BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF
ASTAMIROVA AND OTHERS v. RUSSIA
(Application
no. 27256/03)
JUDGMENT
STRASBOURG
26 February 2009
FINAL
14/09/2009
This
judgment may be subject to editorial revision.
In the case of Astamirova and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 5 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27256/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by seven Russian nationals, listed below (“the
applicants”), on 11 July 2003.
- The
applicants were represented by lawyers of the Stichting Russian
Justice Initiative (“SRJI”), an NGO based in the
Netherlands with a representative office in Russia. The Russian
Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- The
applicants alleged that their relative had disappeared after being
detained by servicemen in Chechnya on 5 August 2002. They
complained under Articles 2, 3, 5, 13 and 14.
- On
29 August 2004 the President of the First Section decided to grant
priority to the application under Rule 41 of the Rules of Court.
- By
a decision of 13 March 2008, the Court declared the application
partly admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are relatives. They are:
Ms Rumisa Zayndyevna
Astamirova, born in 1978;
Ms Zoya Khamzatovna
Astamirova, born in 1944;
Ms Roza Zayndyevna
Astamirova, born in 1970;
Ms Petimat Shaitovna
Algiriyeva, born in 1976;
Ms Kheda
Aslanbekovna Algiriyeva, born in 2001;
Ms Dinara
Aslanbekovna Algiriyeva, born in 2003;
Ms Raisa Zayndyevna
Astamirova, born in 1968.
- They
live in the village of Gekhi, in the Urus-Martan district of
Chechnya.
A. The applicants’ relative’s arrest
- The
first, third and seventh applicants are sisters of Aslanbek
Zayndyevich Astamirov (born in 1974). The second applicant is
Aslanbek Astamirov’s mother. The fourth applicant is his wife,
and the fifth and sixth applicants are their daughters (the sixth
applicant was born in March 2003). The seventh applicant is deaf
mute. The applicants submitted that their relative Aslanbek Astamirov
had suffered from TB for the previous seven years and that he had
been in need of regular medical assistance.
- The
applicants live in their own six-room house at 45 Sheripova Street in
the village of Gekhi, in the Urus-Martan district. In the same
courtyard there is another house, owned by the family of Aslanbek
Astamirov’s brother, Alkha A.
- According
to the applicants’ submissions, on 5 August 2002 at around
3 a.m. a group of about thirty masked men in blue camouflage
uniforms forcibly entered the applicants’ house. The applicants
believed that they were servicemen, as they were armed with machine
guns and spoke Russian without an accent. The servicemen did not
produce identity papers or any documents to justify their actions and
gave no explanations.
- The
fourth applicant submitted that she had been sleeping in the room
with her husband, Aslanbek Astamirov, and their daughter, the fifth
applicant. The first applicant, Aslanbek Astamirov’s sister,
and her two daughters had been in another room, and the second and
seventh applicants had been sleeping in another room.
- The
fourth applicant submitted that she had been woken at 3 a.m. by
the sound of Russian being spoken in their courtyard. Then the door
to their room opened and four or five men in camouflage and masks,
armed with automatic weapons, rushed into the room. They shouted “Lie
down” and approached the fourth applicant’s husband. One
of the servicemen pushed the fourth applicant against the wall and
she fell down. Another serviceman gave her the crying child and
ordered her to calm her down and to remain seated.
- The
men tied Aslanbek Astamirov’s hands behind his back and
escorted him out of the room. They took along his slippers, trousers
and a shirt. Two men remained in the room and searched it, but did
not take anything. One of them found Aslanbek Astamirov’s
passport and took it with him. Then the fourth applicant was
permitted to come out of her room and into the courtyard, where she
saw her sisters-in-law and mother-in-law. The servicemen were leaving
and told them to be quiet. About five minutes later the electricity
went off in the village and the applicants returned to the house.
They submitted that the intruders had remained in their house for
about twenty to twenty-five minutes.
- The
first applicant submitted that about five minutes after the men and
her brother had left they had heard the sound of a military Ural
truck leaving from the direction of the main road. They did not
follow the armed men into the street because there was no electricity
and because they were afraid.
- The
applicants submitted that the following morning the neighbours told
them that they had seen an armoured personnel carrier (APC) and a
military all-terrain UAZ vehicle in the village. They also submitted
that both exits from the village on the main road were controlled by
the Russian military and that there was a curfew in place, so no
movement of vehicles or of such a large group was possible without
the knowledge of the personnel at the roadblocks. The applicants
submitted a copy of the published order of the Urus-Martan district
military commander no. 263 of 25 September 2001 by which a
curfew had been established in the district between 8 p.m. and
6 a.m.
- The
applicants have had no news of Aslanbek Astamirov since 5 August
2002.
- The
Government in their observations did not challenge most of the facts
as presented by the applicants. They stated that it had been
established that on 5 August 2002 at about 3 a.m. unidentified
men wearing camouflage uniforms and armed with automatic weapons had
entered the applicants’ house and taken Aslanbek Astamirov away
to an unknown destination. His whereabouts could not be established.
The Government objected to the term “servicemen” used by
the applicants because in their opinion there were no grounds to
believe that the persons who had apprehended Mr Astamirov were
servicemen of the Russian Federation.
- The
Government also disputed the applicants’ reference to the
presence of military vehicles on that night. They argued that the
statements taken during the investigation from the victims of and
witnesses to the crime had not mentioned military vehicles. The
Government did not submit copies of any of the statements to which
they referred (see below).
B. The search for Aslanbek Astamirov and the investigation
- Immediately
after Aslanbek Astamirov’s abduction the applicants started
looking for him. In the morning of 5 August 2002 the first and second
applicants, accompanied by Alkha A. and another man, went to
Urus-Martan. They approached the district military commander’s
office, the head of the district administration and other
authorities, but did not find out anything about their missing
relative. After that for about two weeks the applicants and their
relatives continued to travel daily to Urus-Martan in the hope of
finding out about Aslanbek Astamirov, but also in the hope that he
would be released because, as the first applicant submitted, they
were certain that he had been detained by mistake. The first
applicant also submitted that they had been afraid to ask for a
criminal investigation because they thought it could have harmed her
brother. According to the first applicant, they only submitted an
application to the prosecutor’s office two weeks after the
arrest.
- On
numerous occasions, both in person and in writing, the applicants
applied to prosecutors at various levels, to the Ministry of the
Interior, to the administrative authorities and to public figures.
The first applicant went to look at unidentified bodies found in
Urus-Martan and in Grozny on several occasions. In the letters to the
authorities the applicants stated the facts of Mr. Astamirov’s
disappearance and asked for assistance and details of the
investigation. Most of these enquiries remained unanswered, and the
rest received only formal replies by which the respective requests
were forwarded to various prosecutors’ offices “for
examination”. The applicants did not retain copies of all the
letters, especially during the first months following the
apprehension, but they submitted a number of them to the Court. Below
is a summary of their correspondence with the authorities.
- On
10 November 2002 the second applicant wrote to the Prosecutor
General’s Office, to the South Federal Circuit Department of
the Prosecutor General’s Office, to the military prosecutor of
Chechnya, to the National Public Commission for Investigation of
Offences and Protection of Human Rights in the North Caucasus
(Национальная
общественная
комиссия
по расследованию
правонарушений
и соблюдению
прав
человека
на Северном
Кавказе)
and to the member of the State Duma for Chechnya. She stated the
details of her son’s disappearance and asked for assistance in
finding him. She stressed that Aslanbek Astamirov was suffering from
TB and was in need of medical help. She mentioned that she had
applied to the Urus-Martan district prosecutor’s office but
that she had received no news about the missing man.
- On
20 November 2002 the Urus-Martan district prosecutor’s office
(the district prosecutor’s office) forwarded the second
applicant’s complaint to the Urus-Martan district department of
the interior (ROVD) for a check.
- On
6 December 2002 (or on 1 January 2003 – see below) the district
prosecutor’s office opened criminal investigation file
no. 34001 into the abduction of Aslanbek Astamirov on 5 August
2002 by unidentified armed persons wearing camouflage uniforms and
masks. An investigation was opened into a kidnapping committed by a
group under Article 126 part 2 of the Criminal Code.
- On
12 December 2002 the Urus-Martan district prosecutor’s office
summoned Maret T., the wife of Alkha A., for questioning as a
witness.
- On
13 January 2003 the first applicant was granted victim status in the
criminal investigation into her brother’s abduction.
- On
20 January 2003 the military prosecutor of military unit no. 20102
(based in Khankala, the main Russian military base in Chechnya)
informed the second applicant that the investigation should be
conducted by the local district prosecutor’s office, unless it
had been established that servicemen of the Ministry of Defence or of
the Interior Troops of the Ministry of the Interior had been
implicated in the crime.
- On
7 April 2003 the first applicant asked the district prosecutor’s
office to provide her with an update on criminal investigation
no. 34001 into her brother’s abduction.
- On
3 June 2003 the Chechnya prosecutor’s office forwarded a
complaint by the fourth applicant of inefficiency of the
investigation to the district prosecutor’s office and
instructed them to inform the Chechnya prosecutor’s office
about the investigation into the abduction.
- On
20 June 2003 the district prosecutor’s office informed the SRJI
that on 1 March 2003 the investigation in criminal case no. 34001
had been suspended due to failure to identify the culprits. The
letter also stated that the ROVD had been instructed to take “active
measures” to solve the crime.
- On
29 September 2003 the first applicant wrote to the district
prosecutor’s office and asked him to grant her access to case
file no. 34001.
- On
17 December 2003 and on 6 January 2004 the Chechnya prosecutor’s
office informed the SRJI, in identical wording, that the criminal
investigation into Aslanbek Astamirov’s abduction had been
opened by the district prosecutor’s office on 1 January 2003
and suspended on 1 March 2003. On 15 December 2003 the
investigation had been reopened and all the necessary steps taken to
find Mr. Astamirov and to identify the culprits.
- On
16 February 2004 the SRJI requested the Chechnya and the district
prosecutors’ offices to clarify if the criminal investigation
into the abduction of Aslanbek Astamirov had been opened on 6
December 2002 or on 1 January 2003. They also asked them to inform
them about the progress of the investigation.
- On
23 June 2005 the SRJI, acting on the second applicant’s behalf,
again asked the district prosecutor’s office to give them
information about the date on which the criminal investigation had
been opened, to inform them about the progress of the proceedings and
to allow the second applicant, as a victim, to access the case file.
- On
12 July 2005 the district prosecutor’s office informed the
second applicant and the SRJI that the investigation into the crime
was ongoing and that she could access the case file at that office.
- The
applicants submitted that they received no further information about
the investigation into Aslanbek Astamirov’s abduction and that
they were not aware of the exact date on which the case had been
opened.
- The
applicants submitted that as a result of the severe stress following
her son’s disappearance the health of the second applicant had
deteriorated significantly and that she had often been forced to
remain in bed.
C. Information from the Government
- In
their observations the Government did not dispute the information
concerning the investigation of the abduction of Aslanbek Astamirov
as presented by the applicants. Relying on information obtained from
the General Prosecutor’s Office, they referred to a number of
other procedural steps taken by the investigation which had not been
mentioned by the applicants. However, despite specific requests from
the Court, the Government did not submit copies of most of the
documents to which they referred (see below). In reply to the Court’s
requests, the Government submitted the following information
concerning the progress of the investigation.
- The
criminal investigation into Mr Astamirov’s abduction had been
opened on 1 January 2003 by the district prosecutor’s office.
- The
first applicant had been questioned by the investigators on
13 January 2003, and then again on unspecified dates. On 13
January 2003 she had been granted the status of a victim in the
criminal proceedings related to her brother’s abduction.
According to the Government, the first applicant stated that she and
other family members had not been subjected to violence and that no
valuables had been taken from the house. She also stated that they
had not seen the vehicles used by the abductors.
- Furthermore,
the Government stated that on 28 July 2005 the investigators had
questioned and granted victim status to the second applicant, the
mother of Aslanbek Astamirov. According to the Government, she stated
that she had not applied to the law-enforcement bodies for several
months because they had been hoping that her son would come back. She
also stated that the abductors had not damaged the door to the house
and had not fired any shots.
- According
to the Government, the fourth applicant was questioned on 9 January
2003. She stated that on 5 August 2002 at about 3 a.m.
unknown armed and masked men had burst into their house and taken
away her husband. He had been allowed to dress. No valuables had been
taken. She was again questioned in July 2006, when she specified that
the men who had entered their home and taken away her husband had
also taken away his passport and driving licence.
- The
Government stated that on 10 January 2003 Markha T., Aslanbek
Astamirov’s sister-in-law, had been questioned and had
confirmed the latter’s abduction.
- According
to the Government, another family member was questioned in July 2006
and stated that one of the men who had intruded into their house on 5
August 2002 had been armed with a sniper’s rifle. She added
that she would be unable to identify any of them since all the men
had been wearing masks.
- The
Government submitted that in March and April 2006 the investigators
had questioned at least seven of the applicants’ neighbours,
who had stated that on the night in question they had seen a group of
armed and masked men walking down Sheripova Street. They had not seen
any special vehicles or cars around. Later they had learnt of
Aslanbek Astamirov’s abduction. In July 2006 one neighbour was
questioned and submitted that on the night of 5 August 2003 he had
heard the sound of engines in the street and had seen a group of
about ten persons wearing black uniforms and masks and walking along
Sheripova Street towards the Astamirovs’ house. The
investigators questioned another four neighbours in July 2006, who
had not heard anything on that night.
- Also
in April 2006 the investigators questioned the former head of
administration of Urus-Martan district. He stated that he had
received a lot of inquiries from relatives of missing persons, but he
could not recall the applicants’ case.
- According
to the Government, the investigators also requested information about
Mr Astamirov’s disappearance from various State
authorities. On 19 December 2003 the Urus-Martan district department
of the Federal Security Service stated that their office had not
detained Mr Astamirov nor carried out a criminal investigation
into his activities. The Ministry of the Interior of Chechnya also
replied on an unspecified date that their agents had not detained the
applicants’ relative and had not carried out any investigation
in respect of him. Also on unspecified dates all the district
departments of the interior in Chechnya informed the investigation
that they had never detained or delivered Aslanbek Astamirov to a
temporary detention facility. On 4 February 2006 the remand centre in
Chechnya IZ-20/1 informed the investigation that the missing man had
never been detained there. In April 2006 the pre-trial detention
centres of the Southern Federal Circuit informed the investigators
that Mr Astamirov had not been detained in any of them.
- After
April 2006 various bodies of the interior and the headquarters of the
United Group Alliance (UGA) informed the investigators that they had
no information about a special operation in Gekhi on 5 August 2002.
- The
investigation failed to establish the whereabouts of Mr Aslanbek
Astamirov. The investigation found no evidence to support the
involvement of the “special branches” (специальных
подразделений)
in the crime. The law enforcement authorities of Chechnya had never
arrested or detained Mr Astamirov on criminal or administrative
charges and had not carried out a criminal investigation in his
respect. No special operations had been carried out in respect of the
applicants’ relative.
- The
Government also noted that the investigation had found no grounds to
support the fourth applicant’s allegations that she had been
ill-treated during the arrest of her husband.
- As
to the applicants’ complaint about inability to access the case
file, the Government noted that the victims had the right to access
the materials of the investigation in full after the investigation
had been completed. Since the investigation had still been ongoing,
and at times had been suspended, the victims could not be granted
access to the entire case file. Furthermore, the Government noted
that in July 2005 the applicants and their representatives had been
invited to access the available documents from the case file at the
district prosecutor’s office.
- The
Government stated that the investigation into the abduction of
Aslanbek Astamirov had been suspended and reopened a number of times.
The latest decision to reopen the proceedings had been taken on 21
March 2008. The applicants had been duly informed of these
developments. The investigation was under the control of the
Prosecutor General’s Office.
- Despite
specific requests by the Court the Government did not submit a copy
of the file in criminal case no. 34001, providing only copies of
decisions to suspend and resume the investigation and to grant victim
status, as well as of the notifications to the applicants of the
suspension and reopening of the proceedings. Relying on the
information obtained from the Prosecutor General’s Office, the
Government stated that the investigation was in progress and that
disclosure of the documents would be in breach of Article 161 of the
Russian Code of Criminal Procedure, since the file contained
information of a military nature and personal data concerning the
witnesses or other participants in the criminal proceedings.
II. RELEVANT DOMESTIC LAW
- For
a summary of relevant domestic law see Akhmadova and Sadulayeva v.
Russia, no. 40464/02, § 67-69, 10 May 2007.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
A. Arguments of the parties
55
The Government contended that the application should be declared
inadmissible for non-exhaustion of domestic remedies. They noted in
this regard that the investigation into the abduction of the
applicants’ relative had not yet been completed. They submitted
that the applicants had not made use of the rights accorded to them
as victims in criminal proceedings, such as lodging applications and
requests with the investigators or a court. They could have appealed
to a court the investigators’ decisions. The applicants were
furthermore entitled to sue the investigation bodies in civil
proceedings for pecuniary and non-pecuniary damage.
- The
applicants disputed the Government’s objection. They argued
that the criminal investigation had proved to be ineffective and that
their complaints to that effect had been futile. They also alleged
the existence of an administrative practice of non-investigation of
crimes committed by State servicemen in Chechnya and referred to the
other cases concerning such crimes reviewed by the Court, as well as
reports of various NGOs and international bodies.
B. The Court’s assessment
- In
the present case, the Court took no decision about the exhaustion of
domestic remedies at the admissibility stage, having found that this
question was too closely linked to the merits. It will now proceed to
examine the arguments of the parties in the light of the provisions
of the Convention and its relevant practice (for a relevant summary,
see Estamirov and Others v. Russia, no. 60272/00, § 73-74,
12 October 2006).
- The
Court notes that the Russian legal system provides, in principle, two
avenues of recourse for the victims of illegal and criminal acts
attributable to the State or its agents, namely civil and criminal
remedies.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, the
Court has already found in a number of similar cases that this
procedure alone cannot be regarded as an effective remedy in the
context of claims brought under Article 2 of the Convention (see
Khashiyev and Akayeva v. Russia, nos. 57942/00 and
57945/00, §§ 119-121, 24 February 2005, and Estamirov
and Others, cited above, § 77). In the light of the
above, the Court confirms that the applicants were not obliged to
pursue civil remedies. The preliminary objection in this regard is
thus dismissed.
- As
regards criminal law remedies, the Court observes that the applicants
complained to the law enforcement authorities after the detention of
Aslanbek Astamirov and that an investigation has been pending since
December 2002. The applicants and the Government dispute the
effectiveness of this investigation.
- The
Court considers that this limb of the Government’s preliminary
objection raises issues concerning the effectiveness of the criminal
investigation which are closely linked to the merits of the
applicants’ complaints. Thus, it considers that these matters
fall to be examined below under the substantive provisions of the
Convention.
II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE
ESTABLISHMENT OF THE FACTS
A. The parties’ arguments
- The
applicants submitted that the representatives of the State should be
held responsible for the unlawful detention and killing of Aslanbek
Astamirov. They stated that since their relative had been missing for
a very lengthy period, it could be presumed that he was dead. That
presumption was further supported by the circumstances in which he
had been arrested, which should be recognised as life-threatening.
The applicants contended that their relative had been detained within
the context of a security operation. In support of their complaint
they referred to the facts that the men had spoken Russian without
any accent, worn camouflage uniforms and were armed with automatic
weapons. Moreover, the men had arrived late at night, which indicated
that they were able to circulate freely during the curfew, despite
the presence of roadblocks in the village. They also stated that the
Government’s failure to produce the documents from the case
file or to provide a plausible explanation of the events had put the
burden of proof on the Government, who should be obliged to prove
that their agents were not responsible for the arbitrary detention
and killing of Mr Astamirov.
- In
their observations submitted in April 2006 the Government submitted
that on 5 August 2002 “unidentified masked men in
camouflage uniforms armed with machine guns” had abducted
Aslanbek Astamirov. They further contended that the investigation
into the incident was still pending, that there was no evidence that
the men had been State agents and that there were therefore no
grounds for holding the State liable for the alleged violations of
the applicants’ rights. No information had been obtained by the
investigation about special operations in Gekhi on that day. They
also referred to some other criminal investigations where gangs in
Chechnya had been equipped with camouflage uniforms, weapons and
forged documents belonging to members of the security forces.
Finally, in their submissions of May 2008 the Government questioned
the credibility and accuracy of the applicants’ statements
submitted to the Court and to the investigation. They drew attention
to the fact that the fourth applicant had submitted to the Court that
the men who had entered their room had pushed her against the wall,
while she did not give this information to the investigation. They
also noted certain discrepancies in the description of the clothes
Mr Astamirov had been wearing upon detention in their witness
statements given to the investigation. They also noted
inconsistencies in the descriptions by the applicants and witnesses
of the clothes and weapons of the intruders given to the Court and to
the investigation. The Government concluded that the applicants’
submissions were so confused and contradictory that they had probably
been invented by them. In any event, they could not constitute a
basis for making findings of State responsibility according to the
standards developed by the Court. It could not be excluded that
Aslanbek Astamirov had voluntarily left the village or escaped,
especially in view of the relatives’ failure to apply to the
authorities immediately after his alleged arrest.
B. Article 38 § 1 (a) and consequent
inferences drawn by the Court
- The
Court has on many occasions reiterated that the Contracting States
are required to furnish all necessary facilities to the Court and
that a failure on a Government’s part to submit information
which is in their hands without a satisfactory explanation may
reflect negatively on the level of compliance by a respondent State
with its obligations under Article 38 § 1 (a)
of the Convention (see Timurtaş v. Turkey, no.
23531/94, § 66, ECHR 2000-VI).
- In
the present case the applicants alleged that their relative had been
illegally arrested by the authorities and then disappeared. They also
alleged that no proper investigation had taken place. In view of
these allegations, the Court asked the Government to produce
documents from the criminal investigation file opened in relation to
the kidnapping. The evidence contained in that file was regarded by
the Court as crucial to the establishment of the facts in the present
case.
- The
Government refused to disclose almost all the documents of substance
from the criminal investigation file, relying on Article 161 of the
Code of Criminal Procedure. The Government also argued that the
Court’s procedure contained no guarantees of the
confidentiality of documents, in the absence of sanctions for
applicants in the event of a breach of confidentiality. They also
argued that the applicants were represented by foreign nationals who
could not be brought to account in Russia in the event of such a
breach.
- The
Court notes that the Government did not request the application of
Rule 33 § 2 of the Rules of Court, which permits a
restriction on the principle of the public character of documents
deposited with the Court for legitimate purposes, such as the
protection of national security and the private life of the parties,
as well as the interests of justice. The Court cannot speculate as to
whether the information contained in the criminal investigation file
in the present case was indeed of such a nature, since the Government
did not request the application of this Rule and it is the obligation
of the party requesting confidentiality to substantiate its request.
- The
Court further notes that it has already found on a number of
occasions that the provisions of Article 161 of the Code of Criminal
Procedure do not preclude disclosure of documents from a pending
investigation file, but rather set out a procedure for and limits to
such disclosure (see Mikheyev v. Russia, no. 77617/01,
§ 104, 26 January 2006, and Imakayeva v. Russia,
no. 7615/02, § 123, ECHR 2006 ... (extracts)).
For these reasons the Court considers the Government’s
explanation insufficient to justify the withholding of the key
information requested by the Court.
- Referring
to the importance of a respondent government’s cooperation in
Convention proceedings, the Court notes that there has been a breach
of the obligations laid down in Article 38 § 1 (a)
of the Convention to furnish all necessary facilities to the Court in
its task of establishing the facts.
C. The Court’s evaluation of the facts
- The
Court observes that it has developed a number of general principles
relating to the establishment of facts in dispute, in particular when
faced with allegations of disappearance under Article 2 of the
Convention (for a summary of these, see Bazorkina v. Russia,
no. 69481/01, §§ 103-109, 27 July 2006). The Court
also notes that the conduct of the parties when evidence is being
obtained has to be taken into account (see Ireland v. the United
Kingdom, cited above, pp. 64-65, § 161). In view of this and
bearing in mind the principles referred to above, the Court finds
that it can draw inferences from the Government’s conduct in
respect of the well-foundedness of the applicants’ allegations.
The Court will thus proceed to examine crucial elements in the
present case that should be taken into account when deciding whether
the applicants’ relative can be presumed dead and whether his
death can be attributed to the authorities.
- The
applicants alleged that the persons who had taken Aslanbek Astamirov
away on 5 August 2002 had been State agents.
- The
Government seemed to suggest in their submission that the persons who
had detained Aslanbek Astamirov could be members of paramilitary
groups. They also alleged, alternatively, that he could have left his
home on his own. However, these allegations were not specific and
they did not submit any material to support them. The Court would
stress in this regard that the evaluation of the evidence and the
establishment of the facts is a matter for the Court, and it is
incumbent on it to decide on the evidentiary value of the documents
submitted to it (see Çelikbilek v. Turkey,
no. 27693/95, § 71, 31 May 2005).
- The
Court notes that, on the contrary, the applicants’ version of
the events is supported by their statements and by the information
collected by the investigation. The applicants and the neighbours
stated that the perpetrators had acted in a manner similar to that of
a security operation – they had checked the residents’
passports and they had spoken Russian among themselves and to the
applicants. Some witnesses also referred to the use of military
vehicles such as APCs, which would not have been available to
paramilitary groups (see paragraph 16 above). In their applications
to the authorities the applicants consistently maintained that their
relative had been detained by unknown servicemen and requested the
investigation to look into that possibility.
- The
Court finds that the fact that a large group of armed men in uniform
during curfew hours, equipped with military vehicles, was able to
move freely through military roadblocks and proceeded to check
identity documents and to arrest a person at his home in a town area
strongly supports the applicants’ allegation that these were
State servicemen. The domestic investigation also accepted factual
assumptions as presented by the applicants and took steps to check
the involvement of law-enforcement bodies in the arrest. The
investigation was unable to establish which precise military or
security units had carried out the operation, but it does not appear
that any serious steps were taken in that direction.
- The
Court observes that where the applicants make out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to the lack of relevant documents, it is for the Government to
argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicants, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005, and Akkum and Others v. Turkey,
no. 21894/93, § 211, ECHR 2005 II).
- The
Government questioned the credibility of the applicants’
statements in view of some discrepancies related to the details of
the intruders’ and the detained man’s clothes and the
descriptions of the exact sequence of events during the detention.
However, the Court reiterates that the witness statements of the
applicants and of the neighbours to which the Government refers have
not been submitted to the Court. It is therefore unable to evaluate
their accuracy and consistency. As to the minor inconsistencies noted
by the Government in the applicants’ submissions to the Court,
in the Court’s view, the fact that after several years the
applicants’ statements differed in rather insignificant details
in the recollection of an extremely traumatic and stressful event,
does not in itself suffice to cast doubt on the overall veracity of
their statements.
- Taking
into account the above elements, the Court is satisfied that the
applicants have made a prima facie case that their relative was
detained by State servicemen. The Government’s statement that
the investigation did not find any evidence to support the
involvement of the special forces in the abduction is insufficient to
discharge them from the above-mentioned burden of proof. Drawing
inferences from the Government’s failure to submit the
documents which were in their exclusive possession or to provide
another plausible explanation of the events in question, the Court
considers that Aslanbek Astamirov was arrested on 5 August 2002
at his house in Gekhi by State servicemen during an unacknowledged
security operation.
- There
has been no reliable news of the applicants’ relative since
5 August 2002. His name has not been found in any official
detention facilities’ records. Finally, the Government did not
submit any explanation as to what had happened to him after his
arrest.
- The
Court notes with great concern that a number of cases have come
before it which suggest that the phenomenon of “disappearances”
is well known in Chechnya (see, among others, Bazorkina, cited
above; Imakayeva, cited above; Luluyev and Others v.
Russia, no. 69480/01, ECHR 2006 ... (extracts);
Baysayeva v. Russia, no. 74237/01, 5 April 2007;
Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva
v. Russia, no. 68007/01, 5 July 2007). The
Court has already found that, in the context of the conflict in
Chechnya, when a person is detained by unidentified servicemen
without any subsequent acknowledgment of the detention, this can be
regarded as life-threatening. The absence of Aslanbek Astamirov or of
any news of him for over six years supports this assumption. For the
above reasons the Court considers that it has been established that
he must be presumed dead following unacknowledged detention by State
servicemen.
- Furthermore,
in a case involving disappearance, the Court finds it particularly
regrettable that there should have been no thorough investigation of
the relevant facts by the domestic prosecutors or courts. The few
documents submitted by the Government from the investigation file
opened by the district prosecutor do not suggest any progress in
several years and if anything show the incomplete and inadequate
nature of those proceedings. Moreover, the stance of the prosecutor’s
office and the other law-enforcement authorities after the news of
his detention had been communicated to them by the applicants
contributed significantly to the likelihood of the disappearance, as
no necessary steps were taken in the crucial first days and weeks
after the arrest. The authorities’ behaviour in the face of the
applicants’ well-substantiated complaints gives rise to a
strong presumption of at least acquiescence in the situation and
raises strong doubts as to the objectivity of the investigation.
- For
the above reasons the Court considers that Aslanbek Astamirov must be
presumed dead following his unacknowledged detention by State
servicemen.
III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained under Article 2 of the Convention that their
relative had disappeared after having been detained by Russian
servicemen and that the domestic authorities had failed to carry out
an effective investigation of the matter. Article 2 reads:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
A. The alleged violation of the right to life of
Aslanbek Astamirov
- The
Court has already found that the applicants’ relative must be
presumed dead following unacknowledged arrest by State servicemen and
that the death can be attributed to the State. In the absence of any
justification in respect of the use of lethal force by State agents,
the Court finds that there has been a violation of Article 2 in
respect of Aslanbek Astamirov.
B. The alleged inadequacy of the investigation of the
abduction
- As
regards the procedural obligation under Article 2, the applicants
argued that even though an investigation had been mounted into the
disappearance, it was inefficient and the authorities had been unable
to demonstrate any progress over a period of several years. A number
of important steps had been taken too late, or not taken at all, such
as identifying and questioning the State agents who could have been
involved in the abduction. The applicants had had no opportunity to
acquaint themselves with the case file. The applicants invited the
Court to draw conclusions from the Government’s unjustified
failure to submit the documents from the case file to them or to the
Court.
- The
Government claimed that the investigation of the disappearance of the
applicants’ relative met the Convention requirement of
effectiveness, as all measures envisaged in national law were being
taken to identify the perpetrators. They argued that the applicants
had been granted victim status and had had every opportunity to
participate effectively in the proceedings.
- The
Court has on many occasions stated that the obligation to protect the
right to life under Article 2 of the Convention also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the
use of force. It has developed a number of guiding principles to be
followed for an investigation to comply with the Convention’s
requirements (for a summary of these principles see Bazorkina,
cited above, §§ 117-119).
- In
the present case, an investigation of the abduction was carried out.
The Court must assess whether that investigation met the requirements
of Article 2 of the Convention.
- The
Court notes at the outset that most of the documents from the
investigation were not disclosed by the Government. It therefore has
to assess the effectiveness of the investigation on the basis of the
few documents submitted by the parties and the information about its
progress presented by the Government.
- Turning
to the facts of the case, the Court notes that the applicants submit
that they had immediately approached the authorities after the arrest
of their family member, though they did not submit a formal complaint
to the district prosecutor’s office until two weeks after the
event. Although the exact date of their application is unclear, on 10
November 2002 the second applicant wrote to a number of authorities
and complained of inaction on the part of the district prosecutor’s
office. The investigation was opened on 1 January 2003 (some
documents contained the date of 6 December 2002). Thus, the criminal
proceedings into the alleged kidnapping started almost five months
after the event occurred. Even though some of the initial delay can
be attributed to the applicants, such a slow response from the
law-enforcement bodies once the news of Aslanbek Astamirov’s
detention had become known to them remains without any explanation.
This delay in itself was liable to affect the investigation of a
crime such as abduction in life-threatening circumstances. It also
appears that once the investigation was commenced, the first and
fourth applicants as well as another female relative were questioned.
The first applicant was granted victim status. However, it appears
that after that a number of crucial steps were delayed and were
eventually taken only after the communication of the complaint to the
respondent Government, or not at all.
- In
particular, the Court notes that, as it appears from the information
submitted by the Government, other relatives and witnesses of the
events were only questioned in July 2005 and then in 2006. An
official from the Urus-Martan district administration was questioned
in April 2006. Information from military and law-enforcement bodies
was collected in December 2003 and then in 2006.
- It
is obvious that these measures, if they were to produce any
meaningful results, should have been taken immediately after the
crime was reported to the authorities, and as soon as the
investigation commenced. These delays, for which there has been no
explanation in the instant case, not only demonstrate the
authorities’ failure to act of their own motion but also
constitute a breach of the obligation to exercise exemplary diligence
and promptness in dealing with such a serious crime (see Paul and
Audrey Edwards v. the United Kingdom, no. 46477/99, § 86,
ECHR 2002-II).
- A
number of essential steps were never taken. Most notably, it does not
appear that the investigation tried to identify and question the
servicemen who had manned the roadblocks controlling the entry and
exit to the village, or that they had tried to contact the military
authorities in order to find out whether any special operations had
been carried out in Gekhi.
- The
Court also notes that even though the first and second applicants
were granted victim status, they were only informed of the
adjournment and reopening of the proceedings, and not of any other
significant developments. Accordingly, the investigators failed to
ensure that the investigation received the required level of public
scrutiny, or to safeguard the interests of the next of kin in the
proceedings.
- Finally,
the Court notes that the investigation was adjourned and resumed a
number of times and that there were long periods of inactivity during
the years when it was pending.
- The
Government raised the possibility for the applicants to make use of
the judicial review of the decisions of the investigating authorities
in the context of exhaustion of domestic remedies. The Court observes
that the applicants, having no access to the case file and not being
properly informed of the progress of the investigation, could not
have effectively challenged actions or omissions of investigating
authorities before a court. Furthermore, the investigation has been
resumed by the prosecuting authorities themselves a number of times
due to the need to take additional investigative steps. However,
they still failed to investigate the applicants’ allegations
properly. Moreover, owing to the time that had elapsed since the
events complained of, certain investigative measures that ought
to have been carried out much earlier could no longer usefully be
taken. Accordingly, the Court finds that the remedy relied on by
the Government was ineffective in the circumstances and dismisses
their preliminary objection as regards the applicant’s failure
to exhaust domestic remedies within the context of the criminal
investigation.
- In
the light of the foregoing, the Court holds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the disappearance of Aslanbek Astamirov, in
breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants further relied on Article 3 of the Convention, submitting
that as a result of their relative’s disappearance and the
State’s failure to investigate those events properly, they had
endured mental suffering in breach of Article 3 of the Convention.
Article 3 reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment. ”
- The
Government disagreed with these allegations and argued that in the
absence of any evidence suggesting that the applicants’
relative had been abducted by representatives of the State, there
were no grounds for alleging a violation of Article 3 of the
Convention on account of the applicants’ mental suffering.
- In the present case the Court notes that the
applicants are the mother, sisters, wife and children of the
individual who has disappeared. They were eyewitnesses to the arrest.
For more than six years they have not had any news of him. During
this period the applicants have applied to various official bodies
with enquiries about their family member, both in writing and in
person. Despite their attempts, the applicants have never received
any plausible explanation or information as to what became of him
following his detention. The responses received by the applicants
mostly denied that the State was responsible for his arrest or simply
informed them that an investigation was ongoing. The Court’s
findings under the procedural aspect of Article 2 are also of direct
relevance here. In line with the Court’s established practice,
these elements give the suffering of the applicants a dimension and
character distinct from the emotional distress which may be regarded
as inevitably caused to relatives of a victim of a serious human
rights violation (see Orhan v. Turkey, no. 25656/94, § 358,
18 June 2002, and Imakayeva, cited above, § 164).
- In
view of the above, the Court finds that the applicants suffered, and
continue to suffer, distress and anguish as a result of the
disappearance of Aslanbek Astamirov and their inability to find out
what happened to him. The manner in which their complaints have been
dealt with by the authorities must be considered to constitute
inhuman treatment contrary to Article 3.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention also in respect of the applicants.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Aslanbek Astamirov had been detained
in violation of the guarantees of Article 5 of the Convention, which
reads, in so far as relevant:
“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.”
- In
the Government’s opinion, no evidence was obtained by the
investigators to confirm that Aslanbek Astamirov was detained in
breach of the guarantees set out in Article 5 of the Convention. He
was not listed among the persons kept in detention centres.
- The
Court has previously noted the fundamental importance of the
guarantees contained in Article 5 to secure the right of individuals
in a democracy to be free from arbitrary detention. It has also
stated that unacknowledged detention is a complete negation of these
guarantees and discloses a very grave violation of Article 5 (see
Çiçek v. Turkey, no. 25704/94, § 164,
27 February 2001, and Luluyev, cited above, § 122).
- The
Court has found it established that Aslanbek Astamirov was detained
by State servicemen on 5 August 2002 and has not been seen
since. His detention was not acknowledged, was not logged in any
custody records and there exists no official trace of his subsequent
whereabouts or fate. The Court further considers that the authorities
should have been more alert to the need for a thorough and prompt
investigation of the applicants’ complaints that their relative
had been detained and taken away in life-threatening circumstances.
However, the Court’s findings above in relation to Article 2
and, in particular, the conduct of the investigation leave no doubt
that the authorities failed to take prompt and effective measures to
safeguard him against the risk of disappearance.
- Consequently,
the Court finds that Aslanbek Astamirov was held in unacknowledged
detention without any of the safeguards contained in Article 5. This
constitutes a particularly grave violation of the right to liberty
and security enshrined in Article 5 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained that they had been deprived of effective
remedies in respect of the aforementioned violations, contrary to
Article 13 of the Convention, which provides:
“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.”
- The
Government contended that the applicants had effective remedies at
their disposal as required by Article 13 of the Convention and that
the authorities had not prevented them from using them. In
particular, the applicants received reasoned replies to all their
complaints lodged in the context of criminal proceedings. Besides,
the applicants had an opportunity to appeal against the actions or
omissions of the investigating authorities in court. They referred to
Article 125 of the Code of Criminal Procedure, which allowed
participants in criminal proceedings to complain to a court about
measures taken during an investigation. This was an effective remedy
to ensure the observation of their rights. The applicants never made
use of this possibility, which required the initiative of the
participants in criminal proceedings, and thus the absence of court
action could not constitute a violation of Article 13.
- The
Court reiterates that in circumstances where, as here, the criminal
investigation into the violent death was ineffective and the
effectiveness of any other remedy that may have existed, including
civil remedies, was consequently undermined, the State has failed in
its obligation under Article 13 of the Convention (see Khashiyev
and Akayeva, cited above, § 183).
- Consequently,
there has been a violation of Article 13 in conjunction with Article
2 of the Convention.
- As
regards the applicants’ reference to Articles 3 and 5 of the
Convention, the Court considers that in the circumstances no separate
issue arises in respect of Article 13 in conjunction with Articles 3
and 5 of the Convention (see Kukayev v. Russia, no. 29361/02,
§ 119, 15 November 2007, and Aziyevy v. Russia,
no. 77626/01, § 118, 20 March 2008).
VII. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants complained that they had been discriminated against in the
enjoyment of their Convention rights, as the violations of which they
complained had taken place because of them being resident in Chechnya
and their ethnic background as Chechens. This was contrary to Article
14 of the Convention, which reads as follows:
“The enjoyment of the right and freedoms set forth
in [the] Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national
minority, property, birth or other status.”
- The
Government contended that the applicants had never been discriminated
against in the enjoyment of their Convention rights on any ground.
- The
Court observes that no evidence has been submitted to it that
suggests that the applicants were treated differently from persons in
an analogous situation because of their residence or ethnic
background, or that they have ever raised this complaint before the
domestic authorities. It thus finds that this complaint has not been
substantiated. Accordingly, the Court finds that there has been no
violation of Article 14 of the Convention.
VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Pecuniary damage
- The
applicants sought an award in respect of Aslanbek Astamirov’s
lost wages after his arrest and subsequent disappearance. The second
applicant claimed a total of 142,286 Russian roubles (RUB) (4,099
euros (EUR)) under this head, the fourth applicant claimed
RUB 306,449 (EUR 8,828), the fifth applicant claimed
RUB 150,648 (EUR 4,340) and the sixth applicant claimed
RUB 169,465 (EUR 4,882).
- They
submitted that Aslanbek Astamirov was unemployed at the time of his
arrest, and that in such cases the calculation should be made on the
basis of the subsistence level established by national law. Their
calculations were also based on the actuarial tables for use in
personal injury and fatal accident cases published by the United
Kingdom Government Actuary’s Department in 2004 (“Ogden
tables”). The applicants assumed that his wife, mother and
children would have been financially dependent on him. They
calculated his earnings, with an adjustment for 10% yearly inflation
rate, and argued that the first applicant could count on 10%, and his
wife and each child (until the age of majority) on 20% of the total.
- The
Government regarded these claims as based on suppositions and
unfounded. In particular, they noted that in the national proceedings
the applicants had never claimed compensation for the loss of a
breadwinner, although such a possibility was provided for.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the
Convention. Furthermore, under Rule 60 of the Rules of Court any
claim for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
The Court further finds that the loss of earnings also applies to
dependent children and, in some cases, to elderly parents (see, among
other authorities, Imakayeva, cited above, § 213).
- Having
regard to its above conclusions, it finds that there is a direct
causal link between the violation of Article 2 in respect of the
second, fourth, fifth and sixth applicants’ family member and
the loss by these applicants of the financial support which he could
have provided.
- Having
regard to the applicants’ submissions and the fact that
Aslanbek Astamirov was not employed at the time of his apprehension,
the Court awards EUR 12,000 to the second, fourth, fifth and
sixth applicants jointly in respect of pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Non-pecuniary damage
- The
applicants claimed financial compensation in respect of non-pecuniary
damage for the suffering they had endured as a result of the loss of
their family member and the authorities’ indifference. They
sought amounts ranging from EUR 5,000 to EUR 50,000 each,
depending on the closeness of family ties with the disappeared man.
- The
Government found the amounts claimed exaggerated.
- The
Court has found a violation of Articles 2, 5 and 13 of the Convention
on account of the unacknowledged detention and disappearance of the
applicants’ relative. The applicants themselves have been found
to have been victims of a violation of Article 3 of the Convention.
The Court thus accepts that they have suffered non-pecuniary damage
which cannot be compensated for solely by the findings of violations.
It awards to the applicants jointly EUR 35,000, plus any tax
that may be chargeable thereon.
C. Costs and expenses
- The
applicants were represented by the SRJI. They submitted an itemised
schedule of costs and expenses that included research and interviews
in Ingushetia and Moscow, at a rate of EUR 50 per hour for the work
in the area of exhausting domestic remedies and of EUR 150 per hour
for the drafting of submissions to the Court. The aggregate claim in
respect of costs and expenses related to the applicants’ legal
representation amounted to EUR 7,903.
- The
Government disputed the reasonableness and the justification of the
amounts claimed under this heading. They questioned, in particular,
whether all the lawyers working for the SRJI had been involved in the
present case and whether it had been necessary for the applicants to
rely on courier mail.
- The
Court has to establish first whether the costs and expenses indicated
by the applicants were actually incurred and, second, whether they
were necessary (see McCann and Others, cited above, §
220).
- Having
regard to the details of the information submitted and the contracts
for legal representation concluded between the SRJI and the
applicants, the Court is satisfied that these rates are reasonable
and reflect the expenses actually incurred by the applicants’
representatives.
- Further,
it has to be established whether the costs and expenses incurred for
legal representation were necessary. The Court notes that these cases
were rather complex and required a certain amount of research and
preparation.
- Having regard to the details of the claims submitted
by the applicants, the Court awards them the amount as claimed of
EUR 7,903, together with any value-added tax that may be
chargeable to the applicants, the net award to be paid into the
representatives’ bank account in the Netherlands, as identified
by the applicants.
D. Default interest
- The
Court considers it appropriate that the default interest 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
- Dismisses the Government’s preliminary
objection;
- Holds that there has been a failure to comply
with Article 38 § 1 (a) of the Convention in that the
Government have refused to submit documents requested by the Court;
- Holds that there has been a violation of
Article 2 of the Convention in respect of Aslanbek Astamirov;
4. Holds that there has been a violation of
Article 2 of the Convention in respect of the failure to conduct
an effective investigation into the circumstances in which Aslanbek
Astamirov had disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants;
- Holds that there has been a violation of
Article 5 of the Convention in respect of Aslanbek Astamirov;
7. Holds
that there has been a violation of Article 13 of the Convention
in respect of the alleged violations of Article 2 of
the Convention;
8. Holds
that no separate issues arise under Article 13 of the Convention in
respect of the alleged violations of Articles 3 and 5;
- Holds that there has been no violation of
Article 14 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts,:
(i) EUR 12,000
(twelve thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage to the second, fourth, fifth and sixth
applicants jointly, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(ii) EUR 35,000
(thirty-five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to the applicants jointly, to be
converted into Russian roubles at the rate applicable at the date of
settlement;
(iii) EUR 7,903
(seven thousand nine hundred and three euros), plus any tax that may
be chargeable to the applicants, in respect of costs and expenses, to
be paid into the representatives’ bank account in the
Netherlands;
(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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 26 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
