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FIRST
SECTION
CASE OF
TASATAYEVY v. RUSSIA
(Application
no. 37541/05)
JUDGMENT
STRASBOURG
8
April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tasatayevy v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37541/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Russian nationals, Ms Khadishat Tasatayeva
and Ms Amena (also spelled Amina) Tasatayeva (“the
applicants”), on 11 August 2005.
- The
applicants were represented by Mr D. Itslayev, a lawyer practising in
Nazran, Russia. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
5 May 2008 the Court decided to apply Rule 41
of the Rules of Court and to grant priority treatment to the
application and to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having
considered the Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1950 and 1949 respectively. They live in
Urus-Martan, Chechnya. The applicants are sisters-in-law; they are
married to two brothers. The first applicant is the mother of Aslan
Tasatayev, who was born in 1975, and the second applicant is the
mother of Aslanbek Tasatayev, who was born in 1979. Aslan Tasatayev
and Aslanbek Tasatayev are cousins.
A. The abduction of Aslan Tasatayev and Aslanbek
Tasatayev and the subsequent events
1. The applicants' account
a. The abduction of the applicants' relatives
- At
the material time the applicants, their sons Aslan and Aslanbek
Tasatayev and other relatives lived in a household situated at 5
Shvernika Street, Urus-Martan, Chechnya. At some point later the
number of the house was changed to 7 Shvernika Street. The
applicants' household consisted of several
dwellings occupied by eight related families and was located in the
town centre, in the vicinity of the local law enforcement agencies.
At the time the town of Urus-Martan was under curfew. Military
checkpoints were situated on the roads leading to and from the town.
In addition, two watch posts set up by local residents were situated
in the vicinity of the applicants' household. One of the posts was a
hundred metres from the applicants' household; the other one was
sixty or seventy metres from it.
- On
the night of 31 May to 1 June 2001 (in the submitted documents the
date is also referred to as 31 May and 1 June 2001) the applicants,
their sons and other relatives were at home. At about 3 a.m. a group
of twenty five to thirty armed men arrived at their household.
They were wearing black masks, were equipped
with a portable radio station and had a grey sniffer dog. Some of the
men were armed with sniper rifles with telescopic sights. When the
men spoke to each other, they did so in unaccented Russian; they
mainly communicated by gesturing and behaved like an organised group
with a chain of command. The intruders neither identified themselves
nor produced any documents. The applicants and their relatives
thought they were Russian military servicemen.
- The
servicemen split into several groups and went into the different
dwellings through the windows. They searched the houses and demanded
and checked identity documents.
- In
the first applicant's house one of the men demanded in unaccented
Russian that the first applicant hand over her husband's passport for
checking; after that he took the document and went outside, ordering
everyone to stay inside and threatening to shoot if anyone disobeyed.
- The
first applicant managed to go onto the porch. In the yard she saw
around twenty-five to thirty servicemen who were accompanied by a
sniffer dog. At the gates the applicant saw Aslanbek Tasatayev
standing with his hands up against the wall. Meanwhile the officers
took Aslan Tasatayev out of the house where he lived with his family.
The servicemen refused to answer the applicants' questions about the
reasons for their sons' abduction and
referred to an order of their superiors. One of them, who was
unmasked and of Slavic appearance, told the second applicant that her
son was being arrested “by order” and that Aslan and
Aslanbek Tasatayev would be home by the next morning.
- In
the yard one of the officers called someone on his portable radio and
requested a car. About ten minutes later a grey UAZ minivan
('tabletka')
arrived at the gate. Its back windows were covered with plywood
instead of glass. Aslan and Aslanbek Tasatayev were placed in the
vehicle and taken in the direction of the town centre. The rest of
the servicemen followed the car on foot; the group went in the
direction of the Urus-Martan district
military commander's office (“the district military commander's
office”). According to local residents, the UAZ car with the
applicants' sons in it drove into the yard of the district military
commander's office.
b. The subsequent events
- In
the morning, immediately after the end of the curfew, the first
applicant went with her neighbour Ms L. to the local law-enforcement
agencies to find out where Aslan and Aslanbek Tasatayev had been
taken. On the way there the women spoke with the men who had stood
watch at the guard post located towards the town centre. According to
the men, on the night of the abduction the grey UAZ ('tabletka')
vehicle with the abducted men in it had driven towards the town
centre. They also confirmed that those of the servicemen who had left
the applicants' house on foot had also gone in the direction of the
town centre.
- After
that the applicants and their relatives went to
the district military commander's office and the Urus-Martan
temporary district department of the interior (the Urus-Martan VOVD)
and asked about the whereabouts of the abducted men. The agencies
denied any involvement in the abduction. After that the applicants
with their relatives lodged written complaints about the abduction of
Aslan and Aslanbek Tasatayev to the Urus-Martan district prosecutor's
office (“the district prosecutor's office”) and the
Urus-Martan district department of the interior (the Urus-Martan
ROVD).
- On
the same morning the applicants and their relatives learnt from their
neighbours that on the night of the abduction groups of military
servicemen had also broken into the houses of their neighbours, the
families of Kh. and G. In one of the houses, one of the intruders had
taken off his mask; he was of Slavic appearance.
- Later
in the morning the applicants and their relatives spoke with the
local residents who had manned the residential guard posts the night
before. According to the applicants' neighbours, Mr R.D. and Mr I.,
who had stood watch at the mosque, on the night of the abduction a
group of military servicemen had arrived there and ordered them to
stay inside the mosque, threatening to shoot if they went outside. At
the other post one of the applicants' neighbours, Mr U.M., who had
been on duty during the abduction, told the applicants that the night
before a group of military servicemen had arrived at the post, pulled
his and other men's hats down over their faces and ordered everyone
to get down on the ground and not to move. After that the military
servicemen had gone away, leaving one soldier to guard the watchmen.
According to Mr U.M., he had seen the abductors' UAZ car driving in
the direction of the town centre.
- On
the same day, 1 June 2001, during their visit to the military
commander's office, the second applicant and her son Mr A.T. saw the
sniffer dog used by the abductors there.
- About
two or three days after the abduction the applicants spoke with the
head of the Urus-Martan town administration, Mr S.G., who informed
them that Aslan and Aslanbek Tasatayev were detained in the military
commander's office and that he would try to expedite their release.
However, a couple of days later the official told the applicants that
he had been mistaken.
- The
applicants have had no news of Aslan and Aslanbek Tasatayev since the
night of the abduction.
- In
support of their statements the applicants submitted: a statement by
the first applicant dated 8 September 2008; a statement by the second
applicant dated 9 September 2008; a statement by the applicants'
relative Mr A.T. dated 9 September 2008; a statement by the
applicants' relative Ms Z.M. dated 2 September 2008; a statement
by the applicants' neighbour Ms M.G. dated 19 September 2008; a
statement by the applicants' neighbour Ms M. Kh. dated 19 September
2008 and copies of documents received from the authorities.
2. Information submitted by the Government
- The
Government did not challenge most of the facts as presented by the
applicants. According to their submission of 22 August 2008 “...the
interim prosecutor of the Urus-Martan district opened criminal case
no. 25088 in connection with the abduction of Aslan and Aslanbek
Tasatayev by unidentified men ...”
B. The search for Aslan and Aslanbek Tasatayev and the
investigation
1. Information submitted by the applicants
- On
1 or 2 June 2001 the district police officer M.M. visited the
applicants' household with two colleagues. They questioned some of
their relatives and a neighbour. The officials did not conduct a
crime scene examination during the visit.
- On
8 July 2001 the district prosecutor's office instituted
an investigation into the abduction of Aslan and Aslanbek Tasatayev
under Article 126 § 2 of the Criminal Code (aggravated
kidnapping). The case file was given number 25088. The applicants
were informed about it in writing by the Chechnya prosecutor's office
on 20 December 2002.
- On
8 September 2001 the investigation in criminal case no. 25088
was suspended for failure to establish the identities of the
perpetrators. The applicants were not informed about this decision.
- On
10 October, 9 December 2002 and 20 January 2003 the applicants wrote
to a number of the State authorities, including the district military
commander, the Chechnya military commander, the Chechnya prosecutor's
office, the district prosecutor's office and the Urus-Martan ROVD.
They stated that their sons had been abducted by a group of
twenty-five to thirty masked military servicemen, who had
communicated with each other by gesturing and acted as a group with
chain of command; that the servicemen had refused to explain the
reasons for the arrest of the applicants' sons and promised to
release them on the following morning. According to the applicants,
this evidence indicated that their sons had been abducted by
servicemen of Russian security services. The applicants further
stated that their complaints to various State bodies had failed to
produce any results and requested assistance in the search for
their abducted sons.
- On
20 December 2002 the Chechnya prosecutor's office informed the
applicants that the criminal investigation had been suspended on
8 September 2001 for failure to establish the identity of the
perpetrators.
- On
19 April 2003 the second applicant was granted victim status in the
criminal case.
- On
7 May 2003 the Chief Military Prosecutor's office forwarded the
applicants' complaint about the abduction of their sons by Russian
servicemen to the military prosecutor's office of the United Group
Alignment (the military prosecutor's office of the UGA) for
examination.
- On
9 April 2003 the investigators suspended
the investigation in the criminal case for failure to establish the
identities of the perpetrators. The applicants were informed about
this decision on 9 May 2003.
- On
12 May 2003 the department of the Prosecutor General's office in the
Southern Federal Circuit informed the applicants that their
complaint, that the investigation in the criminal case had been
ineffective, had been forwarded to the Chechnya prosecutor's office
for examination.
- On
24 June 2003 the Chechnya prosecutor's office informed the applicants
that they had examined their complaints about the abduction of Aslan
and Aslanbek Tasatayev. The letter stated that on 8 September 2001
the investigation in the criminal case had been suspended; that on
two occasions, that is on 9 April and on 21 June 2003, the decisions
to suspend the investigation had been overruled by the acting
district prosecutor due to the incompleteness of the investigation.
The letter further stated that on an unspecified date the
investigation had been resumed and that measures aimed at identifying
the perpetrators were under way.
- On
11 July 2003 the military prosecutor's
office of the UGA forwarded the applicants' complaint about the
abduction of their sons to the military prosecutor's office of
military unit no. 20102 for examination; the latter was to look
into possible involvement of Russian military servicemen in the
abduction of Aslan and Aslanbek
Tasatayev.
- On
23 July 2003 the investigators again suspended the investigation in
the criminal case for failure to establish the identities of the
perpetrators. The applicants were not informed about this decision.
- On
4 September 2003 the military prosecutor's office of military unit
no. 20102 informed the applicants that the examination of their
complaint had established that on 31 May 2001 during special
operations conducted in the Urus-Martan district Aslan
and Aslanbek Tasatayev had not been abducted by
Russian military servicemen.
- On
3 March 2005 the applicants wrote to the district prosecutor's office
describing the circumstances of their sons' abduction and pointing
out that there was evidence of the involvement of Russian military
forces in the incident. The applicants also complained that the
investigation in the criminal case was ineffective and that there was
no information about it, and requested access to the investigation
file.
- On
11 March 2005 the district prosecutor's office informed the
applicants that their complaint of 3 March 2005 had been rejected.
- On
14 March 2005 the investigators resumed the investigation in the
criminal case.
- On
14 April 2005 the investigators suspended the investigation in the
criminal case for failure to establish the identities of the
perpetrators. The applicants were not informed about this decision.
2. Information submitted by the Government
- Without
providing copies of any relevant documents and dates of the
investigating measures, the Government summarised the progress of the
investigation in the criminal case as follows.
- On
unspecified dates the investigators requested information about the
abducted men from various authorities, including law-enforcement
agencies, the military commanders' offices and medical institutions.
No information of interest was received in response to these
requests. According to a letter from the Urus-Martan town
administration, the disappeared Aslan and Aslanbek Tasatayev were
attested positively by the local administration.
- On
an unspecified date the investigators conducted a scene of crime
examination in the applicants' household.
- The
investigators granted three persons, including the second applicant,
Ms T.D. and Ms A.U. victim status in the criminal case and questioned
them about the circumstances of the abduction.
- On
an unspecified date the investigators questioned the second
applicant, who stated that on the night between 31 May and 1 June
2001 she had been woken up by noise in her house. She had got out of
bed and seen four unidentified armed masked men in camouflage
uniforms without insignia in her room. Without any explanation the
men had taken her son Aslanbek Tasatayev's passport. In the yard she
had seen a large group of masked armed men in camouflage uniforms and
Aslanbek and Aslan Tasatayev. She had not seen any vehicles in the
yard or next to the house in the street. The unidentified men had
taken away Aslan and Aslanbek Tasatayev. The men had told the
applicant that her relatives would be released in the morning.
However, Aslan and Aslanbek never returned home. The applicant did
not know who had abducted her relatives and for what reasons. At some
point later the second applicant was additionally questioned by the
investigators and stated that her abducted relatives did not belong
to any illegal armed groups; that the abductors had broken into her
house through one of the windows; and that only one of them had
exchanged words with her, whereas the rest communicated between
themselves and with her relatives only by gestures.
- On
an unspecified date the investigators questioned the applicants'
relative Ms T.D., who stated that on 1 June 2001 she had learnt from
her parents about the abduction of Aslan and Aslanbek Tasatayev by
unidentified armed men in camouflage uniforms and masks. According to
Ms T.D. her parents had not seen any vehicles in the applicants' yard
or next to the house.
- On
an unspecified date the investigators questioned the applicants'
relative Ms A.U., who stated that on the night of 1 June 2001 a group
of unidentified armed men in camouflage uniforms without insignia had
taken away her husband Aslan Tasatayev and her relative Aslanbek
Tasatayev. The intruders also had taken away Aslanbek Tasatayev's
passport. She had not seen any vehicles in the yard or next to the
house. She had no idea as to the reasons for her relatives'
abduction.
- On
unspecified dates the investigators questioned Mr A.T. and the first
applicant whose statements were similar to the one given by Ms A.U.
- At
some point later the investigators further questioned Ms A.T., who
stated that the abductors had broken into his house through a window,
that they had spoken Russian and that during the abduction he had
been in his room.
- On
17 November 2005 the applicants wrote to the Chechnya prosecutor's
office demanding that an effective investigation of the abduction be
conducted to establish the whereabouts of their disappeared sons.
According to the reply of the Chechnya prosecutor's office, the
investigation in the criminal case was under way and
operational-search measures were being taken to establish the
identities of the perpetrators.
- According
to the Government, the investigation failed to establish the
whereabouts of Aslan and Aslanbek Tasatayev. However, it found no
evidence to support the involvement of federal forces in the crime.
The law enforcement authorities of Chechnya had never arrested or
detained Aslan and Aslanbek Tasatayev on criminal or administrative
charges and had not carried out a criminal investigation in their
respect. No special operations had been carried out in respect of the
applicants' relatives. Their corpses had not been found.
- The
Government further stated that the applicants had been duly informed
of all decisions taken during the investigation.
- Despite
specific requests by the Court the Government did not disclose any
documents of criminal case no. 25088. They stated that the
investigation was in progress and that disclosure of the documents
would be in violation of Article 161 of the Code of Criminal
Procedure, since the file contained data concerning participants in
the criminal proceedings.
C. Proceedings against law-enforcement officials
- In
March 2003 the applicants lodged a complaint with the Urus Martan
town court (the town court) that the investigation in the criminal
case was ineffective. On 11 March 2003 the town court set aside their
complaint without examination due to the applicants' failure to
comply with compulsory procedural requirements
- On
3 April 2003 the applicants lodged another complaint with the town
court. They complained that the investigation in the criminal case
was ineffective and sought a ruling obliging the prosecutor's office
to conduct an effective investigation into the abduction of their
sons. It is unclear whether this complaint was examined by the court.
- On
an unspecified date in 2004 the applicants lodged another complaint
with the town court. They complained that the investigation in the
criminal case was ineffective and sought a ruling obliging the
authorities to resume the investigation in the criminal case and to
conduct it in an effective and thorough manner. On 29 March 2004 the
town court rejected their complaint. On an unspecified date in 2004
the applicants lodged a request with the town court asking for
reinstatement of the time-limits for the appeal against the decision
of 29 March 2004. On 20 October 2004 the court rejected their request
and refused to examine the appeal.
- On
an unspecified date in 2005 the applicants lodged another complaint
with the town court. They again complained that the investigation in
the criminal case was ineffective and sought a ruling obliging the
authorities to conduct an effective investigation and provide them
with access to the investigation file.
- On
14 May 2005 the town court allowed this complaint in part. The text
of the decision included the following:
“...the court established:
At about 3 a.m. on 31 May 2001 a group of masked
servicemen of the Urus Martan power structures had broken into
the house at 5 Shernika Street in Urus-Martan and conducted an
unlawful search... among themselves the servicemen had spoken
Russian. As a result, the military servicemen had arrested and taken
away the applicants' sons Aslan Tasatayev, who was born in 1975, and
Aslanbek Tasatayev, who was born in 1979....
On 8 September 2001 the investigation in the criminal
case had been suspended for failure to establish the identities of
the perpetrators. The whereabouts of the Tasatayevs had not been
established, even though their arrest had been carried out by
representatives of power structures. The following facts confirm
this:
the
arrest had been carried out by a group of about thirty military
servicemen, during curfew... not far away from the town centre of
Urus-Martan, in an open manner...;
the
military servicemen who had carried out the arrest... were wearing
camouflage uniforms, were well-armed and spoke clear [unaccented]
Russian;
a
shepherd dog had been used during the arrest;
the
military servicemen had used a portable radio to call for a UAZ
tabletka car, which had arrived ten minutes later;
the car
had taken the arrested men to the town centre, where the VOVD, the
ROVD and the FSB were situated;
not far
away from the Tasatayevs' house were two guard posts set up by local
residents, who had been on duty that night. Before cordoning off the
Tasatayevs' household the military servicemen had gone to one of the
guard posts where two Chechens were on duty, pulled their hats down
over their faces and told them: “You did not see us. We did
not see you”. At the other guard post, at the mosque, the
federal servicemen had locked the Chechen watchmen in the mosque.
There are witnesses who saw the car with the arrested men in it
going into the yard of the military commander's office.
The above and other facts had not been investigated by
the prosecutor's office ....
....the investigator's decision to suspend the
investigation in the criminal case cannot be considered as lawful and
justified for the following reasons:
the investigation failed to identify and question those
residents who had been on duty at the guard posts ... the
investigation failed to establish the identity of the UAZ tabletka
vehicle used during the abduction ...; the investigators failed to
identify and question the witnesses who saw the car with the arrested
men in it driving into the yard of the military commander's office...
the investigators failed to question the supervisor from the military
commander's office and the Urus-Martan temporary district department
of the interior, who had been on duty on the date of the
abduction...”
The
court instructed the investigators to conduct an effective
investigation into the abduction and take all possible measures to
solve the crime. The remainder of the complaint was rejected. On 6
June 2005 the town court upheld this decision on appeal.
II. RELEVANT DOMESTIC LAW
- For
a summary of the relevant domestic law see Akhmadova and
Sadulayeva v. Russia (no. 40464/02, §§ 67-69,
10 May 2007).
THE LAW
I. THE GOVERNMENT'S OBJECTION REGARDING NON EXHAUSTION
OF DOMESTIC REMEDIES
A. The parties' submissions
- The
Government contended that the complaint should be declared
inadmissible for non-exhaustion of domestic remedies. They submitted
that the investigation into the disappearance of Aslan and Aslanbek
Tasatayev had not yet been completed. They also argued that it had
been open to the applicants to pursue civil complaints but that they
had failed to do so.
- The
applicants contested that objection. They stated that the only
effective remedy in their case, the criminal investigation, had
proved to be ineffective and that their complaints to that effect,
including their applications to the domestic court, had been futile.
B. The Court's assessment
- The
Court will 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 Government's objection in this regard is
thus dismissed.
- As
regards criminal law remedies, the Court observes that the applicants
complained to the law enforcement authorities immediately after the
abduction of Aslan and Aslanbek Tasatayev and that an investigation
has been pending since 8 July 2001. The applicants and the Government
dispute the effectiveness of the investigation of the kidnapping.
- The
Court considers that the Government's objection raises issues
concerning the effectiveness of the investigation which are closely
linked to the merits of the applicants' complaints. Thus, it decides
to join this objection to the merits of the case and considers that
the issue falls to be examined below.
II. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT
OF THE FACTS
A. The parties' arguments
- The
applicants maintained that it was beyond reasonable doubt that the
men who had abducted Aslan and Aslanbek Tasatayev were State agents.
In support of their complaint they referred to the following: at the
material time Urus-Martan was under the total control of federal
troops. There were Russian military checkpoints on the roads leading
to and from the town. The area was under curfew. The abductors
arrived as a large group late at night, which indicated that they had
been able to circulate freely past curfew. The men interacted by
gesturing, had chain of command and acted in a manner similar to that
of special forces carrying out an identity check. They were wearing
specific camouflage uniforms, were well-armed, and had portable
radios and a dog. The men had broken into the applicants' houses and
the houses of the applicants' neighbours without fear of being heard
by law enforcement agencies located in close proximity to the houses.
All the information disclosed from the criminal investigation file
supported their assertion as to the involvement of State agents in
the abduction. Since the applicants' sons had been missing for a very
lengthy period, they could be presumed dead. That presumption was
further supported by the circumstances in which they had been
arrested, which should be recognised as life-threatening.
- The
Government submitted that unidentified armed men had kidnapped Aslan
and Aslanbek Tasatayev. They further contended that the investigation
of the incident was pending, that there was no evidence that the men
were State agents and that there were therefore no grounds for
holding the State liable for the alleged violations of the
applicants' rights. They further argued that there was no convincing
evidence that the applicants' relatives were dead. The Government
raised a number of objections to the applicants' presentation of
facts. The fact that the perpetrators of the
abduction spoke unaccented Russian and were wearing camouflage
uniforms did not mean that these men could not have been members of
illegal armed groups. The Government
further alleged that the applicants' description of the circumstances
surrounding the abduction was inconsistent. In particular, the
applicants had failed to inform the investigators that the abductors
had used the UAZ vehicle and a dog, whereas they had submitted this
information to the Court. In the Government's opinion these
inconsistencies demonstrated that the applicants' allegations were
unsubstantiated. In this connection they referred to the alleged
discrepancies in the applicants' information provided to the Court
and the applicants' witness statements given to the domestic
investigation; however, the Government did not submit these witness
statements to the Court. The Government asserted that the
crime could have been attributable to illegal armed groups. They
pointed out that groups of mercenaries of Slavic origin had committed
crimes on the territory of the Chechen Republic and emphasised that
the fact that the perpetrators had Slavic features and spoke Russian
did not prove that they were attached to the Russian military. They
also observed that a considerable number of armaments had been stolen
from Russian arsenals by insurgents in the 1990s and that members of
illegal armed groups could have possessed camouflage uniforms.
B. The Court's evaluation of the facts
- The Court observes that in its extensive jurisprudence
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, 18
January 1978, § 161, Series A no. 25).
- The
Court notes that despite its requests for a copy of the investigation
file into the abduction of Aslan and Aslanbek Tasatayev, the
Government produced none of the documents from the case file. The
Government referred to Article 161 of the Code of Criminal Procedure.
The Court observes that in previous cases it has already found this
explanation insufficient to justify the withholding of key
information requested by the Court (see Imakayeva v. Russia,
no. 7615/02, § 123, ECHR 2006-VIII (extracts)).
- 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' sons can be presumed dead and whether their
deaths can be attributed to the authorities.
- The
applicants alleged that the persons who had taken Aslan and Aslanbek
Tasatayev away on 31 May 2001 and then killed them had been
State agents.
-
The Government suggested in their submissions that the abductors of
Aslan and Aslanbek Tasatayev may have been members of paramilitary
groups. However, this allegation was not specific and the Government
did not submit any material to support it. 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 the applicants' allegation is supported by the
witness statements collected by the applicants and by the
investigation. It finds that the fact that a large group of armed men
in uniforms was able to move freely through military roadblocks
during curfew hours and proceeded to check identity documents in
several households and then took the applicants' sons away from their
home strongly supports the applicants' allegation that these were
State servicemen conducting a security operation. In their
application to the authorities the applicants consistently maintained
that Aslan and Aslanbek Tasatayev had been detained by unknown
servicemen and requested the investigation to look into that
possibility (see paragraphs 24, 27, 34 and 55 above).
-
The Government questioned the credibility of the applicants'
statements in view of their alleged failure to inform the domestic
investigators about the UAZ vehicle and the dog used by the
abductors. However, as it can be seen from the
town court's decision (see paragraph 55 above), the applicants did
inform the investigators about these elements. The Court further
notes in this respect that no other elements underlying the
applicants' submissions of facts have been disputed by the
Government.
- The
Court observes that where the applicants make out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to a 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).
- Taking
into account the above elements, the Court is satisfied that the
applicants have made a prima facie case that their relatives were
abducted by State servicemen. The Government's statement that the
investigators had not found any evidence to support the involvement
of the special forces in the kidnapping or their general reference to
the possibility of illegal insurgents' involvement in the crime is
insufficient to discharge them from the above-mentioned burden of
proof. Having examined the documents submitted by the applicants, and
drawing inferences from the Government's failure to submit any of the
documents which were in their exclusive possession or to provide any
plausible explanation for the events in question, the Court finds
that Aslan and Aslanbek Tasatayev were arrested on 1 June 2001 by
State servicemen during an unacknowledged security operation.
- There
has been no reliable news of Aslan and Aslanbek Tasatayev since the
date of their abduction. Their names have not been found in any
official detention facility records. Finally, the Government have not
submitted any explanation as to what happened to them after their
arrest.
- Having
regard to the previous cases concerning disappearances in Chechnya
which have come before it (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 finds
that in the context of the conflict in the Republic, 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 Aslan and Aslanbek Tasatayev or of
any news of them for more than eight years supports this assumption.
- Accordingly,
the Court finds that the evidence available permits it to establish
that Aslan and Aslanbek Tasatayev must be presumed dead following
their 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
relatives had been deprived of their lives 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 parties' submissions
- The
Government contended that the domestic investigation had obtained no
evidence to the effect that Aslan and Aslanbek Tasatayev were dead or
that any servicemen of the federal law-enforcement agencies had been
involved in their kidnapping or alleged killing. They claimed that
the investigation into the kidnapping of the applicants' relatives
met the Convention requirement of effectiveness, as all measures
available under national law were being taken to identify those
responsible. The Government also noted that the decisions to suspend
and resume the proceedings did not demonstrate their ineffectiveness,
but showed that the authorities in charge were continuing to take
steps to solve the crime.
- The
applicants argued that Aslan and Aslanbek Tasatayev had been detained
by State servicemen and should be presumed dead in the absence of any
reliable news of them for several years. They also argued that the
investigation had not met the effectiveness and adequacy requirements
laid down by the Court's case-law. The applicants pointed out that
the prosecutor's office had not taken some crucial investigative
steps. The investigation into Aslan and Aslanbek Tasatayev's
kidnapping had been opened several weeks after the events and then
had been suspended and resumed a number of times, thus delaying the
taking of the most basic steps, and that the relatives had not been
properly informed of the most important investigative measures. The
fact that the investigation had been pending for such a long period
of time without producing any tangible results was further proof of
its ineffectiveness. They also 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.
B. The Court's assessment
1. Admissibility
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits.
Further, the Court has already found that the Government's objection
concerning the alleged non-exhaustion of domestic remedies should be
joined to the merits of the complaint (see paragraph 63 above). The
complaint under Article 2 of the Convention must therefore be
declared admissible.
2. Merits
(a) The alleged violation of the right to
life of Aslan and Aslanbek Tasatayev
- The
Court has already found that the applicants' relatives must be
presumed dead following unacknowledged detention by State servicemen.
In the absence of any justification put forward by the Government,
the Court finds that the deaths can be attributed to the State and
that there has been a violation of Article 2 in respect of Aslan and
Aslanbek Tasatayev.
(b) The alleged inadequacy of the
investigation of the kidnapping
- 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, the kidnapping of Aslan and Aslanbek Tasatayev was
investigated. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
- The
Court notes at the outset that none of the documents from the
investigation were disclosed by the Government. It therefore has to
assess its effectiveness on the basis of the few documents submitted
by the applicants and the information about its progress presented by
the Government.
- The
Court notes that the authorities were immediately made aware of the
abduction by the applicants' submissions. The investigation in
criminal case no. 25088 was instituted on 8 July 2001, which is one
month and six days after Aslan and Aslanbek Tasatayev's abduction.
Such a postponement per se was liable to affect the
investigation of the kidnapping in life threatening
circumstances, where crucial action has to be taken in the first days
after the event. It appears that after that a number of essential
steps were delayed or not taken at all. For instance, as can be seen
from the decision of the domestic court of 14 May 2005, by that date
the investigators had not identified or questioned any of the local
residents who had stood watch at the guard posts on the night of the
abduction and had been threatened by the abductors; they had not
established the identity of the owner of the UAZ vehicle which had
been moving around Urus-Martan that night; they had not identified
and questioned the witnesses who had seen the abductors' vehicle
driving into the yard of the military commander's office after the
abduction and they had not questioned any of the servicemen who had
been on duty in the military commander's office and the ROVD about
their possible involvement in the abduction or subsequent detention
of the applicants' sons (see paragraph 55 above). It is obvious that
these investigative 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. Such 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 matter (see Öneryıldız v.
Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).
- The
Court also notes that even though the second applicant was granted
victim status in the investigation concerning the abduction of her
relatives, she was only informed of the suspension and resumption 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 suspended and resumed on
numerous occasions and that there were lengthy periods of inactivity
of the district prosecutor's office when no proceedings were pending.
The town court criticised deficiencies in the proceedings and ordered
remedial measures (see paragraph 55 above). It appears that its
instructions were not complied with.
- Having
regard to the limb of the Government's preliminary objection that was
joined to the merits of the complaint, inasmuch as it concerns the
fact that the domestic investigation is still pending, the Court
notes that the investigation, having being repeatedly suspended and
resumed and plagued by inexplicable delays, has been pending for many
years without producing any tangible results. Accordingly, the Court
finds that the remedy relied on by the Government was ineffective in
the circumstances and dismisses their preliminary objection.
- 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 Aslan and Aslanbek
Tasatayev, in breach of Article 2 in its procedural aspect.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants relied on Article 3 of the Convention, submitting that as
a result of their sons' disappearance and the State's failure to
investigate it 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.”
A. The parties' submissions
- The
Government disagreed with these allegations and argued that the
investigation had not established that the applicants had
been subjected to inhuman or degrading treatment prohibited by
Article 3 of the Convention
-
The applicants reiterated their complaint.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The Court has found on many occasions that in a
situation of enforced disappearance close relatives of the victim may
themselves be victims of treatment in violation of Article 3. The
essence of such a violation does not mainly lie in the fact of the
“disappearance” of the family member but rather concerns
the authorities' reactions and attitudes to the situation when it is
brought to their attention (see Orhan v. Turkey, no. 25656/94,
§ 358, 18 June 2002, and Imakayeva, cited above,
§ 164).
- In
the present case the Court notes that the applicants are mothers of
the disappeared persons who witnessed their abduction. For more than
eight years they have not had any news of the missing men. During
this period the applicants have made enquiries of various official
bodies, both in writing and in person, about their missing sons.
Despite their attempts, the applicants have never received any
plausible explanation or information about what became of them
following their detention. The responses they received mostly denied
State responsibility for their sons' arrest or simply informed them
that the investigation was ongoing. The Court's findings under the
procedural aspect of Article 2 are also of direct relevance here.
- The
Court therefore concludes that there has been a violation of Article
3 of the Convention in respect of the applicants.
V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants further stated that Aslan and Aslanbek Tasatayev had been
detained in violation of the guarantees contained in 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.”
A. The parties' submissions
- The
Government asserted that no evidence had been obtained by the
investigators to confirm that Aslan and Aslanbek Tasatayev had been
deprived of their liberty. They were not listed among the persons
kept in detention centres and none of the regional law-enforcement
agencies had information about their detention.
- The
applicants reiterated their complaint.
B. The Court's assessment
1. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that the complaint is not inadmissible
on any other grounds and must therefore be declared admissible.
2. Merits
- 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 that Aslan and Aslanbek Tasatayev
were abducted by State servicemen on 1 June 2001 and have not been
seen since. Their detention was not acknowledged, was not logged in
any custody records and there exists no official trace of their
subsequent whereabouts or fate. In accordance with the Court's
practice, this fact in itself must be considered a most serious
failing, since it enables those responsible for an act of deprivation
of liberty to conceal their involvement in a crime, to cover their
tracks and to escape accountability for the fate of a detainee.
Furthermore, the absence of detention records, noting such matters as
the date, time and location of detention and the name of the
detainee, as well as the reasons for the detention and the name of
the person effecting it, must be seen as incompatible with the very
purpose of Article 5 of the Convention (see Orhan, cited
above, § 371).
- 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 sons 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 them against the risk of
disappearance.
- In
view of the foregoing, the Court finds that Aslan and Aslanbek
Tasatayev were 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 6 OF THE CONVENTION
- The
applicants complained that the proceedings brought by them against
the investigators were unfair. They relied on Article 6 of the
Convention, which, in so far as relevant, reads as follows:
“1. In the determination of his civil rights
and obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law...”
- The Court finds that Article 6
§ 1 of the Convention is, in principle, inapplicable to the
proceedings in question, as they clearly have not involved the
determination of the applicants' civil rights or obligations or a
criminal charge against them, within the meaning of the Convention
(see Akhmadov and Others v. Russia
(dec.), no. 21586/02, 3 May 2007).
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 § 4
thereof.
VII. 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.”
A. The parties' submissions
- The
Government contended that the applicants had 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. The
applicants had had an opportunity to challenge the acts or omissions
of the investigating authorities in court pursuant to Article 125 of
the Code of Criminal Procedure and had availed themselves of it. The
Government further added that participants in criminal proceedings
could also claim damages in civil proceedings. In sum, the Government
submitted that there had been no violation of Article 13.
- The
applicants reiterated the complaint.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that in circumstances where, as here, a criminal
investigation into the disappearance has been ineffective and the
effectiveness of any other remedy that might have existed, including
civil remedies suggested by the Government, has consequently been
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, read 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).
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. Damage
- The
applicants did not submit any claims for pecuniary damage. As regards
non-pecuniary damage, the applicants stated
that they had lost their sons and endured stress, frustration and
helplessness in relation to their sons' abduction, aggravated by the
authorities' inactivity in the investigation of their kidnapping for
several years. They left the determination of the amount of
compensation to the Court.
- The
Government submitted that finding a violation
of the Convention would be adequate just satisfaction in the
applicants' case.
- 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' sons. 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 each of the applicants 60,000 euros (EUR), plus any tax that
may be chargeable thereon.
B. Costs and expenses
- The applicants were represented
by Mr D. Itslayev, a lawyer practising in Nazran. The applicants
submitted a contract with their representative and an itemised
schedule of costs and expenses that included legal research and
drafting, as well as administrative and translation expenses. The
overall claim in respect of costs and expenses related to the
applicants' legal representation amounted to EUR 5,217. The
applicants submitted the following breakdown of costs:
(a) EUR 4,544 for 28.85 hours of interviews and
drafting of legal documents submitted to the Court and the domestic
authorities, at the rate of EUR 150 per hour;
(b) EUR 145 of administrative expenses;
(c) EUR 528 in translation fees based on the
rate of EUR 80 per 1000 words.
- The Government did not dispute
the reasonableness of the amounts claimed.
- The Court has to establish
first whether the costs and expenses indicated by the applicant were
actually incurred and, second, whether they were necessary (see
McCann
and Others v. the United Kingdom,
27 September 1995, § 220, Series A no. 324)
- Having regard to the details of the information
submitted by the applicant, the Court is satisfied that these rates
are reasonable. It notes that this case was rather complex and
required the amount of research and preparation claimed by the
applicants.
- Having regard to the details of the claims submitted
by the applicants, the Court awards them the amount of EUR 5,000
together with any value-added tax that may be chargeable to the
applicants, the net award to be paid into the representative's bank
account, as identified by the applicants.
C. 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
- Declares
the complaints under Articles 2, 3, 5 and 13 admissible and the
remainder of the application inadmissible;
- Decides
to join to the merits the Government's objection as to non exhaustion
of criminal domestic remedies and rejects it;
- Holds that there has been a violation of
Article 2 of the Convention in respect of Aslan and Aslanbek
Tasatayev;
- 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 Aslan and
Aslanbek Tasatayev had disappeared;
5. Holds that there has been a violation of
Article 3 of the Convention in respect of the applicants;
6. Holds that there has been a violation of
Article 5 of the Convention in respect of Aslan and Aslanbek
Tasatayev;
- Holds
that there has been a violation of Article 13 of the Convention
in conjunction with Article 2 of the Convention;
8. Holds
that no separate issues arise under Article 13 of the Convention in
conjunction with Articles 3 and 5;
- 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, to be converted into
Russian roubles at the date of settlement:
(i) EUR 60,000
(sixty thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage to each of the applicants;
(ii) EUR 5,000
(five thousand euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses, to be paid into the
representative's bank account.
(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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
