EUR 2,000 (two thousand euros) |
| 5. | 22253/11 01/04/2011 |
Ms Tumisha TUTAYEVA 23/05/1945 Grozny mother |
Mr Rasul TUTAYEV | SRJI/ ASTREYA |
EUR 5,000 (five thousand) | EUR 60,000 (sixty thousand euros) |
EUR 2,000 (two thousand euros) |
| 6. | 31280/11 30/03/2011 |
1) Ms Roza KONCHIYEVA 08/10/1968 Serjen-Yurt sister 2) Mr Obusoltan KONCHIYEV 3) Mr Supyan KONCHIYEV |
Mr Askhab KONCHIYEV | MATERI CHECHNI | EUR 5,000 (five thousand) to the first and third applicants jointly | EUR 60,000 (sixty thousand euros) to the first and third applicants jointly |
EUR 1,000 (one thousand euros) |
| 7. | 41884/11 01/07/2011 |
1) Ms Fatima TEMERSULTANOVA 04/07/1981 Grozny wife 2) Mr Magomed MEZHIYEV 3) Mr Musa MEZHIYEV |
Mr Yusup MEZHIYEV | SRJI/ ASTREYA |
EUR 6,000 (six thousand) to the first applicant
EUR 3,000 (three thousand) to the second applicant |
EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 8. | 52051/11 01/08/2011 |
1) Mr Bayal AKHILGOV (also spelt as Bayali) 17/02/1958 Urus-Martan father 2) Ms Bikhana AKHILGOVA |
MrLom-AliAKHILGOV | Mr Dokka ITSLAYEV | EUR 6,000 (six thousand) to the first and second applicants each | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 9. | 66830/11 20/10/2011 |
1) Ms Zara TALKHIGOVA 02/11/1958 Gekhi-Chu mother of Isa ZILBUKHAROV 2) Ms Nina ZILBUKHAROVA 3) Ms Makka ZILBUKHAROVA 5) Ms Amina BOGATYREVA 9) Mr Islam IBRAGIMOV 10) Ms Elima IBRAGIMOVA 11) Mr Magomed ALTAMIROV 12) Ms Rozaliya ALTAMIROVA 13) Mr Chingiz IBRAGIMOV |
1) Mr Isa ZILBUKHAROV 2) Mr Ruslan ZILBUKHAROV 3) Mr Aslan TSURAYEV 4) Mr Cha-Borz (also spelled as Chaborz) IBRAGIMOV 5) Mr Sharpuddi ALTAMIROV |
SRJI/ ASTREYA |
EUR 6,000 (six thousand) to the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth applicants each
EUR 3,000 (three thousand) to the second and thirteenth applicants each |
EUR 90,000 (ninety thousand euros) to the first, second and fourth applicants jointly;
EUR 30,000 (thirty thousand euros) to the third applicant; EUR 60,000 (sixty thousand euros) to EUR 60, 000 (sixty thousand euros) to the eleventh and twelfth applicants jointly; |
EUR 2,000 (two thousand euros) |
| 10. | 851/12 14/12/2011 |
1) Ms Maymunt DISHNAYEVA 23/05/1939 Shali mother of Mr Abdul-Malik DISHNAYEV and Mr Abdul DISHNAYEV 2) Ms Medina BELIGOVA 3) Ms Medinat IDIGOVA 4) Mr Adam AKHMADOV |
1) Mr Abdul-Malik DISHNAYEV
2) Mr Abdul DISHNAYEV 3) Mr Timerlan AKHMADOV |
SRJI/ ASTREYA |
EUR 12,000 (twelve thousand) to the first applicant
EUR 6,000 (six thousand) to the fourth applicant |
EUR 120,000 (one hundred twenty thousand) to the first, second and third applicants jointly
EUR 60,000 |
EUR 2,000 (two thousand euros) |
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