Last Updated on May 16, 2019 by LawEuro
THIRD SECTION
CASE OF MEZHIDOVY AND OTHERS v. RUSSIA
(Application no. 50606/08 and 9 others – see list appended)
JUDGMENT
STRASBOURG
23 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Mezhidovy and Others 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 2 October 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 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 achieving any tangible results. The applicants lodged requests for information and assistance in the search for their relatives with the investigating authorities and various law-enforcement bodies. Their requests received either 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 by the applicants and their relatives and/or neighbours to both the Court and the domestic investigating authorities. The Government did not dispute the principal facts of the cases as presented by the applicants, but questioned the allegation that servicemen had been involved in the events.
A. Mezhidovy v. Russia (no. 50606/08)
7. The first applicant is the mother, and other applicants are brothers of Mr Magomed-Emin Mezhidov, who was born in 1980.
1. Abduction of Mr Magomed-Emin Mezhidov
8. Between 13 and 20 May 2002 a military unit of the Russian federal forces in Chechnya under the command of General Bronivitskiy conducted a special operation in the village of Avtury. The military servicemen cordoned off the area and ran identity checks on all the residents. Detained residents were taken to a special filtration camp set up on the outskirts of the settlement.
9. On the morning of 15 May 2002 Mr Magomed-Emin Mezhidov was at home with the first and second applicants. Another relative, Mr M., and a neighbour,were also present. At around 10 a.m. two armoured personnel carriers(“APCs”) arrived at the applicants’ house located in the centre of the village. A group of about twenty armed and masked servicemen in camouflage uniforms broke into the courtyard and threatened all those present with firearms. Having checked the identity documents, the servicemen forced Mr Magomed-Emin Mezhidov into one of the APCs and drove off in the direction of the filtration camp. According to the applicants, the arrest was filmed by journalists.
10. The applicants submitted written statements from Mr B.Dzh., a village resident arrested on 15 May 2002. He had seen Mr Magomed-Emin Mezhidov in the filtration camp. The latter had been exhausted and had complained of ill-treatment by the servicemen.
11. In 2010 Mr Magomed-Emin Mezhidov’s skeletal remains with a bullet hole in the skull were found in a forest near Avtury (see paragraph 17 below). According to the applicants, along with the remains,Mr Magomed‑Emin Mezhidov’s t-shirt, which he had been wearing on 15 May 2002, was found. It had two gunshot holes and a further hole that had been caused by stabbing with a knife.
2. Official investigation
12. Immediately after the abduction the applicants informed the authorities about it and requested that a criminal investigation be opened into the incident.
13. On 28 November 2002 the Shali district prosecutor’s office opened criminal case no. 59266 under Article 126 of the Criminal Code of Russia (“the CC”) (abduction). On the same day the first applicant was granted victim status.
14. On 28 January 2003 the investigation in the case was suspended for failure to identify the perpetrators.It appears that the first applicant was informed of that decision on 11 April 2006.
15. On 13 May 2003, in response to an enquiry from the applicants, the investigator informed them that the investigation had been suspended but that operational search activities were under way.
16. On 24 December 2003 and 26 February 2006 the first applicant asked various authorities for assistance in the investigation. It appears that her requests were forwarded to the Chechnya Prosecutor’s Office. By letters of 23 January 2004 and 11 April 2006 the prosecutor’s officeinformed her that the operational search for the perpetrators was ongoing.
17. On 22 April 2010 the investigating authority found the skeletal remains of Mr Magomed-Emin Mezhidov, and resumed the investigation.On 22 May 2010 the investigation was again suspended.
18. On 21 January 2011 the investigation was resumed again. Three days later the investigating authority obtained a thirty-second video, allegedly made on 15 May 2002. It depicted armed men forcing a person, possibly Mr Magomed-Emin Mezhidov, into an APC. The footage was included in the criminal case file.
19. On 27 January 2011 a new criminal case was opened into the circumstances of Mr Magomed-Emin Mezhidov’s death under Article 105 of the CC (murder). On the same day the investigation in the case was joined to the investigation into the abduction, and suspended for failure to identify the perpetrators. It appears that the joint investigation is still pending.
B. Shakhidova and Others v. Russia (no. 27066/09)
20. The applicants are close relatives of Mr Akhyad Shakhidov, who was born in 1964, and of his brother, Mr Khamzat Shakhidov, born in 1968. The first applicant is the wife of Mr Akhyad Sakharov; the second, third and fourth applicants are his children. The fifth applicant is the wife of Mr Khamzat Shakhidov; the sixth applicant is his son.
1. Abduction of Mr Khamzat Shakhidov and Mr Akhyad Shakhidov
21. On the morning of 14 May 2002 a group of about thirty armed military men in camouflage uniforms arrived in APCs and military lorries inthe village of Makhkety to carry out an identity checkon residents. The men were of Slavic appearance and spoke unaccented Russian.
22. At about 10.30 a.m. the servicemen entered the applicants’ house. Mr Akhyad Shakhidov, Mr Khamzat Shakhidov, the applicants and other family members were at home. The men checked the brothers’ identity documents and searched the premises. Then they forced Mr Khamzat Shakhidov into an APC and took him in the direction of the village of Khattuni, in the Vedeno district. Shortly thereafter, several armed men remaining in the house forced Mr Akhyad Shakhidov into their military lorry and took him in the same direction.
23. On their way out of the village, the military convoy passed a broken‑down UAZ vehicle. The car’s driver, Mr M.K., the head of the Khattuni police department, asked the servicemen for their help with the vehicle, but to no avail. The first applicant, who was following the convoy, asked Mr M.K. where the servicemenwere from. The officer replied that they were from Grozny.
24. Another village resident, Mr Zh., was abducted on the same day under similar circumstances. He was released several days later and stated that on the day of the abduction the perpetratorshad put him in the same APC as Mr Akhyad Shakhidov and Mr Khamzat Shakhidov. After the ride the men had been separated and he had not seen them again.
2. Official investigation
25. Immediately after the abduction the applicants informed the authorities thereof and requested assistance in the search for their relatives.
26. On 16 June 2002 the Vedeno district prosecutor’s office opened criminal case no. 73038 under Article 126 of the CC (abduction).
27. On 22 July 2002 the case file was transferred to the Shali military prosecutor’s office for further investigation.
28. On 17 December 2002 the casefile was destroyed by fire. It was reassembled about two years later, in October 2004.
29. On 18 November 2004 the investigation in the case was suspended.
30. On 8 September 2005 the supervising prosecutor ordered that the investigation be resumed. On the same day an examination of the crime scene was conducted.
31. Two days later, on 10 or 11 September 2005, the first and fifth applicants were granted victim status in the case.
32. On 16 September 2005 the Chechnya prosecutor’s office replied to a request from the applicants for information, stating that operational search activities were in progress.
33. On 8 October 2005 it was decided to suspend the investigation. The fifth applicant was informed thereof two days later.
34. On 21 January 2009 the first applicant asked the investigating authorities to provide her with information about the progress of the investigation. On 28 February 2009 the investigators replied that the proceedings were pending.
35. Five years later, on 28 February 2014, the investigation was resumed, particularly, due to the need to examine the applicants’consistent allegationof the involvement ofState servicemen in the abduction, which had not been duly examined since the beginning of the criminal proceedings. On 5 April 2014, the investigators again suspended the proceedings, without having taken any meaningfulsteps.It appears that the investigation is still pending.
C. Israilovy v. Russia (no. 58253/10)
36. The applicants are close relatives of Mr Magomed Israilov, who was born in 1980. The first and second applicants are his late father and mother, who died on 11 June 2013 and 26 March 2014 respectively. The third applicant is Mr Magomed Israilov’s brother.
1. Abduction of Mr Magomed Israilov
37. At the material time Mr Magomed Israilov lived with the applicants in the town of Shali, Chechnya. Mr Magomed Israilov’s sister, Ms G.A., was also staying in the house with her son, who was a minor.
38. At around 3 a.m. on 16 August 2002 (in the documents submitted the date was also referred to as 17 August 2002) the family was at home when two APCs and a Ural lorry with a group of about forty to fifty armed servicemen arrived at their house. The servicemen, all of whom were in balaclavas, broke into the house. Having threatened the family members with firearms, they checked their identity documents and searched the premises. They then forced Mr Magomed Israilov and the third applicant out of the house, blindfolded them, tied their hands behind their backs and put them into different APCs. Thereafter, the convoy of military vehicles drove off in the direction of Avtury.
39. The second applicant followed the abductors’ vehicles up to a military checkpoint at the entrance to the military compound of Special Investigative Group-1 (“the military compound”) (ПерваяСпециальнаяСледственнаяГруппа),located about five hundred metres from their house in the direction of Avtury. He saw the convoy enter the military compound.
40. Mr Magomed Israilov has not been seen since. His abduction took place in the presence of several witnesses, including the applicants and their neighbours.
2. The applicants’ search for their relative and subsequent events
41. At around 11 p.m. on 17 August 2002 the third applicant was released by the abductors. He was dropped off by the servicemen in front of his aunt’s house in the town of Shali.
42. According to the third applicant, after his abduction he was taken to the military compound. The drive was short, but it was unclear in what direction the vehicle was going. While in detention, he did not see his brother, but heard him screaming. He also heard the guards conversing in unaccented Russian.
43. Searching for their son, the first and second applicants spoke to Colonel T.K., who confirmed to them that Mr Magomed Israilov was detained at the military compound and promised to release him in exchange for money.
3. Official investigation
44. On 29 August 2002 the Shali district prosecutor’s office openedcriminal case no. 59221 under Article 126 of the CC (abduction). On the same day the second applicant was granted victim status in the case.
45. On 29 October 2002 the investigation in the case was suspended.
46. On 6 June 2003 the supervising prosecutor overruled the decision to suspend the proceedings and ordered that the investigation be resumed. Subsequently, it was suspended and resumed on several occasions. In particular, it was suspended on 6 June 2003, then resumed on 17 April 2006 and then suspended again on 19 May 2006.
47. On numerous occasions between 2002 and 2006, in particular on 17 March 2003 and 13 March 2006, the applicants complained to various law-enforcement authorities about the abduction and requested assistance in their search for Mr Magomed Israilov. In reply they received letters stating that their complaints had been examined or forwarded to other authorities for examination and that the law‑enforcement agencies were taking measures to establish their relative’s whereabouts.
48. In 2007 the criminal proceedings were resumed and suspended several times, without any tangible results having been achieved. It appears that the investigation is still pending.
D. Isiyevy v. Russia (no. 52167/11)
49. The first, second and third applicants are respectively the mother, sister and daughter of Mr Razambek Isiyev, who was born in 1983.
1. Abduction of Mr Razambek Isiyev and subsequent events
50. On 22 July 2002 Mr Razambek Isiyev was driving his car on the Argun-Shali highway. At about 3 or 4 p.m. a group of servicemen in APCs stopped him on the highway and took him to the Federal Security Service (“the FSB”) office in the town of Argun.
51. Later thesame day the first applicant contacted Mr M.Kh., the head of a unit at the FSB office, where Mr Razambek Isiyev had been hired the previous day. According to Mr M.Kh., the FSB officer, D.Ts.,had told him that Mr Razambek Isiyev had been detained for questioning.
52. At 5 p.m. on 23 July 2002 an APC, a UAZ vehicleand a Ural lorry parked near garages situated next to the applicants’ house. The first applicant saw her son, Mr Razambek Isiyev, inside the UAZ vehiclethrough its open door. He was pointing in the direction of the garages and explaining something. He saw his mother but before he could say anything the servicemen shut the vehicle door and drove off.
53. At 10 a.m. on 24 July 2002 the servicemen returned to the same place with Mr Razambek Isiyev.This time they used an excavator to dig the ground. They did not find anything and left.
54. On 25 July 2002 the applicantsand their relatives gathered in front of the military commander’s office in Argun. Mr M.Kh., the head of the FSB unit, assured the first applicant that he would bring Mr Razambek Isiyev home. For the next several days the first applicant visited the office of the military commander and each time Mr M.Kh. assured her that her son would be released soon. However, Mr Razambek Isiyev has not been seen since.
2. Official investigation
55. On 3 August 2002 the first applicant complained of the disappearance of her son to the Argun district prosecutor’s office. On the same date the prosecutor’s office openedcriminal case no. 78081under Article 126 of the CC and granted the applicant victim status in the proceedings.
56. On 3 October 2002 the investigation was suspended, on 27 January 2004 it was resumed, and on 28 January 2004 it was suspended again.
57. On 13 July and 5 August 2004 the North Caucasus military prosecutor’s office forwarded the first applicant’s requests for assistance in establishing her son’s whereabouts to the military prosecutor’s office of military unit no. 20102. On 16 August 2004 the latter informed the first applicant that the involvement of their servicemen in her son’s abduction had not been confirmed.
58. On 26 August 2004 the Argun district prosecutor’s office informed the applicants that the investigation of the abduction had been suspended but that search activities were under way.
59. On 12 September 2006 the first applicant asked the investigating authorities to provide her with access to case-file documents. It is unclear whether the request was granted.
60. On 22 February 2007 the first applicant requested the authorities to expedite the search for her missing son. As a result, on 27 March 2007 the investigation was resumed. It was again suspended a month later,on 27 April 2007.
61. On 20 February 2009, 5 August 2010 and 14 February 2011 the applicants asked the investigators to provide them with an update on the progress of the investigation. In reply to the first letter the authorities informed the first applicant that the investigation had been suspended, but that search activities were being undertaken. No reply was given toeither the second orthe third enquiry. It appears that the investigation is still pending.
E. Limayevy v. Russia (no. 62560/11)
62. The first applicant is the mother, and the second applicant the brother of Mr Movsar Limayev, who was born in 1978.
1. Abduction of Mr Movsar Limayev
63. At 3.30 a.m. on 28 October 2002 three APCs with smeared registration numbers stopped at the first applicant’s house in the village of Mesket-Yurt. Six armed servicemen in camouflage uniforms and balaclavas jumped over the fence into the courtyard. Two servicemen broke into the house and demanded that the lights be turned on. Then they handcuffed Mr Movsar Limayev, who was in his underwear and barefoot, and took him outside. The intruders ordered the applicants and their relatives to remain in the house. However, the first applicant went outside and saw Mr Movsar Limayev being forced intoone of the APCs, which then drove off in the direction of Shali.
64. The applicants have had no news of Mr Movsar Limayev since.
2. Official investigation
65. On the same day, 28 October 2002, the applicants complained of the abduction to the Shali district police and subsequently to a number of other law‑enforcement agencies.
66. On 31 March 2003 the Shali district prosecutor’s office opened criminal case no. 22053 under Article 126 of the CC. On the same day the first applicant was questioned and granted victim status in the criminal case.
67. On 31 May 2003 the investigation was suspended.
68. On a number of occasions between 2003 and 2005 the applicants complained to various law‑enforcement agencies about the abduction and requested assistance in the search for their relative. In reply they received formal letters, stating either that the investigation was in progress, or that their requests had been forwarded elsewhere.
69. Between November 2005 and August 2006 the criminal case was suspended and resumed several times. The last decision to suspend the investigation of which the applicants were informedwas taken on 3 August 2006.
70. On 26 March 2008 the Materi Chechni (Mothers of Chechnya), an NGO with offices in Moscow and the Republic of Ingushetia, complained on behalf of the first applicant to the Prosecutor General’s Office that the investigation into her son’s death had been ineffective. The complaint was forwarded to the investigating authority and included in the criminal case file, but no reply followed. It appears that the investigation is still pending.
F. Sadulayeva and Mintsaligov v. Russia (no. 77744/11)
71. The first applicant is the wife, and the second applicant the son of Mr Musa Mintsaligov, who was born in 1968.
1. Abduction of Mr Musa Mintsaligov
72. At about 3 a.m. on 10 October 2004 the applicants were at home when a large group of armed servicemen in camouflage uniforms arrived at their house in the village of Valerik, in two APCs and two Ural lorries without registration numbers. A group of about six servicemen broke into the house, forced Mr Musa Mintsaligov outside and took him away to an unknown destination. The servicemen spoke unaccented Russian, most of them were in balaclavas and helmets; those without were of Slavic and Asian appearance.
73. The whereabouts of Mr Musa Mintsaligov remain unknown. His abduction took place in the presence of several witnesses, including the applicants and their neighbours.
2. Official investigation
74. Immediately after the abduction the applicants informed the authorities thereof and requested that a criminal investigation be initiated.
75. On 15 October 2004 investigators examined the crime scene.
76. On 16 October 2004 an officer of the Valerik traffic police informed the head of the Achkhoy-Martan district police that on the night of the abduction a convoy of military vehicles, consisting of two APCs and two Ural lorries without registration numbers, had left Valerik, passed through a checkpoint, and driven off in the direction of Urus-Martan.
77. On 1 November 2004 the Achkhoy-Martan inter-district prosecutors’ office openedcriminal case no. 38052 under Article 126 of the CC (abduction).
78. Between 26 November and 24 December 2004 the investigators questioned numerous witnesses to the events, most of whom were the applicants’ neighbours and members of their family. They confirmed the circumstances of the abduction as described above.
79. On 25 December 2004 the first applicant was granted victim status in the case and questioned by the authorities.
80. On 1 March 2005 the investigation was suspended for failure to identify the perpetrators. It was subsequently resumed on 10 June 2008 and 21 July 2011 following criticism by the supervisors, and then again suspended on 10 July 2008 and 31 July 2011 respectively.
81. In the meantime, on numerous occasions between 2004 and 2006 the applicants complained to various military and law-enforcement authorities about the abduction and requested assistance in the search for their relative. In reply they received letters stating that the law-enforcement agencies were taking measures to establish Musa Mintsaligov’s whereabouts.
82. On 2 July 2010 the first applicant asked the authorities to inform her about the progress in the investigation and to resume the proceedings in the criminal case. Three days later the investigator informed her that the proceedings had been suspended on 10 July 2008 butthat operational search activities were in progress.
83. On 2 February 2011 the first applicant asked the investigators to grant her full access to the contents of the investigation file. On 8 February 2011 her request was rejected.
84. On 21 February 2011 the first applicant challenged her lack of access to the criminal case file before the Achkhoy-Martan District Court.
85. On 24 March 2011 the court allowed the applicant’s complaint, having ordered the investigators to grant her full access to the file.
86. On 23 June 2011 the first applicant lodged another complaint with the court, challenging the investigators’ failure to take basic investigative steps. The complaint was rejected on 25 July 2011, because on 21 July 2011 the investigators had already resumed the proceedings. Then, ten days later, the investigation was suspended again. It appears that it is still pending.
G. Akhmadova and Others v. Russia (no. 2679/12)
87. The applicants are close relatives of Mr Vakhid Yakhyayev, who was born in 1956. The first applicant is his wife, and the second and third applicants are his sons.
1. Abduction of Mr Vakhid Yakhyayev
88. On 22 April 2002 seven or eight armed servicemen in camouflage uniforms entered the applicants’ house in the village of Goyty. The three applicants, Mr Vakhid Yakhyayev’s father, mother, minor daughter and his daughter-in-law were at home and witnessed the events that followed. Speaking unaccented Russian, the servicemen, who were of Slavic appearance, checked the family’s identity documents. They then said that they would take Mr Vakhid Yakhyayev to the Urus-Martan military commander’s office. After the servicemen had left, the first applicant ran outside and saw an APC and a UAZ- minivan driving away from the house. Mr Vakhid Yakhyayev has been missing ever since.
2. Official investigation
89. On 22 April 2002 the applicants complained of the abduction to the Urus-Martan district prosecutor’s office. On the same day the latteropened criminal case no. 61077 under Article 126 of CC (abduction) and granted the first applicant victim status in the case.
90. On 22 June 2002 the investigation was suspended and on 21 October 2003 it was resumed. A month later it was suspended again.
91. In October-November 2003 the investigators questioned the three applicants, Mr Vakhid Yakhyayev’s father, mother, minor daughter and his daughter-in-law. All of them confirmed the circumstances of the abduction as described above.
92. On 12 April 2004 the applicants requested that the Urus-Martan district police assist them in their search for Mr Vakhid Yakhyayev. On 2 June 2005 the applicants forwarded a similar request to the Chechnya prosecutor’s office.
93. On 22 February 2006 the applicants requested that the investigation be resumed. It was resumed on 17 July 2006, and then on 28 April 2006 it was suspended again.
94. On 7 August 2006 the applicants requested information on the progress in the investigation and on 28 April 2010 they requested permission to access the investigation file. Their requestswererefused, but the applicants successfully challenged the refusal before the Achkhoy‑Martan District Court. Their complaint was granted on 5 October 2010.
95. On 22 June 2011 the applicants asked the investigators to resume the proceedings and inform them of their progress. The next day theyreceived a letter saying that the proceedings had been suspended, but that operational search activities were in progress.
96. On 5 July 2011 the applicants lodged a complaint against the investigators with the Urus-Martan Town Court, seeking the resumption of the investigation.
97. On 21 July 2011 the investigators resumed the proceedings, so the court rejected the applicants’ complaint as groundless. An appeal lodged by the applicants against that decision was upheld by the Chechnya Supreme Court on 24 August 2011.
98. On 31 July 2011 the proceedings were suspended again.
99. In April 2012 the investigators resumed and then again suspended the criminal proceedings. It appears that the investigation is still pending.
H. Zaurbekovy v. Russia (no. 27987/12)
100. The first and second applicants are respectively the sister and the wife of Mr Musa Zaurbekov, who was born in 1964. The third, fourth, fifth and sixth applicants are his children, and the seventh applicant is his mother.
1. Abduction of Mr Musa Zaurbekov
101. At about 3 a.m. on 6 May 2003 the applicants and Mr Zaurbekov were at home in Grozny when a group of about ten armed military servicemen in camouflage uniforms broke into their house. Most of the servicemen were in balaclavas and those without were of Slavic appearance. They forced Mr Zaurbekov outside and took him away on foot in the direction of a nearby school, where two APCs and two UAZ vehicleswere waiting. The servicemen put Mr Zaurbekov into one of the vehicles and drove off in the direction of Grozny city centre. The abduction took place in the presence of the applicants and their neighbours.
102. The written statements of four neighbours, submitted by the applicants to the Court, confirm the account of the events as described above.
103. The whereabouts of Mr Musa Zaurbekov remain unknown.
2. Official investigation
104. On 6 May 2003 the first applicant informed the Chechnya prosecutor’s office of the abduction and requested that a criminal investigation be opened.
105. On 16 May 2003 the Staropromyslovskiy district prosecutor’s office in Grozny opened criminal case no. 50052 under Article 126 of the CC (abduction).
106. On 5 June 2003 the first applicant was granted victim status.
107. On 16 July 2003the investigation was suspended for failure to identify the perpetrators.
108. On 20 July 2004 the above-mentioned decision was overruled and the proceedings were resumed. A month later, having not achieved any tangible results, the investigation was suspended.
109. The investigation was subsequently resumed on 30 April 2006, suspended on 30 May 2006, resumed on 2 March 2007, and then suspended again on 3 April 2007. The applicants were not informed of those decisions.
110. On6 October 2010 the first applicant asked the Stichting Russian Justice Initiative, an NGO based in Moscow, to assist in the search forher brother and lodge information requests with various authorities in an attempt to establish his whereabouts. The second applicant submitted a similar request to the NGO in April 2011.
111. From the documents submitted it transpires that between 2010 and 2011 the applicants contacted the authorities with requests for information, but to no avail. In the autumn of 2011 the first applicant requested that she be allowed to access the investigation file. On 3 November 2011the investigators granted the request. In 2012 their close relatives and those of Mr Musa Zaurbekov contacted a local human rights NGO, which on their behalf requested various authorities to resume the investigation.
112. On 26 March 2014 the investigation was resumed.The second applicant was granted victim status and questioned by the investigators.It appears that the investigation is still pending.
I. Abdurzakova and Others v. Russia (no. 39694/12)
113. The first applicant is the sister of Mr Aslambek Abdurzakov, who was born in 1976. The second applicant is his mother and the third and fourth applicants are his children.
1. Abduction of Mr Aslambek Abdurzakov
114. At the material time, Mr Aslambek Abdurzakov was living with his family in the village of Duba-Yurt, Chechnya.
115. At about 4 a.m. on 20 July 2002 (in the documents submitted the date was also referred to as 15 May 2002) the family was at home when a large group of armed military servicemen in camouflage uniforms arrived at their house in an APC and a grey military UAZ minivan. A group of about ten servicemen broke into the house, searched the premises, forced Aslambek Abdurzakov outside, then put him in one of the vehicles and drove off to an unknown destination.
116. The same morning, at some point before the abduction, the same servicemen had broken into the house ofAslambek Abdurzakov’s neighbour, Ms Z.U.,and had shot her in the leg.
117. Sometime after the abduction the second applicant received a note, allegedly handwritten by Aslambek Abdurzakov, saying that he was detained in the Urus-Martan remand prison.
118. The whereabouts of Aslambek Abdurzakov remain unknown.
2. Official investigation
119. On 25 July 2002 the Shali district prosecutor’s office opened criminal case no. 59168 under Article 126 of the CC (abduction).
120. On 26 July 2002 the first applicant was granted victim status. She and several other witnesses to the abduction were questioned. The applicant’s submissions before the investigators were similar to her account before the Court.
121. On the same date, 26 July 2002,the investigators collected two machine-gun shells found in the house of Ms Z.U., who had been shot in the leg by the abductors. The shells were sent for a ballistics expert examination.
122. On 27 July 2002 the first applicant was questioned again. She confirmed the statement she had given previously and submitted additional information on the registration numbers of the abductors’ APC and the UAZ vehicle.
123. On the same date, 27 July 2002, the investigators questioned the second applicant, who stated, in particular, that a few days after the abduction she had seen the abductors’UAZ vehicleentering the premises of the Shatoy district police station.
124. On 25 September 2002 the investigation was suspended for failure to identify the perpetrators.The applicants were not informed thereof.
125. In 2003 the applicants complained to various authorities about the abduction and requested that an effective investigation be carried out.
126. Between 2006 and 2007 the investigation was suspended and resumed several times. The applicants were not informed of those decisions.
127. On 16 February 2008 the first applicant requested that the investigators inform her about the progress in the proceedings, and sought information from the Federal Service for the Execution of Sentences on the possible detention of Mr Aslambek Abdurzakov in Russian detention facilities.
128. On 20 June 2009 the request was granted in part. The investigators asked the Federal Service for the Execution of Sentences to inform them whether Mr Aslambek Abdurzakov had been detained in a detention facility after his abduction. The outcome of that enquiry is unknown.
129. On 5 March and 20 October 2011 the first applicant was allowed to access the investigation file.
130. On 1 March 2012 the investigation was resumed. The first applicant gave the investigators a blood sample for inclusion in thedatabase for identification of bodies found in the Chechen Republic.A month later, in April 2012, the investigation was suspended again.
131. On an unspecified date in 2012 the first applicant complained to the Shali Town Court of the investigators’ failure to take basic investigative steps. The outcome of those proceedings is unknown. It appears that the investigation is still pending.
J. Askhabayeva v. Russia (no. 79940/12)
132. The applicant is the mother of Mr Saykhan Isayev, who was born in 1984.
1. Abduction of Mr Saykhan Isayev
133. During the night between 17 and 18 January 2005 armed servicemen in camouflage uniforms and balaclavas arrived at the applicant’s village of Chechen-Aul in an APC, two UAZ- vehiclesand a Niva car. The servicemen were armed with machine guns and spoke unaccented Russian. At about 3 a.m. that night a group of about seventeen of them broke into the applicant’s house, searched the premises, violently beat up the applicant’s husband, her three sons and the pregnant wife of one of them. Then the intruderstook Mr Isayev away to an unknown destination.
134. The applicant submitted to the Court written statements of several neighbours who saw armed men entering her house and then leaving it with a man on their shoulders. As soon as they left, the neighbours entered the house, saw the injured members of the applicant’s family and learned that Saykhan Isayev had been taken away. His whereabouts remain unknown.
2. Official investigation
135. On 18 January 2005 the applicant informed the authorities of the abduction and requested assistance in the search for her son.
136. On an unspecified date a decision not to open a criminal case was taken.
137. According to the applicant, shortly after the abduction several agents from the Grozny prosecutor’s office arrived at her house in Chechen-Aul. They advised the applicant and her family not to lodge any official complaints concerning the events. Therefore, for some time after the abduction, fearing for her life and the lives of her family members, she refrained from asking the authorities to open a criminal case.
138. In May 2005 one of the witnesses to the abduction, Mr R.I., was questioned. Her statement was similar to the applicant’s account before the Court.
139. On 8 June 2005 the Grozny district prosecutor’s office opened criminalcase no. 44048 under Article 126 of the CC (abduction).
140. On 20 June 2005 the applicant was granted victim status.
141. On 18 August 2005, 25 and 27 March 2007, and 23 October 2008 several other witnesses, including the applicant’s family members present during the incident, were questioned. Their statements were similar to the applicant’s account before the Court.
142. On 8 October 2005 the investigation was suspended for failure to identify the perpetrators. On 2 March 2007 that decision was overruled as premature and the investigation was resumed. The proceedings were subsequently resumed and suspended several times, including at least four suspensions and resumptions between June 2007 and October 2010.
143. In the meantime, on 28 March 2007 two officials from the Chechen-Aul village administration were questioned. They stated, in particular, that prior to the abduction, law-enforcement agencies had made enquiries about Mr Isayev’s home address.
144. On 2 August 2010 and 24 October 2010 two of the applicant’s sons, who had witnessed the abduction, were questioned again. They confirmed the statements they had previously given to the investigators.
145. On 20 October 2010 the investigators examined the crime scene. No evidence was collected.
146. On 4 November 2010 the investigation was suspended again.
147. On 6 April 2016 the investigators resumed the proceedings in order to question the applicant and take a sample of her saliva for inclusion in a database for identification of corpses found in the Chechen Republic. It appears that the investigation is still pending.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS
148. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012).
THE LAW
I. JOINDER OF THE APPLICATIONS
149. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
II. COMPLIANCE WITH THE SIX-MONTH RULE
A. The parties’ submissions
1. The Government
150. In their observations the Government argued that the applicants had lodged their applications with the Court several years after the abduction of their relatives and more than six months after the date when they ought to have become aware of the ineffectiveness of the ensuing investigations. They pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities for a significant time, and that in several cases their representatives had unduly delayed lodging the applications with the Court. Therefore, according to the Government, the applications should be declared inadmissible as lodged “out of time”, unless the applicants were to admit that the respective investigations had been effective.
2. The applicants
151. The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time to initiate the search for their missing relatives and 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 theyhad considered the domestic investigations to be ineffective. According to them, the armed conflict which had been taking place inChechnya at the material time had led them to believe that investigative delays were inevitable. Owing to their lack of legal knowledge and financial means 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 only been with the passage of time and on account of 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 to assess the effectiveness of the proceedings.They had subsequently lodged their applications with the Court without undue delay.
B. The Court’s assessment
1. General principles
152. A summary of the principles concerning compliance with the six-month rule in disappearance cases may be found in Sultygov and Others v. Russia, nos. 42575/07and 11 others, §§ 369‑74, 9 October 2014.
2. Application of the principles to the present case
153. Turning to the circumstances of the present cases, the Court notes that in each application the applicants lodged their complaints with the Court within less than ten years of the incidents and the initiation of the related investigations (see Varnava and Others v. Turkey [GC],nos. 16064/90 and 8 others, § 166, ECHR 2009).
154. Furthermore, in each of the applications the applicants informed the authorities about the abductions either shortly after the incident, or within two weeks.
155. The authorities opened an official criminal investigation into each of those complaints; in each case the investigation wasstill pending when the application was lodged with the Court.
156. In each case at hand, the investigation was repeatedly suspended and resumed throughout the periods concerned. Each time,itwas suspended and then resumed following criticism by the supervisors. The Court notes that there were certain lulls during the proceedings.
157. In Mezhidovy v. Russia (no. 50606/08) and Zaurbekovy v. Russia (no. 27987/12) the longest periods of inactivity comprised more than five years. In Mezhidovy v. Russia (no. 50606/08) the lull in the proceedings lasted between January 2003, when the decision to suspend the investigation was taken, and September 2008 when the application was lodged with the Court. In Zaurbekovy v. Russia (no. 27987/12) the investigation was suspended in April 2007 and the application was lodged in April 2012. In both cases, for the purpose of the six-month rule, the lulls ended when the applicants lodged their applications with the Court (see paragraphs14 and 109 above and the appended table). The Court notes that in neither case were the applicants duly informed of the suspensions in the investigation andthat they remained unaware of those procedural decisions for years; nonetheless,they contacted the investigating authorities, who assured them that the search for their relatives was ongoing (see paragraphs14-16, and 110-111 above).
158. In Akhmadova and Others v. Russia (no. 2679/12) the longestlull in the proceedings took place between April 2006and July 2011, comprising five years and three months. During that period the applicants were in contact with the investigating authorities. Theyenquired about the progress in the proceedings, requested access to the case file, and challenged the decision to suspend the investigation(see paragraphs94-96 above).
159. In Abdurzakova and Others v. Russia (no. 39694/12) the longest period of inactivity in the investigation occurred between September 2002 and July 2007, lasting for about four years and ten months. From the documents submitted it transpires that the applicants were not duly informed of the decision to suspend the proceedings. Nonetheless, during the pause in the investigation they did not remain passive and attempted to intensify the search for their relative (see paragraph 125 above).
160. In Shakhidova and Others v. Russia (no. 27066/09) the longest pause in the investigationoccurred between October 2005, when the investigation was suspended, and April 2009, when the application was lodged with the Court. In the meantime the applicants contacted the investigating authorities (see paragraphs 33-34 above, and the appended table).
161. In Israilovy v. Russia (no. 58253/10), Isiyevy v. Russia (no. 52167/11),Limayevy v. Russia (no. 62560/11), Sadulayeva and Mintsaligov v. Russia (no. 77744/11), and Askhabayeva v. Russia (no. 79940/12),the lulls in the proceedings did not exceed three years and four months. The applicants maintained contact with the authorities during the breaks in the respective investigations.
162. Taking into account the overall time frame for lodging the applications, the lack of significant delays inbringing the abduction complaints to the attention of the domestic authorities, the belated notification of the applicants ofsuspension decisions in some of the cases, as well as the applicants’ efforts to resume the dormant proceedings and the complexity of the cases, along with the nature of the alleged violation, the Court concludes that it was reasonable for the applicants to have waited for developments that could have resolved crucial factual or legal issues (seeEl-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). The breaks that occurred cannot therefore be held against them or interpreted as their failure 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 had not contacted the investigating authorities for about eight years and three months, while the investigation was seemingly dormant.
163. The Court therefore concludes that the investigations in the cases at hand, albeit sporadic, were being conducted during the periods in question and that the explanations for the delays submitted by the applicants are satisfactory (see Varnava and Others, cited above,ibid.). Accordingly, the applicants have complied with the six-month rule.
III. COMPLIANCE WITH THE EXHAUSTION RULE
A. The parties’ submissions
1. TheGovernment
164. In respect of all of the applications, save forZaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no. 79940/12), 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 or other law-enforcement authorities, but that theyhad failed to do so. Accordingly, they had not exhausted domestic remedies.
2. The applicants
165. The applicants statedthat lodging complaints against the investigators would nothave 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
166. The Court has already concluded that the ineffective investigation of disappearances that occurred in Chechnya between 2000 and 2006 constitutes a systemic problem, and that criminal investigations are not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217). 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).
IV. ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
1. The Government
167. The Government did not contest the essential facts underlying each application, but submitted that the applicants’ allegations were based on assumptions.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, apart fromMr Magomed-Emin Mezhidov inMezhidovy v. Russia (no. 50606/08), whoseremains had been foundin 2010.
2. The applicants
168. 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 to 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 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.The applicants in Mezhidovy v. Russia (no. 50606/08) alleged that State agents had abducted and killed Mr Magomed-Emin Mezhidov, whose body was subsequently found in 2010.
B. The Court’s assessment
1. General principles
169. A summary of the principles concerning assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others(cited above, §§ 393‑96).
2. Application of the above principles to the present case
170. 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 as submitted by the parties, the Court finds that the applicants have presented prima facie casesthat their relatives were abducted by State agents in the circumstances set out above.The Court notes that the abductions took place in areas under State control, that specialised military vehicles, such as APCs, were involved in each incident and that 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 indeed been involved.
171. The Government have not provided a satisfactory and convincing explanation for the events in question. They have therefore failed to discharge their burden of proof.
172. Bearing in mind the general principles enumerated above, the Court finds that the applicants’ relatives were taken into custody by State agents in the course of special operations. Given the lack of any news about them since their detention and its life‑threatening nature (see paragraphs 24, 40, 54, 64, 73, 88, 103, 118, and 134 above), and the subsequent discovery of Mr Magomed-Emin Mezhidov’s body (see paragraph 11 above), the Court finds that he was killed following his unacknowledged detention by State agents and that Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov, and Mr Saykhan Isayev may be presumed dead following their unacknowledged detention.
V. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
173. The applicants complained, under Article 2 of the Convention, that their relatives had disappeared after having been detained by State agents and that the domestic authorities had failed to carry out 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
174. In all cases save for Mezhidovy v. Russia (no. 50606/08), the Government contended that Article 2 of the Convention was inapplicable to the applicants’ complaintsof abductions, which must be examined under Article 5 of the Convention. They referred to the case of Kurt v. Turkey (25 May 1998, §§ 101-09, Reports of Judgments and Decisions1998‑III).
175. The Government submitted that in any case the complaints should be rejected, because the applicants had failed to substantiate their allegations of enforced disappearances.
176. The Government further argued that the domestic investigationshad obtained no evidence that the applicants’ relatives had been held under State control or that they had been killed (except for Mr Magomed-Emin Mezhidov in Mezhidovy v. Russia (no. 50606/08)). In the case of Shakhidova and Others v. Russia, no. 27066/09,the release of Mr Zh., another village resident, demonstrated thatthe arrest of a person in Chechnya at the time did not necessarily result in his or her death. Accordingly, it could not be presumed that Mr Khamzat Shakhidov and Mr Akhyad Shakhidov were dead.
177. Lastly, 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. All necessary steps were being taken to comply with the positive obligation under Article 2 of the Convention.
178. The applicants maintained their complaints, alleging that their relatives had been abducted and intentionally deprived of their lives in circumstances that violated Article 2 of the Convention. They further argued that the investigations into the incidents had fallen short of the standards set down in the Convention and national legislation. Lastly, they noted that the Government did not provide the Court with some of the investigation files in their entirety as had been requested.
B. The Court’s assessment
1. Admissibility
179. 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
180. It is undisputed by the parties that the whereabouts of the applicants’ relatives has been unaccounted for from the time of their abduction to the lodging of the applications with the Court. The question arises as to whether, as the Government submit, Article 2 of the Convention is applicable to the applicants’ situations.
181. The Court has previously held that Article 5 of the Convention imposes an obligation on the State to account for the whereabouts of any person who has been taken into detention and who has thus been placed under the control of the authorities (see Kurt, cited above, § 124). Whether a failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on specific evidence, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV, and Ertak v. Turkey, no. 20764/92, § 131, ECHR 2000-V).
182. 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 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 under the control of State agents after abduction, then 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. The Court considers that such a situation gives rise to issues which go beyond a mere “irregular detention” in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention (see, among other authorities, Çakıcı cited above, § 86, and Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000‑VI). Accordingly, the Court finds that Article 2 of the Convention applies and that the Government’s objection in this respect should be rejected.
183. Based on the above considerations 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, and that one of them, Mr Magomed-Emin Mezhidov, had been killed by them, 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 Magomed-Emin Mezhidov, Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev.
(b) Alleged inadequacy of the investigations into the abductions
184. The Court considers that the alleged failure of the Government to submit certain documents from the investigation files does not preclude it from examining the effectiveness of the relevant criminal proceedings.
185. 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 166 above). In the cases at hand, as in many previous similar cases reviewed by the Court, the investigations have been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives. While the obligation to investigate effectively is one of means and not of results, the Court notes that each set of criminal proceedings was plagued by a combination of defects similar to those enumerated in the Aslakhanova and Othersjudgment (cited above, §§ 123‑25). Each was subjected to several decisions to suspend the investigation, followed by periods of inactivity, which further diminished the prospects of solving the crimes. No timely and thorough measures were taken to identify and question the servicemen who could have participated in the abductions.
186. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Magomed-Emin Mezhidov, Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.
VI. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION
187. 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 further argued that, contrary to Article 13 of the Convention, they had no available domestic remedies against the alleged violation of Article 2 of the Convention. The applicants in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia (no. 79940/12) 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
188. The Government contested the applicants’claims,arguing in particular that the applicants’ mental suffering had not reachedthe minimum level of severity to fall within the scope of Article 3 of the Convention. They also argued that domestic legislation provided the applicants with effective remedies for their complaints.
189. The applicants maintained their complaints.
B. The Court’s assessment
1. Admissibility
190. The Court notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
2. Merits
191. 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 lies not so much in the fact of the “disappearance” of the family member, but rather in 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 about a missing person’s death has been preceded by a sufficiently long period when he or she has been deemed to have disappeared, there exists a distinct period during which the applicants have sustained 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)).
192. The Court reiterates its findings regarding the State’s responsibility for the abductions of Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev,and the abduction and subsequent killing of Mr Magomed-Emin Mezhidov, and the failure to carry out meaningful investigations into theincidents. 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 they have 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.
193. The Court has found on several occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122). The Court also 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 paragraphs 172 and 183above), this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.
194. The Court reiterates its findings regarding the general ineffectiveness of criminal investigations in cases such as those under examination. In the absence of any results from a criminal investigation, any other possible remedy becomes inaccessible in practice.
195. 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 Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12),and Askhabayeva v. Russia (no. 79940/12) did not have at their disposal an effective domestic remedy for their grievances under Article 3, in breach of Article 13 of the Convention.
196. The Court notes that in accordance with 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 of a violation of Article 5 of the Convention (see paragraph 193 above), 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 authorities, Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015, and Aliyev and Gadzhiyeva v. Russia, no. 11059/12, § 110, 12 July 2016).
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
197. 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
198. The applicants claimed compensation for loss of financial support from the breadwinners. They submitted their calculationsas follows. The applicants in Mezhidovy v. Russia (no. 50606/08), Shakhidova and Others v. Russia (no. 27066/09), Israilovy v. Russia (no. 58253/10), Isiyevy v. Russia (no. 52167/11), Limayevy v. Russia (no. 62560/11), and Askhabayeva v. Russia (no. 79940/12) based their submissions on the subsistence level, the average monthly salary provided for by domestic law in their region, as well as the inflation rates and calculations based on the UK Ogden Actuary Tables. The applicants in Sadulayeva and Mintsaligov v. Russia (no. 77744/11),and Akhmadova and Others v. Russia (no. 2679/12) based their calculations on the national minimum wage; and the applicants in Zaurbekovy v. Russia (no. 27987/12), and Abdurzakova and Others v. Russia (no. 39694/12) based their calculations on the Court’s case-law referring to the subsistence level and the UK Ogden Actuarial Tables.
199. The first applicant in Mezhidovy v. Russia (no. 50606/08)claimed 848,918 Russian roubles (RUB) (approximately 12,260 euros (EUR)).
200. The first, second, third, fourth, fifth, and sixth applicantsin Shakhidova and Others v. Russia (no. 27066/09) claimedRUB 633,249 (approximately EUR 9,290), RUB 20,000 (approximately EUR 290), RUB 31,600 (approximately EUR 460), RUB 120,601 (approximately EUR 1,740), RUB 814,057 (approximately EUR 11,755), and RUB 151,588 (approximately EUR 2,190)respectively.
201. The first and second applicants in Israilovy v. Russia (no. 58253/10) claimed RUB 559,598 (approximately EUR 8,130), and RUB 459,414 (approximately EUR 6,675)respectively.
202. The first, second, and third applicants in Isiyevy v. Russia (no. 52167/11) claimed RUB 3,586,517(approximately EUR 48,810), RUB 1,955,294 (approximately EUR 26,610), and RUB 1,076,194(approximately EUR 14,650)respectively.
203. The first applicant in Limayevy v. Russia (no. 62560/11) claimed RUB 237,693.58 (approximately EUR 2,660)under that head.
204. The first and second applicants in Sadulayeva and Mintsaligov v. Russia (no. 77744/11) claimed EUR 18,500 and EUR 19,200 respectively.
205. The applicants in Akhmadova and Others v. Russia (no. 2679/12)claimed EUR 25,104 jointly on 11 April 2016. On 7 May 2016 they submitted their translation of just satisfaction claim, according to which, they can be understood as decreasing the amount claimed from EUR 25,104 to EUR 9,000.
206. The applicants in Zaurbekovy v. Russia (no. 27987/12) claimed EUR 70,000 jointly.
207. The applicants inAbdurzakova and Others v. Russia (no. 39694/12) claimed EUR 40,000 jointly.
208. The applicant in Askhabayeva v. Russia (no. 79940/12) claimed RUB 1,903,338 (approximately EUR 26,830).
209. The Government submitted that the applicants in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), and Shakhidova and Others v. Russia (no. 27066/09) had failed to prove that their disappeared relatives had been breadwinners. The Government also contested the applicants’ calculation of the financial losses, and pointed out that it was open to them to apply for social allowances for the loss of breadwinners.In respect of the remainder of the applications, the Government left the matter of the award to the Court’s discretion.
2. Non-pecuniary damage
210. The applicants inMezhidovy v. Russia (no. 50606/08), Shakhidova and Others v. Russia (no. 27066/09), Israilovy v. Russia (no. 58253/10), Isiyevy v. Russia (no. 52167/11), Limayevy v. Russia (no. 62560/11), and Askhabayeva v. Russia (no. 79940/12)claimed compensation for non‑pecuniary damage.They left the amount of the award to be determined by the Court at its discretion.
211. The applicants in Sadulayeva and Mintsaligov v. Russia (no. 77744/11) claimed EUR 1,000,000 jointly.
212. The applicants in Akhmadova and Others v. Russia (no. 2679/12)claimed EUR 80,000 jointly.
213. The applicants in Zaurbekovy v. Russia (no. 27987/12) claimed EUR 90,000 jointly.
214. The applicants inAbdurzakova and Others v. Russia (no. 79940/12)claimed EUR 100,000 jointly.
215. The Government left the matter of the award to the Court’s discretion.
B. Costs and expenses
216. The applicants inMezhidovy v. Russia (no. 50606/08) claimed EUR 2,803 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
217. The applicants in Shakhidova and Others v. Russia (no. 27066/09) claimed EUR 5,250 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
218. The applicants in Israilovy v. Russia (no. 58253/10) claimed EUR 7,304 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
219. The applicants in Isiyevy v. Russia (no. 52167/11) claimed EUR 2,319for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
220. The applicants in Limayevy v. Russia (no. 62560/11) claimed EUR 3,172 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
221. The applicants in Sadulayeva and Mintsaligov v. Russia (no. 77744/11) claimed EUR 5,339 jointly for legal representation before the Court, clerical expenses and translation.
222. The applicants in Akhmadova and Others v. Russia (no. 2679/12) claimed EUR 9,790 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
223. The applicants in Zaurbekovy v. Russia (no. 27987/12) claimed EUR 1,625 for legal expenses and translation.
224. The applicants inAbdurzakova and Others v. Russia (no. 39694/12) claimed EUR 2,111 for legal expenses and translation.
225. The applicant in Askhabayeva v. Russia (no. 79940/12)claimed EUR 4,901 for legal representation before the domestic authorities and the Court, administrative and postal expenses, and translation.
226. The applicants requested that the awards be paid into the bank accounts of their representatives.
227. The Government argued that in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12), and Askhabayeva v. Russia(no. 79940/12) the compensation sought by the applicants was excessive. They pointed out that in Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), and Shakhidova and Others v. Russia (no. 27066/09) some of the administrative expenses were unsubstantiated.In respect of the remainder of the applications, the Government left the matter of the award to the Court’s discretion.
C. The Court’s assessment
228. The Court reiterates that there must be a clear causal connection between the damages claimed by the applicants and the violation of the Convention, and that this may, where appropriate, include compensation for loss of earnings. The Court further finds that loss of earnings applies to the close relatives of disappeared persons, including spouses, elderly parents and minor children (see, among other authorities, Imakayeva, cited above, § 213).
229. 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.
230. 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).
231. 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
232. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holdsthat there has been a violation of Article 2 of the Convention in respect of the applicants’ relatives Mr Magomed-Emin Mezhidov, Mr Khamzat Shakhidov, Mr Akhyad Shakhidov, Mr Magomed Israilov, Mr Razambek Isiyev, Mr Movsar Limayev, Mr Musa Mintsaligov, Mr Vakhid Yakhyayev, Mr Musa Zaurbekov, Mr Aslambek Abdurzakov and Mr Saykhan Isayev;
4. Holdsthat there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate the disappearance of the applicants’ relatives;
5. Holds that there has been a violation of Article 3 of the Convention in respect of the applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering;
6. Holds that there has been a violation of Article 5 of the Convention in respect of the applicants’ relatives on account of their unlawful detention;
7. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
8. 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: Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12),and Askhabayeva v. Russia (no. 79940/12);
9. 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: Mezhidovy v. Russia (no. 50606/08), Israilovy v. Russia (no. 58253/10), Shakhidova and Others v. Russia (no. 27066/09), Zaurbekovy v. Russia (no. 27987/12), Abdurzakova and Others v. Russia (no. 39694/12),and Askhabayeva v. Russia (no. 79940/12);
10. 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;
11. Dismissesthe remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 23 October 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’s name
date of birth place of residence Kinship with the abducted person(s) |
Represented by | Pecuniary damage | Non-pecuniary damage | Costs and expenses |
| 1. | 50606/08 18/09/2008 |
1) Ms Svetlana MEZHIDOVA 04/11/1940 Avtury mother 2) Mr Magomed-Ali Mezhidov 05/02/1986 Avtury brother 3) Mr Magomed-Salakh Mezhidov 4) Mr Magomed-Sidik Mezhidov |
SRJI/ ASTREYA | EUR 6,000 (six thousandeuros) to the first applicant | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 2. | 27066/09 29/04/2009 |
1) Ms Malkan SHAKHIDOVA 03/09/1966 Makhkety wife 2) Ms Petimat Gisayeva 3) Mr Ali Shakhidov 5) Ms Sayant Abdusalamova 6) Mr Iles Shakhidov |
SRJI/ ASTREYA | EUR 4,000 (four thousand euros) to the first applicant
EUR 150 (one hundred and fiftyeuros) to the second applicant EUR 200 (two hundred euros) to the third applicant EUR 900 (nine hundred euros) to the fourth applicant EUR 6,000 (six thousand euros) to the fifth applicant EUR 1,000 (one thousand euros) to the sixth applicant |
EUR 60,000 (sixty thousand euros) to the first, second, third and fourth applicants jointly EUR 60,000 |
EUR 2,000 (two thousand euros) |
| 3. | 58253/10 01/10/2010 |
1) Ms Raisa ISRAILOVA 03/05/1954 Shali mother, passed away 2) Mr Salikh Israilov 3) Mr Buvaysar Israilov |
SRJI/ ASTREYA | – | EUR 60,000 (sixty thousand euros) to the third applicant |
EUR 2,000 (two thousand euros) |
| 4. | 52167/11 11/08/2011 |
1) Ms Taus ISIYEVA 22/11/1956 Argun mother 2) Ms Zarema Isiyeva 3) Ms Amina Isiyeva |
SRJI/ ASTREYA | EUR10,000 (ten thousand euros) to the first and second applicants each
EUR 6,000 (six thousand euros) to the third applicant |
EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 5. | 62560/11 19/02/2009 |
1)Ms Akimat LIMAYEVA 05/01/1940 Mesker-Yurt mother 2) Mr Magomed Limayev |
SRJI/ ASTREYA | EUR 1,500 (one thousand five hundred euros) to the first applicant | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 6. | 77744/11 28/11/2011 |
1) Ms Raisa SADULAYEVA 30/04/1976 Valerik wife 2) Mr Saykhan Mintsaligov |
Mr Dokka ITSLAYEV | EUR6, 000 (sixthousand euros) to the first and second applicants each | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 2,000 (two thousand euros) |
| 7. | 2679/12 21/12/2011 |
1) Ms Roza AKHMADOVA 28/05/1963 Goyty wife 2) Mr Ramzan Yakhyayev 3) Mr Apti Yakhyayev |
Materi Chechni | EUR4,500 (four thousand five hundred euros) to the applicants jointly | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 1,000 (one thousand euros) |
| 8. | 27987/12 18/04/2012 |
1) Ms Ayna ZAURBEKOVA 14/09/1963 Grozny sister 2) Ms Roza Zaurbekova 3) Ms Zareta Zaurbekova 4) Ms Petimat Zaurbekova 5) Mr Yusup Zaurbekov 6) Mr Ramzan Zaurbekov 7) Ms Rebat Zaurbekova |
Mr Tagir Shamsudinov | EUR30,000 (thirty thousand euros) to the applicants jointly | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 1,000 (one thousand euros) |
| 9. | 39694/12 29/05/2012 |
1) Ms Asyat ABDURZAKOVA 07/06/1973 Novye Atagi sister 2) Ms Salmatu Abdurzakova 3) Mr Ramzan Abdurzakov 4) Ms Milana Musayeva |
Mr Tagir Shamsudinov | EUR20,000 (twenty thousand euros) to the applicants jointly | EUR 60,000 (sixty thousand euros) to the applicants jointly |
EUR 1,000 (one thousand euros) |
| 10. | 79940/12 07/12/2012 |
Tamus ASKHABAYEVA 13/09/1957 Chechen-Aul mother |
SRJI/ ASTREYA | EUR10,000 (ten thousand euros) | EUR 60,000(sixty thousand euros) | EUR 2,000 (two thousand euros) |
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