Quick orient — first passages from judgment

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

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 ,

The case originated in an application (no. 1572/07) 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 three Russian nationals, Mr Makhmet Nasukhanov, Ms Roza Nasukhanova and Mr Vakha Nasukhanov (“the applicants”), on 20 December 2006.

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 G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

Auto-extracted from BAILII. Full structured brief in progress — the source links below give you the verbatim judgment in the meantime.

On 1 April 2009 the President of the First Section 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. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

The Government objected to the joint examination of the admissibility and merits of the application, as well as to granting the application priority. Having considered the Government's objections, the Court dismissed them.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant was born in 1953, the second applicant was born in 1958 and the third applicant was born in 1983. They live in the village of Starye Atagi, the Groznenskiy District, in the Chechen Republic.

The first and second applicants are spouses and the parents of Mr Movsar Nasukhanov, born in 1980, Mr Movladi Nasukhanov, born in 1981, and the third applicant.

A. The abduction and killing of Movsar and Movladi Nasukhanov

1. The applicants' account

(a) The special operation in the village of Starye Atagi

Between 14 and 18 February 2002 the Russian federal military carried out a special “sweeping” operation in the village of Starye Atagi.

At about 9.30 a.m. on 14 February 2002 an armed clash commenced between a group of insurgents and the Russian servicemen. The insurgents hid inside a house at Argunskaya Street located in the vicinity of the applicants' family home and fired at the military. At some point Russian servicemen killed the insurgents and started checking other houses in the area.

At that time the applicants, Movsar and Movladi Nasukhanov and the first applicant's two daughters were inside their house. At some point a group of servicemen wearing blue camouflage uniforms and masks arrived at the applicants' house in armoured personnel carriers (“APCs”) and entered it. The first applicant believed that the men belonged to the State Intelligence Department (“GRU”). The servicemen in blue uniforms checked the Nasukhanovs' identity papers, asked why they had been hiding insurgents and left.

Another group of armed men who had arrived in UAZ vehicles entered the applicants' house. Those men had badges with a “B” letter and an eagle pinned to sleeves of their camouflage uniforms. The first applicant inferred that they were members of the Pennant unit (подразделение «Вымпел»). They ordered the male members of the Nasukhanov family to lie down on the floor, lined up the women next to a wall, checked the identity papers and left.

A few moments later a group of armed and masked men in yellow camouflage uniforms arrived at the applicants' house in UAZ vehicles with illegible registration plates. The first applicant peeked out of the window and saw a motorcade of military vehicles and several APCs parked outside his house. The servicemen in the yellow uniforms checked the identity papers of the first applicant's sons and asked them if they knew any insurgents. The young men replied in the negative. The servicemen in yellow uniforms said that it was necessary to run a check on them, and took the third applicant and Movsar and Movladi Nasukhanov away.

Shortly after the arrest of their sons the first and second applicants learned that the Russian military had established a filtration point near a poultry-house and a mill in Starye Atagi. Some 500 persons were being kept at the filtration point.

On the day following the arrest the second applicant went to the poultry-house. Relatives of other detained persons had gathered near the building to wait for news of their family members.

The servicemen started releasing the detainees. Some of them told the second applicant that her three sons were being kept inside the poultry house. The second applicant waited for her sons' release for the next three days.

On 16 February 2002 the third applicant was released. He had been severely beaten by the servicemen and could not walk, so he had to be carried home. His body was bruised. Once at home, the third applicant said that for three days the servicemen had questioned and beaten him. Before the release they had made him sign a declaration stating that he had no complaints. The third applicant had not seen his brothers after the arrest but knew that they had been transferred to the mill where the headquarters of the federal military was located.

On 19 February 2002 the special “sweeping” operation ended.

(b) Discovery of the dead bodies

On 20 February 2002 the first and second applicants went to the village of Mesker-Yurt of the Shali District and examined two dead bodies, which had been burned from head to waist. The first and second applicants recognised their sons' shoes and trousers and identified the dead as Movsar and Movladi Nasukhanov. On the same day the first and second applicants took the bodies home.

2. The Government's account

On 18 February 2002 the Shali district temporary department of the interior (“the VOVD”) received a report that four men had been killed by servicemen of military unit no. 3179 in crossfire on the outskirts of Mesker Yurt. Upon inspection of the scene of the incident four charred corpses and two AK-74 machine guns were discovered in the basement of a destroyed house.

B. Investigation into the killings of Movsar and Movladi Nasukhanov

1. The applicants' account

The first applicant did not apply to a prosecutor's office after the discovery of Movsar and Movladi Nasukhanov's dead bodies as he feared for the safety of the third applicant.

On 18 February 2002 the Shali district department of the interior (“the ROVD”) received a report that four charred male corpses had been discovered in the basement of a house on the outskirts of Mesker-Yurt. Later two of those bodies were identified as Movsar and Movladi Nasukhanov.

On 18 February 2002 the prosecutor's office of the Shali District (“the district prosecutor's office”) instituted an investigation into the killing of Movsar and Movladi Nasukhanov under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case was assigned the number 59054.

On 25 February 2003 the district prosecutor's office issued a report on the investigation, stating the following:

“At about 1 p.m. on 18 February 2002 the Shali district department of the interior received a report that four charred male corpses had been found in the basement of a residential house on the outskirts of the village of Mesker-Yurt.

Later the three bodies were identified as villagers of Starye Atagi, namely, Movsar Nasukhanov, born in 1980, Movladi Nasukhanov, born in 1981, and Ruslan Nasukhanov, born in 1963.

An investigation into this matter was opened by the Shali district prosecutor's office in criminal case no. 59054 under Article 105 § 2 of the Russian Criminal Code on 18 February 2002.”

On 5 March 2003 the head of the local administration of Starye Atagi described the circumstances of the Nasukhanov brothers' arrest and the discovery of their dead bodies to the district prosecutor's office. He stated that on 14 February 2002 the servicemen of the United Group Alignment had carried out a special operation to arrest insurgents, that the latter had opened fire and then had been killed and that Movsar and Movladi Nasukhanov had been taken away by the servicemen and then killed. The head of the local administration also mentioned that Movsar and Movladi Nasukhanov had not participated in illegal armed groups.

On 15 December 2003 the first applicant complained to the prosecutor's office of the Chechen Republic about the ineffectiveness of the investigation in case no. 59054.

On 4 January 2004 the prosecutor's office of the Chechen Republic informed the applicants that on an unspecified date the investigation had been resumed and was pending before the district prosecutor's office.

On 10 February 2004 the first applicant was summoned to the district prosecutor's office. An investigator told him that the servicemen had made a deposition explaining that his sons had been killed as they had been inside a house from which insurgents had fired at military vehicles. However, according to a statement by the owners of that house, the servicemen had killed the Nasukhanov brothers, brought their bodies to the village's outskirts and set the house on fire. The first applicant read that statement, but was not allowed to make a copy of it.

On 15 February 2004 the district prosecutor's office suspended the investigation in case no. 59054 for failure to identify those responsible.

On 24 July 2004 the military prosecutor's office of the United Group Alignment forwarded the first applicant's complaint to the prosecutor's office of the Chechen Republic stating that an investigation into the killing of Movsar and Movladi Nasukhanov was not pending before them.

On 2 November 2004 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office and ordered that the investigation be carried out more vigorously.

On 29 April 2005 the acting head of the department for supervision on criminal investigations of the prosecutor's office of the Chechen Republic informed the first applicant of the following:

“The prosecutor's office of the Chechen Republic studied the criminal case materials, quashed the decision of the investigator of the Shali district prosecutor's office on suspension [of the investigation] and resumed the investigation.

You should address all further queries related to the investigation of this case to the Shali district prosecutor's office”.

On 15 February 2006 the SRJI requested an update on the progress of case no. 59054 from the district prosecutor's office.

On 3 March 2006 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation in case no. 59054 had been suspended on 15 February 2004 for failure to identify those responsible and noted that the first applicant had the right to study non-classified documents from the case file on the district prosecutor's office's premises.

On 16 November 2006 the district prosecutor's office received from the SRJI a request for access to the entire investigation file in case no. 59054.

On 17 November 2006 the request was dismissed since pursuant to domestic laws a victim had no right to study a case file in its entirety prior to the completion of the investigation.

On 19 June 2009 the applicants were informed that the investigation had been resumed.

2. The Government's account

On 18 February 2002 the district prosecutor's office instituted an investigation in case no. 59054 into the killings of the four men found dead in Mesker-Yurt under Article 105 § 2 of the Russian Criminal Code (aggravated murder).

The investigators inspected the scene of incident and found inside a half-demolished house four seriously burned dead bodies showing signs of a violent death, two AK-74 machine guns with spent cartridges and a MOH 50 mine. Next to the house they found forty-nine shells for 7.62 calibre bullets and two shells for 9 mm calibre bullets.

On 18 February 2002 the bodies were transferred to the deputy head of the Mesker-Yurt local administration, Mr M.

On 18 February 2002 the investigators questioned a serviceman from military unit no. 3179, Mr I., who stated the following. On 18 February 2002 a group of servicemen had been travelling past Mesker-Yurt when they were fired at from machine guns. Their senior officer had decided to block off the area from which the firing had come; the servicemen had fired back. Then a storm unit had moved forward and found four charred corpses in the ruins, two machine guns and a mine. Some servicemen had stayed at the scene of incident, and others had gone to Mesker-Yurt to bring in investigators.

On the same date Mr M. was questioned and stated that on 18 February 2002 he had heard sounds of an explosion and machine-gun fire. Then some servicemen had come to his office and told him that he had been called out by the military commander of the Shali District. They had arrived at the half-demolished house owned by Mr Kh. The servicemen had told Mr M. that they had discovered four charred corpses. He had not seen the bodies himself.

On 18 February 2002 an officer of military unit no. 3179 (his name has not been disclosed) was questioned as a witness and stated the following. On 18 February 2002 his unit had been travelling from Khankala in four armoured personnel carriers and ten lorries after having participated in the special operation carried out there. In the vicinity of Mesker-Yurt their vehicles had been fired at. The officer had ordered the APCs to surround those who had opened fire. Four or five men had run towards a red-brick building. The servicemen had surrounded the building and fired back. At some point the servicemen had sent two missiles from a grenade launcher; the building had been set on fire. The officer's subordinates had taken two machine guns out of the building and left as they had been unable to inspect the scene more closely because of the mines scattered there. The servicemen's actions had been strictly necessary. Other servicemen from the officer's unit were also questioned and made identical depositions.

A resident of Mesker-Yurt was questioned and stated that Mr Kh.'s house had been demolished in the course of a special operation on 8 February 2002.

On 19 February 2002 the district prosecutor's office instructed the police to find witnesses and identify the deceased, but to no avail.

On 26 March 2002 the district prosecutor's office sent a letter to the Groznenskiy district prosecutor's office, which read, in so far as relevant, as follows:

“On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to the statements by the servicemen of military unit no. 3179, those men had been killed by them in the course of an armed clash.

The Shali district prosecutor's office instituted criminal proceedings in case no. 59054 ...

Upon assessment of the results of an inspection of the scene of the incident it is possible to conclude that the corpses had been transferred from another place and set on fire there [in the half-demolished house in Mesker-Yurt].”

On an unspecified date in 2002 (the exact date on the copy of the document at the Court's disposal is illegible) the district prosecutor's office sent a letter to the VOVD and the ROVD, which read, in so far as relevant, as follows:

“On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to statements by the servicemen of military unit no. 3179, they killed the said men in the course of an armed clash.

... There are grounds to assume that the bodies were transferred to the said place in order to stage armed resistance to hide evidence of a murder.

Accordingly, I would ask your unit to take the following investigative measures:

...

2. To identify the killed men (they were most probably brought from Starye Atagi, where a special operation had been taking place)...”

On 18 April 2002 the district prosecutor's office suspended the investigation.

On 17 May 2002 the Groznenskiy district civil registrar's office issued death certificates in respect of Movsar and Movladi Nasukhanov, stating that they both died on 14 February 2002. Gunshot wounds to their bodies and heads were specified as the cause of the death in both cases.

In March 2003 ballistic expert examinations of the bullets and shells found at the scene of incident were carried out. They did not match those in the ballistic database of the Chechen Republic.

On an unspecified date in August 2003 (the exact date on the copy of the first page of the document at the Court's disposal is illegible) the prosecutor's office of the Chechen Republic quashed the decision on suspension of the proceedings for the reason that “the investigation [had] not actually been carried out, the decision on suspension [had] been taken by an investigator prematurely and unlawfully”. It was noted that the bodies had not been formally identified and that the relatives of the Nasukhanov brothers who had stated that the dead bodies belonged to their family members had not been questioned. Moreover, a post-mortem examination of the bodies had not been ordered and carried out.

It appears that at some point the proceedings were resumed.

On 20 January 2004 the district prosecutor's office ordered a post mortem examination of the four bodies to be carried out.

On 22 January 2004 Mr S.Kh., a resident of Starye Atagi, was questioned as a witness. He stated that in February 2002 there had been an armed clash between the federal troops and insurgents in his village. The federal servicemen had also carried out a special “sweeping” operation, in the course of which his son and the three Nasukhanov brothers and their cousin had been arrested. The detainees had been brought to the mill where the military unit had been stationed. At the request of the local authorities the servicemen had released his son and Vakha Nasukhanov. The two Nasukhanov brothers and their cousin, as well as twelve other residents of Starye Atagi, had not been released and their fate had been unknown. Two or three days later, after the special operation in Mesker-Yurt, Mr S.Kh. had heard that four unidentified dead bodies had been found there. Together with the Nasukhanovs' relatives, Mr S.Kh. had identified three of the bodies as the Nasukhanov brothers and their cousin; the fourth body had not been identified. All the four bodies had been charred and covered in blood but Mr S.Kh. had not seen any firearm wounds on them.

On 27 January 2004 the first applicant was granted victim status in case no. 59054 and questioned. He stated that on 14 February 2002 the armed clash between the federal troops and insurgents had commenced in his village. The servicemen had taken away his sons and their cousin, Ruslan Nasukhayev for an identity check. On the evening of 16 February 2002 his son Vakha had been released. On 17 February 2002 he had been told that four dead bodies had been found. On 20 February 2002 the first applicant, together with the second applicant and Mr S.Kh., had seen the burned bodies. The first applicant was only able to identify Movsar and Ruslan by their clothes and shoes. Firearm wounds had been visible on the bodies.

On 9 February 2004 the investigators questioned Ms N., a sister of Ruslan Nasukhayev, who stated that her brother and his cousins had been arrested and detained in the mill. Later Vakha had been released but Ruslan, Movladi and Movsar had been found dead.

On 11 February 2004 Mr Sh.Kh., a deputy prosecutor of the town of Argun, was questioned as a witness and stated that on 18 February 2002 he had visited the scene of incident together with an investigating team. They had found two machine guns, which had been dirty and had not been used for a while. There had been gunshot wounds on the bodies. In his opinion, the deaths had occurred some five to ten hours before his arrival.

On 15 February 2004 the district prosecutor's office suspended the investigation for failure to identify those responsible.

On 9 March 2006 the district prosecutor's office received a letter from the SRJI; they replied to it on 10 March 2006.

On 16 November 2006 a lawyer requested the district prosecutor's office for access to the investigation file. On 17 November 2006 the request was dismissed.

In the Government's submission, after 15 February 2004 the investigation remained suspended. No decisions to resume or suspend the investigation were taken on 29 April 2005 and 17 November 2006.

On 18 June 2009 the investigating unit of the Investigating Committee of the Russian Prosecutor's Office for the Chechen Republic (“the investigating unit”) resumed the investigation in case no. 59054.

On 1 July 2009 the investigating unit ordered an investigating group to be set up with the participation of civilian and military prosecutors to deal with case no. 59094. The decision read, in so far as relevant, as follows:

“At about 9.30 a.m. on 14 February 2002 in the village of Starye Atagi there was a skirmish between unidentified military servicemen and unidentified members of illegal armed groups. After the skirmish the unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the house at 34 Nuradilov Street.

At about 12 noon on 18 February 2002 (the exact time has not been established by the investigation) the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, as well as that of an unidentified man, were found inside a partially constructed house on the north-east outskirts of the village of Mesker-Yurt.

... Having studied the case materials, [the investigators] established that sufficient grounds existed to assume that the crime had been committed with the participation of the servicemen of the Russian federal armed forces, which, in particular, is proven by the fact of the skirmish between the servicemen of military unit no. 3179 and unidentified persons.”

On 9 July 2009 an official of the investigating unit requested his hierarchical superiors to extend the term of the investigation in case no. 59054. The request read, in so far as relevant, as follows:

“Between 12 and 19 February 2002 in the village of Starye Atagi of the Groznenskiy District unidentified military servicemen and officers of law-enforcement agencies [who were] using APCs, UAZ and Ural vehicles were carrying out special operations for the identification of members of illegal armed groups. At about 9.30 [a.m.] on 14 February 2002 a shoot out started between unidentified servicemen and unidentified insurgents. After the shooting, unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the houses at 32 and 34 Nuradilov Street.

At about 12 noon on 18 February 2002 ... the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, were discovered in ... Mesker-Yurt.”

Despite the Court's request to the Government to submit the entire investigation file in case no. 59054, they failed to do so. They submitted what they described as “the main materials of the investigation file”, sixty two pages of copies of documents with inconsistent numeration, among which were the following: the decision to open criminal proceedings; the record of the scene of incident inspection; a statement confirming that Mr M. took four bodies away to bury them; one page of the record of Mr I.'s interview; Mr. M.'s interview record; one page of the interview record of an officer from military unit no. 3179; copies of instructions by the investigators to the police; an order to carry out a ballistics expert examination; a certificate confirming that Mr M. was transporting the bodies of the Nasukhanovs; a certificate issued by the Shali ROVD on 1 April 2002; ballistics expert examination reports; decisions to suspend and resume the investigation; orders to carry out medical expert examinations; a record of Mr S.Kh.'s interview, decisions to grant victim status to the first applicant and Ms N. and their interview records; the death certificates of Movsar and Movladi Nasukhanov; a decision dismissing the request for access to the investigation file; and a decision to compose an investigating group. The Government explained that since the investigation in case no. 54059 was in progress, disclosure of all the documents would be in violation of Article 161 of the Code of Criminal Procedure as it would run contrary to the interests of the parties to the proceedings.

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 killings of Movsar and Movladi Nasukhanov had not yet been completed. Further, they alleged that it was open to the applicants to complain of any inactivity on the part of the investigators to a court or to lodge civil claims for damages, which they had failed to do. They further argued that the applicants had not requested the domestic courts to declare their relatives dead.

The applicants contested that objection and stated that the remedies referred to by the Government were ineffective.

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 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 alleged illegal acts or unlawful conduct on the part 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. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.

As regards criminal law remedies provided for by the Russian legal system, the Court observes that the domestic investigating authorities learned about the killings of the applicants' relatives immediately after the discovery of their dead bodies. The investigation into the murder of Movsar and Movladi Nasukhayev has been pending since 18 February 2002. The applicants and the Government dispute its effectiveness.

The Court considers that this part of 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. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

The applicants complained that Movsar and Movladi Nasukhanov had been killed by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the killings. They relied on Article 2 of the Convention, which 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;

A. The parties' submissions

The Government contested that argument. They submitted that there was no proof that the applicants' relatives were dead because the investigation materials did not contain records of identification of the dead bodies or reports from any medical expert examination of the corpses. The investigation was compatible with the requirements of Article 2 of the Convention.

The applicants maintained that it was beyond reasonable doubt that Movsar and Movladi Nasukhanov had been detained and then killed by State agents because the federal forces had carried out a special operation in Starye Atagi between 14 and 18 February 2002. They further complained that the investigation into the murder of their relatives had been protracted and ineffective.

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 71 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 Movsar and Movladi Nasukhanov

(i) General principles

The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons under their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).

(ii) Establishment 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, 18 January 1978, § 161, Series A no. 25).

The Court notes that, despite its requests for a copy of the entire file on the investigation into the killings of Movsar and Movladi Nasukhanov, the Government refused to produce the majority of the documents from the case file on the ground that they were precluded from providing them by Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has 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 XIII).

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 applicants claimed that Movsar and Movladi Nasukhanov had been arrested by federal servicemen in the course of the special “sweeping” operation in the village of Starye Atagi on 14 February 2002 and had then been killed by the State agents. The Court considers that the applicants have presented a coherent and convincing picture of the events in question.

The Government, in their turn, maintained that there existed no proof beyond reasonable doubt that Movsar and Movladi Nasukhanov were dead. They did not put forward any hypothesis capable of explaining the circumstances of the two men's abduction.

It is noteworthy that the Government did not expressly acknowledge in their observations on the admissibility and merits of the present case that a special security operation had taken place in Starye Atagi between 14 and 18 February 2002. Nonetheless, they made no attempt at refuting the applicants' argument that such an operation had been organised by the federal troops. It follows from the scarce information on the course of the investigation which they provided that it was common knowledge to the residents of the village and the investigating authorities that a special operation organised by the federal troops in Starye Atagi had been under way at the material time (see paragraphs 62, 61 and 62 above). Given these circumstances, the Court accepts that State agents carried out a special security operation in Starye Atagi on the day of the three Nasukhanov brothers' abduction.

The Court points out that the Nasukhanov men were taken away from their home by armed men wearing uniforms travelling openly in large numbers in military and paramilitary vehicles in daylight hours during the special security operation. It thus considers it inconceivable that those armed men could act in such a manner unless they were State agents. Moreover, the domestic investigation found “grounds to assume” that servicemen from military unit no. 3179 had arrested Movsar and Movladi Nasukhanov (see paragraph 61 above).

The Court observes that where an applicant makes 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 applicant, 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 (extracts)).

Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their family members were abducted by State servicemen. Drawing inferences from the Government's failure to submit the remaining documents, which were in their exclusive possession, or to provide another plausible explanation for the events in question, the Court finds that Movsar and Movladi Nasukhanov, as well as the third applicant, were arrested on 14 February 2002 by State servicemen during a special security operation.

Turning to the Government's assertion that it has not been established beyond reasonable doubt that the applicants' relatives were dead, the Court observes that from the very early stages of the domestic investigation both the investigating authorities and the applicants were persuaded that two of the four charred corpses found in Mesker-Yurt on 18 February 2002 belonged to Movsar and Movladi Nasukhanov. The official death certificates issued by a State body confirmed that Movsar and Movladi Nasukhanov had died on 14 February 2002 (see paragraph 47 above). The fact that the investigation file did not contain an official record of the identification of the bodies could not cast any doubt on the matter since, even assuming that such a document did not exist and was not withheld by the Government, that would clearly be the result of a serious procedural mistake imputable to the investigating authorities. Therefore, the Court finds it established that Movsar and Movladi Nasukhanov are dead.

The Court further points out that the exact circumstances of the deaths of Movsar and Movladi Nasukhanov remain unclear owing to the lack of post-mortem examination reports. The domestic investigation put forward a hypothesis that they had been killed by the servicemen of military unit no. 3179 in action. However, there were certain doubts in this regard as the investigators looked into the possibility that the bodies had been transferred to the house in Mesker-Yurt to conceal a murder by staging an armed clash (see paragraphs 44 and 45 above).

The Court is mindful of the fact that it must be cautious in taking on the role of a first instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003 V (extracts)). However, in the particular circumstances of the present case where the domestic investigation was inconclusive as to the moment of the deaths, it does not deem it necessary to establish with certainty at which particular point in time the applicants' relatives died. It considers it appropriate to limit its findings as regards the establishment of the facts in the present case to the following: Movsar and Movladi Nasukhanov were arrested by State agents on 14 February 2002 and died while in their hands no later than 18 February 2002.

(iii) The State's compliance with Article 2

The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see McCann v. the United Kingdom, no. 19009/04, § 147, 13 May 2008).

The Court has already found it established that Movsar and Movladi Nasukhanov died while in the hands of State servicemen. Since the authorities did not rely on any grounds to justify the use of lethal force by their agents or otherwise account for the killings, the Court considers that liability for the deaths is attributable to the respondent Government.

Accordingly, the Court finds that there has been a violation of Article 2 of the Convention in respect of Movsar and Movladi Nasukhanov.

(b) Alleged inadequacy of the investigation

The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [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 (see Kaya v. Turkey, 19 February 1998, § 86, Reports of Judgments and Decisions 1998 I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim's family and carried out with reasonable promptness and expedition. It should also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and should afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001 III, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

In the present case, the circumstances surrounding the death of Movsar and Movladi Nasukhanov were investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

The Court notes at the outset that the information on the course of the investigation at its disposal is extremely sparse because the majority of the case-file documents remain undisclosed by the Government.

It is common ground between the parties that the investigation in case no. 59054 was opened on 18 November 2002, that is, on the day of the discovery of the dead bodies. Accordingly, the Court observes that the proceedings commenced in a timely and diligent manner. Furthermore, during the first days of the investigation the district prosecutor's office questioned the servicemen of military unit no. 3179 and ordered expert ballistics examinations.

However, at a later stage the proceedings in case no. 59054 were plagued with inexplicable delays. For example, the first applicant, the father of the victims and an eyewitness to their abduction, was questioned for the first time only on 27 January 2004 (see paragraph 53 above). Moreover, the Court notes that in a case involving four violent deaths such a crucial investigative measure as a post-mortem examination of the bodies was ordered as late as one year and eleven months after their discovery (see paragraph 51 above). Furthermore, according to the Government's submissions, a post-mortem examination has never taken place, more than eight years after the crime.

In addition, nothing in the Government's submissions warrants the conclusion that the third applicant and Mr S.Kh.'s son, who were arrested together with Movsar and Movladi Nasukhanov and thus could shed light on their fate, have been questioned.

Accordingly, the Court considers that the domestic investigative authorities demonstrably failed to act of their own motion and breached their obligation to exercise exemplary diligence and promptness in dealing with such serious crimes as murder and kidnapping (see Öneryÿldÿz v. Turkey [GC], no. 48939/99, § 94, ECHR 2004 XII).

The Court also notes that the applicants were not promptly informed of significant developments in the investigation. It is noteworthy that the first applicant was misinformed by the prosecutor's office of the Chechen Republic on 29 April 2005, when he was officially notified that the proceedings concerning his sons' death had been resumed (see paragraph 30 above), while, according to the Government, between 15 February 2004 and 29 April 2005 the investigation remained suspended (see paragraph 59 above). In the Court's view, such handling of communication with a victim of a serious crime is unacceptable. It thus considers that 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 (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999 III).

Lastly, the Court notes that the investigation into the murder of Movsar and Movladi Nasukhanov was repeatedly suspended and then resumed, which led to lengthy periods of inactivity on the part of the investigators. Most notably, no proceedings were pending between 15 February 2004 and 18 June 2009, which could not but have had a negative impact on the prospects of identifying the perpetrators.

Having regard to the limb of the Government's objection that was joined to the merits of the complaint concerning the alleged violation of Movsar and Movladi Nasukhanov's right to life, in so far as it concerns the fact that the domestic investigation into their murder is still pending, the Court notes that the investigation in case no. 59054, having been repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for almost nine years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their objection in this part.

The Government also mentioned that the applicants had the opportunity to apply for judicial review of the decisions of the investigating authorities at the domestic level and to complain to higher prosecutors. The Court observes that, owing to the time that had elapsed since the events complained of, and, more specifically, to the fact that the domestic authorities misled the applicants when providing them with information on the course of the investigation, certain investigative steps that ought to have been carried out much earlier could no longer be usefully conducted. The Court finds therefore that it is highly doubtful that the remedies relied on by the Government would have had any prospects of success and considers that they would not have been effective in the circumstances of the case. It thus rejects the Government's objection in this part as well.

Moreover, in so far as the Government may be understood to raise a non-exhaustion plea in the context of the applicants' alleged failure to institute proceedings before domestic courts to declare their relatives dead, the Court considers that the applicants could not have been reasonably expected to launch such proceedings given that they had been issued with official death certificates confirming that Movsar and Movladi Nasukhanov had died from gunshot wounds on 14 February 2002.

In the light of the foregoing, the Court finds that the domestic authorities failed to carry out an effective criminal investigation into the death of Movsar and Movladi Nasukhanov, in breach of Article 2 in its procedural aspect.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

105. The applicants relied on Article 3 of the Convention, submitting that as a result of their relatives' abduction and killing 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.”

The Court reiterates that while a family member of a “disappeared person” can claim to be a victim of treatment contrary to Article 3 (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports 1998-III), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see Tanlı v. Turkey, no. 26129/95, § 159, ECHR 2001-III (extracts)). However, if a period of initial disappearance is long it may in certain circumstances give rise to a separate issue under Article 3 (see Gongadze v. Ukraine, no. 34056/02, §§ 184-186, ECHR 2005-XI).

The Court observes that Movsar and Movladi Nasukhanov were abducted on 14 February 2002. Their remains were found on 18 February 2002, that is, four days later. The Court is not persuaded that in the present case there was a distinct long-lasting period during which the applicants sustained the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see, by contrast, Luluyev and Others v. Russia, no. 69480/01, § 107, ECHR 2006 XIII (extracts), and Kukayev v. Russia, no. 29361/02, § 107, 15 November 2007). Moreover, there were no specific circumstances in the present case precluding the applicants from burying their loved ones in a proper manner (see, by contrast, Khadzhialiyev and Others v. Russia, no. 3013/04, § 121, 6 November 2008). The Court thus considers that the moral suffering endured by the applicants has not reached 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 Nesibe Haran v. Turkey, no. 28299/95, § 84, 6 October 2005).

It follows that this part of the complaint under Article 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

The applicants further stated that Movsar and Movladi Nasukhanov 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.”

A. The parties' submissions

In the Government's opinion, no evidence was obtained by the investigators to confirm that Movsar and Movladi Nasukhanov had been deprived of their liberty in breach of the guarantees set out in Article 5 of the Convention.

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 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 and Others, cited above, § 122).

The Court has found it established that Movsar and Movladi Nasukhanov were abducted by State servicemen on 14 February 2002. Their dead bodies were discovered on 18 February 2002. Since it is impossible to establish the time of death of Movsar and Movladi Nasukhanov, the Court assumes that there might have been an undetermined period of time during which the two men were kept alive under the control of State servicemen.

The detention of the applicants' relatives was not acknowledged, was not logged in any custody records and no official trace of their subsequent whereabouts or fate exists. 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 records noting such matters as the name of the detainee, the date, time and location of detention, reasons for it 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).

In view of the foregoing, the Court finds that Movsar and Movladi Nasukhanov 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.

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicants complained that they had been deprived of effective remedies in respect of the alleged violations of Articles 2 and 3, 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 been granted victim status; moreover, they had had an opportunity to challenge the acts or omissions of the investigating authorities in court. 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

In so far as the applicants' complaint concerns an alleged lack of effective remedies in respect of their mental suffering, the Court points out that it has declared their complaint under Article 3 of the Convention inadmissible. It therefore considers that the applicants did not have an arguable claim of a violation of this Convention provision. Accordingly, their complaint under Article 13 that they had no effective remedies in relation to this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).

As to the complaint about an alleged lack of effective remedies in respect of the violation of Article 2 of the Convention, the Court notes that this part of the 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 and the ill-treatment 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.

VI. 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 claimed 100,000 euros (EUR) jointly in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family members.

The Government considered that the amount claimed was excessive.

The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and killings of the applicants' relatives. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award EUR 100,000 to the applicants jointly under this head, plus any tax that may be chargeable on this amount.

B. 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, and the drafting of legal documents submitted to the Court and the domestic authorities at a rate of EUR 50 per hour for the SRJI lawyers and EUR 150 for the SRJI senior staff, as well as administrative expenses, translation and courier delivery fees. The aggregate claim in respect of costs and expenses related to the applicants' representation amounted to EUR 4,445.85, to be paid into the applicants' representatives' account in the Netherlands.

The Government pointed out that the applicants should be entitled to the reimbursement of their costs and expenses only in so far as it had been shown that they had actually been incurred and were reasonable as to quantum (see Skorobogatova v. Russia, no. 33914/02, § 61, 1 December 2005).

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, cited above, § 220).

Having regard to the details of the information and legal representation contracts submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred.

As to whether the costs and expenses incurred for legal representation were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes, however, that the case involved little documentary evidence, in view of the Government's refusal to submit most of the case file. The Court thus doubts that the case involved the amount of research claimed by the applicants' representatives

Having regard to the details of the claims submitted by the applicants, the Court awards them EUR 4,000 together with any value added tax that may be chargeable to the applicants; the net award is to be paid into the representatives' bank account in the Netherlands, 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

Decides to join to the merits the Government's objection as to non exhaustion of criminal domestic remedies and rejects it;

Declares the complaints under Articles 2 and 5 of the Convention, as well as the complaint under Article 13 of the Convention in conjunction with Article 2 of the Convention admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 2 of the Convention in respect of Movsar and Movladi Nasukhanov;

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 of the deaths of Movsar and Movladi Nasukhanov;

Holds that there has been a violation of Article 5 of the Convention in respect of Movsar and Movladi Nasukhanov;

6. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

7. Holds

(a) that the respondent State is to pay the applicants, 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 100,000 (one thousand euros) to the applicants jointly in respect of non-pecuniary damage, plus any tax that may be chargeable to that amount, to be converted into Russian roubles at the rate applicable at the date of settlement;

(iii) EUR 4,000 (four thousand 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 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

NASUKHANOVY v. RUSSIA - 1572/07

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NASUKHANOVY v. RUSSIA - 1572/07

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