GAMBULATOVA v. RUSSIA - 11237/10 - Chamber Judgment [2015] ECHR 327 (26 March 2015)

In the case of Gambulatova v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 3 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 11237/10) 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 a Russian national, Ms Zulay Gambulatova (“the applicant”), on 22 February 2010.

2. The applicant was represented by Ms Maryam Irizbayeva and Mr Dokka Itslayev, lawyers practising in Grozny. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that in June 2001 her son Mr Vakhit Gambulatov had been abducted by State servicemen in Chechnya and that no effective investigation into the matter had taken place.

4. On 8 June 2011 the application was communicated to the Government. It was also decided to grant it priority under Rule 41 of the Rules of Court and to rule on its admissibility and merits at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1949 and lives in Mayrtup in Shali district, Chechnya. She is the mother of Mr Vakhit (also spelt as Vakhid) Gambulatov, who was born in 1976.

A. Abduction of Mr Vakhit Gambulatov

6. On 28 June 2001 (in the documents submitted the date also referred to as 29 June 2001) Mr Vakhit Gambulatov left home and did not return. The next day the applicant and her relatives learned that on 28 June 2001 Mr Vakhit Gambulatov and his fellow villager Mr Ramzan S. had been arrested at the checkpoint located between the villages of Tsentoroy and Bachi-Yurt and taken in an APC to the Kurchaloy district military commander’s office (“the military commander’s office”) and from there to the Kurchaloy temporary district department of the interior (“the Kurchaloy VOVD”) situated in the same courtyard.

7. On 29 June 2001 duty officers at the military commander’s office confirmed that Mr Vakhit Gambulatov had been detained on their premises. For the next couple of weeks the applicant spent every day next to the military commander’s office waiting for her son’s release. On the 15th or 16th day of his detention Mr Vakhit Gambulatov passed a note to the applicant stating that he was not aware of the reasons for his arrest, but that he would be released soon. Every day the applicant brought food for Mr Vakhit Gambulatov, and twice a week she collected his laundry from the guards.

8. At some point in late July 2001 the applicant and her daughter were told by an officer at the military commander’s office that Mr Vakhit Gambulatov would be released on 29 July 2001. However, the applicant’s son was not released and at the beginning of August 2001 (in the documents submitted the date was also referred to as the beginning of July 2001) a duty officer told the applicant that her son had been transferred elsewhere.

9. The applicant has had no news of her son since.

10. The Government did not dispute the applicant’s statement concerning the factual circumstances of her son’s detention. In their submission concerning the admissibility and merits of the application they stated, amongst other things, the following:

“... On 29 June 2001 the applicant’s son Mr Vakhit Gambulatov was taken for identification to the temporary detention centre of the Kurchaloy VOVD. On 26 July 2001 he was released from detention and disappeared. His whereabouts have not been established since ...”

B. Official investigation into the detention and disappearance

11. The Government submitted copies of documents from the criminal case file no. 39099 opened in connection with the disappearance of Mr Vakhit Gambulatov. The relevant information may be summarised as follows.

12. On 2 August 2001 the applicant complained about her son’s detention to the Argun prosecutor’s office and to the Kurchaloy district military commander’s office. She stated that her son Vakhit had been detained in the Kurchaloy VOVD (the police station) between 28 June and 31 July 2001.

13. On 6 December 2001 the investigators asked the Kurchaloy VOVD for information about Mr Vakhit Gambulatov’s arrest. On the same date the VOVD replied that on 29 June 2001 Mr Vakhit Gambulatov and Mr Ramzan S. had been brought to their premises for a passport check and released on 29 July 2001.

14. On 8 December 2001 the Argun district prosecutor’s office initiated a criminal investigation into the events under Article 126 of the Criminal Code (abduction). The case file was given the number 39099.

15. The investigator sent requests to various temporary detention centres for information about Mr Vakhit Gambulatov’s detention. These requests did not yield any information.

16. On 7 February 2002 the applicant was granted victim status and questioned about the events. She gave a statement concerning her son’s detention at the police station similar to the one submitted before the Court.

17. On 8 February 2002 the investigation was suspended. The applicant was not informed of this. From the contents of the case file it appears that the investigation was suspended between February 2002 and May 2008 and that meanwhile the applicant and her relatives contacted various authorities with requests for assistance in their search for Mr Vakhit Gambulatov and for information on the progress of the investigation into his disappearance.

18. On 15 May 2008 the applicant asked for access to the investigation file and on 16 May 2008 her request was granted.

19. On 29 May 2008 the applicant found a pro bono lawyer who agreed to represent her in the criminal case concerning her son’s disappearance.

20. On 7 July 2008 the applicant’s lawyer asked the investigators to take steps to establish whether Mr Vakhit Gambulatov was detained at the police station on or after 28 June 2001.

21. On 8 July 2008 the investigation was resumed. The applicant was informed.

22. In July 2008 the investigator sent requests for information to various law-enforcement bodies in Chechnya; none of the requests yielded any information.

23. On 11 July 2008 the investigators again questioned the applicant, this time with an interpreter, because of the applicant’s limited knowledge of Russian. The applicant reiterated her previous statement concerning her son’s detention on the premises of the Kurchaloy VOVD and her visits there with her sister Ms D.U. and fellow villagers. She reiterated that she had passed on food and clean clothes to her son while he was detained in the VOVD, and that on 26 July 2001 one of the servicemen at the police station had told her that Mr Vakhit Gambulatov would be released soon; on 31 July 2001 she had arrived at the VOVD, the servicemen had given back the clean clothes she had brought for her son and told her that he had been released on 29 July 2001. The applicant further stated that for several years after her son’s abduction she had complained about his disappearance to a number of law-enforcement bodies, including the Chechnya prosecutor’s office, and to various public organisations which requested information on Mr Vakhit Gambulatov’s whereabouts on her behalf.

24. On 12 July 2008 the investigators questioned the applicant’s son Mr As.G., whose statement was similar to the applicant’s account submitted to the Court.

25. On 13 July 2008 the investigators questioned the applicant’s relative Ms Zh.U., whose statement obtained with interpretation was similar to that of the applicant. In addition, the witness stated that for a number of years the search for Mr Vakhit Gambulatov and the communication with the authorities regarding the matter had been handled by her and the applicant.

26. On 14 July 2008 the investigators questioned the applicant’s daughter Ms S.G., whose statement was similar to the applicant’s account submitted to the Court.

27. On 8 August 2008 the investigation was suspended. The applicant was informed.

28. On 11 September 2008 the applicant asked for an update on the progress of the investigation, and on 12 September 2008 she was provided with an update.

29. On 10 November 2008 the applicant requested that the investigators take steps to examine the grounds for her son’s detention in the VOVD after the arrest.

30. On 10 November 2008 the investigation was resumed and then suspended the following day, 11 November 2008. The applicant was informed.

31. On 13 November 2008 the applicant’s lawyer requested that the investigators take procedural steps to join the investigations of the disappearance of her son Vakhit Gambulatov and that of Mr Ramzan S., as both men had been taken away simultaneously and by the same persons. On 15 November 2008 her request was granted in part.

32. On 19 November 2008 the investigation was resumed.

33. On 19 November 2008 the investigators questioned officers V.D. and A.Ch., who had worked in the Kurchaloy VOVD in 2001. Both officers denied having any information pertaining to the disappearance of the applicant’s son.

34. On 22 November 2008 the investigation was again suspended. The applicant was informed.

35. On 16 August 2009 the applicant’s lawyer requested access to the investigation file, and on 24 August 2009 the investigators granted the request.

36. From the documents submitted it appears that the investigation into the whereabouts of the applicant’s son is still pending.

II. RELEVANT DOMESTIC LAW

37. For a summary of the relevant domestic law and practice and for international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia, (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. The parties’ submissions

1. Government

38. The Government argued that the application should be dismissed for failure to exhaust domestic remedies, as the investigation was still pending. They stressed, in particular, that the applicant had failed to appeal against the investigators’ decisions to domestic courts, and that she could have claimed damages in civil proceedings. They further stated that in the absence of a final domestic decision the six-month time-limit did not apply in the applicant’s case.

2. The applicant

39. The applicant argued that the investigation had been pending for a long time without producing any tangible results. That remedy had proved to be ineffective and her complaints, as well as any other potential remedies, had proved futile. She further argued that she had complied with the six-month rule and there had been no excessive or unexplained delays in the submission of her application to the Court. In particular, she submitted that after the initiation of the criminal investigation she had had no reason to doubt its effectiveness. She pointed out that the armed conflict in the region had led her to believe that delays in the investigation were inevitable. Moreover, owing to her poor command of Russian, her lack of legal knowledge and funds to hire a lawyer, and in the absence of information concerning the Convention standards for an effective investigation, she had been unable to assess the effectiveness of the pending criminal proceedings. As soon as she had been able to obtain legal advice from the pro bono lawyer, she had realised that the investigation was ineffective and had applied to the Court.

40. Referring to Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, the applicant further argued that the six-month rule did not apply to “continuing situations” such as cases of enforced disappearances.

B. The Court’s assessment

1. Compliance with the six-month rule

(a) General principles

41. Although the respondent Government did not raise any objection under this head, this issue calls for the Court’s consideration proprio motu (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011).

42. The Court reiterates that the purpose of the six-month rule is to promote legal certainty, to ensure that cases are dealt with within a reasonable time, and to protect the parties from prolonged periods of uncertainty. The rule also provides the opportunity to ascertain the facts of the case before memory of them fades away with time (see Abuyeva and Others v. Russia, no. 27065/05, § 175, 2 December 2010).

43. Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. In the absence of any such decision, the period runs from the date of the acts or measures complained of. Where an applicant avails himself of an existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the six-month time-limit is calculated from the date when the applicant first became, or ought to have become, aware of those circumstances (see, among others, Zenin v. Russia (dec.), no. 15413/03, 24 September 2009).

44. In cases concerning disappearances, unlike in cases concerning ongoing investigations into the deaths of applicants’ relatives (see, for example, Elsanova v. Russia (dec.), no. 57952/00, 15 November 2005; Narin v. Turkey, no. 18907/02, § 50, 15 December 2009, and Bogdanovic v. Croatia (dec.), no. 72254/11, 18 March 2014, with further references), the Court has held that taking into account the uncertainty and confusion typical of such situations, the nature of the ensuing investigations implies that the relatives of a disappeared person may be justified in waiting lengthy periods of time for the national authorities to conclude their proceedings, even if those proceedings are sporadic and plagued by problems. As long as there is some meaningful contact between families and the authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a time when the relatives must realise that no effective investigation has been, or will be, provided. When this stage is reached will depend, unavoidably, on the circumstances of the particular case. Where more than ten years have elapsed since the incident, the applicants have to justify such a delay in lodging their application with the Court (see Varnava, cited above, §§ 162-63).

45. Applying the Varnava principles, the Court found in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) that the applicants, who had waited for a period of almost ten years after the disappearance of their relative before lodging their application, had complied with the six-month rule, because an investigation was being conducted at the national level. The Court reached a similar conclusion in another case, where the domestic investigation into the events had been pending for more than eight years and where the applicants were doing all that could be expected of them to assist the authorities (see Bozkır and Others v. Turkey, no. 24589/04, § 49, 26 February 2013).

46. In cases concerning enforced disappearances in Chechnya and Ingushetia the Court has examined applications lodged between nine and ten years after the disappearances and the initiation of a criminal investigation (see, for example, Kaykharova and Others v. Russia, nos. 11554/07, 7862/08, 56745/08 and 61274/09, §§ 128 and 129, 1 August 2013; Saidova v. Russia, no. 51432/09, §§ 52 and 53, 1 August 2013; and Gakiyev and Gakiyeva v. Russia, no. 3179/05, §§ 312 and 315, 23 April 2009), where certain of the gaps in the ongoing investigations lasted up to four and a half years. The Court found that the applicants had justified the delays in lodging their applications with the Court by demonstrating that they had maintained reasonable contact with the authorities, sought information on the progress of the investigation, and lodged their applications shortly after obtaining information casting reasonable doubt on the effectiveness of the ongoing proceedings.

47. By contrast, the Court has declared inadmissible applications where the applicants waited for more than ten years to lodge their applications with the Court, and where there was, for a long time, no evidence allowing them to believe that the investigation would be effective. Some examples are the case of Açış v. Turkey (no. 7050/05, §§ 41-42, 1 February 2011), where the applicants complained to Strasbourg more than twelve years after the disappearance, and in the case of Utsmiyeva and Others v Russia (no. 31179/11 (dec.), 18 September 2014) where the applicants complained fourteen years after the disappearance and where the investigation was dormant for more than seven years along with the applicants’ complete inaction during the period of inactivity. The Court rejected these applications as lodged out of time for failure to demonstrate any concrete advance in the domestic investigation that would justify the applicants’ delays of more than ten years.

(b) Application of the principles to the present case

48. The Court observes at the outset that the Government did not dispute the applicant’s submission that between 2002 and 2008 she had maintained contact with the authorities by applying to law-enforcement authorities for assistance in the search for her son and for information on the progress of the investigation into his disappearance (see paragraphs 17 and 39 above).

49. Further, the Court notes that the applicant lodged her application with the Court within eight and a half years of the disappearance, and that the investigation into the incident was still pending. She informed the public prosecutor’s office of her son’s disappearance as soon as she was told he had been transferred elsewhere: in her complaint she specified that he had been detained at the police station for over a month and had then been taken elsewhere (see paragraph 12 above). The applicant submitted further information to the authorities by providing a statement to the official investigation. During the initial stage of the criminal proceedings which opened in August 2001 the authorities took several steps, including questioning the applicant and obtaining official police confirmation that her son had been detained on their premises (see paragraphs 13 and 16 above). Then in February 2002 the investigation was suspended; the applicant, who had been granted victim status in the criminal case, was not informed of that decision. Having no information on the progress of the proceedings, in May 2008, that is in six years and three months after the suspension, the applicant asked for permission to familiarise herself with the contents of the investigation file (see paragraph 18 above). Once she had seen the file, the applicant sought free legal counsel (a pro bono lawyer) and with the lawyer’s assistance asked for a number of steps to be taken to expedite the search for her disappeared son. Following her request, the authorities took steps to obtain evidence, including taking statements from her, three of her family members and two police officers (see paragraphs 23-26 and 33 above). Subsequently the applicant’s counsel continued to request information on the progress of the investigation (see paragraphs 31 and 35 above).

50. The Court considers that in the circumstances of the case the applicant did all that could be expected of her to assist the authorities with the investigation into her son’s disappearance. The steps taken by the investigators upon resumption of the proceedings in May 2008 spurred by her initiative must have appeared to her as a promising new development. Her active stance in the proceedings, the efforts made to obtain legal assistance and further evidence, in the absence of information about the suspension of the investigation in February 2002, do not enable the Court to

find that the applicant failed to show the requisite diligence by unreasonably waiting for the pending investigation to yield results. The Court notes the gap in the initial stage of the proceedings of six years and three months, but it considers that in the present case this cannot be held against the applicant or interpreted as failure to comply with the six-month requirement.

51. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the period in question, and that the applicant explained the delay in her application to Strasbourg by the period of inactivity in the domestic proceedings (see Varnava and Others, cited above, § 166, and Er and Others, cited above, § 60). In the light of the foregoing, the Court finds that the applicant complied with the six-month time-limit.

2. Exhaustion of domestic remedies

52. As regards a civil action to obtain redress for damage sustained as a result of 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 (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006. Accordingly, the Court confirms that the applicant was not obliged to pursue civil remedies. The preliminary objection in this regard is thus dismissed.

53. As regards criminal-law remedies, the Court has concluded that the ineffective investigation of disappearances that occurred in Chechnya and Ingushetia between 1999 and 2006 constituted a systemic problem, and that criminal investigations were not an effective remedy in this respect (see Aslakhanova and Others, cited above, § 217). In such circumstances, and noting the absence over the years of tangible progress in the criminal investigation into the abduction, the Court concludes that this objection must be dismissed, since the remedy relied on by the Government was not effective in the circumstances.

II. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS

A. The parties’ submissions

54. The Government did not contest the essential facts underlying the application. In their submission on the admissibility and merits of the case the Government claimed that the applicant’s son Mr Vakhit Gambulatov had been detained by representatives of the State authorities during a security operation but then released (see paragraph 10 above). They further stated that the investigation had not obtained any evidence that State agents had been involved in the disappearance of the applicant’s son after his release from the police station.

55. The applicant submitted that it had been established “beyond reasonable doubt” that State agents had been involved in her son’s abduction and disappearance. In support of that assertion she referred to the ample evidence contained in her submission and that of the Government, as well as the contents of the criminal investigation file. She also submitted that she had made a prima facie case that her son had been abducted by State agents, and that the Government had failed to provide a plausible explanation of the events. In view of the absence of any news of her son for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, she asked the Court to consider him dead.

B. The Court’s assessment

56. The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR-2012).

57. The Court has addressed a whole series of cases concerning allegations of disappearances in Chechnya. Applying the above-mentioned principles, it has concluded that if applicants make a prima facie case of abduction by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

58. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life-threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, 24 October 2013).

59. The Court has made findings of presumptions of deaths in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years.

60. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 12-14, 23-26, 29 and 31 above) demonstrate that the applicant’s son, Mr Vakhit Gambulatov, was detained on 28 June 2001 by a group of armed servicemen and taken to the Kurchaloy VOVD police station, and has been missing since then. In her submissions to the authorities the applicant consistently maintained that her son had been abducted by State agents and detained at the Kurchaloy VOVD for a month. The investigators accepted her version of events and took steps to verify this assertion (see paragraphs 12-13 above). In view of all the evidence in its possession, the Court finds that the applicant has presented a prima facie case that her son was detained by State agents and subsequently disappeared.

61. The Government did not provide a satisfactory and convincing explanation for the events in question. Bearing in mind the general principles enumerated above, the Court finds that Mr Vakhit Gambulatov was taken into custody by State agents on 28 June 2001 and taken to Kurchaloy VOVD. In view of the absence of any reliable news of him since that date and the life-threatening nature of such detention (see paragraph 58 above), the Court also finds that Mr Vakhit Gambulatov may be presumed dead following his unacknowledged detention.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

62. The applicant complained under Article 2 of the Convention that her son had disappeared after being detained by State agents and that the domestic authorities had failed to carry out effective investigations into the matter. Article 2 reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

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

63. The Government contended that the complaints should be rejected as unsubstantiated, as the investigation into the disappearance had not obtained any evidence that Mr Vakhit Gambulatov had been held under State control or that he was dead. They further noted that all necessary steps were being taken to comply with the obligation to conduct an effective investigation.

64. The applicant maintained her complaints.

B. The Court’s assessment

1. Admissibility

65. The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The complaints under Article 2 of the Convention must therefore be declared admissible.

2. Merits

(a) Alleged violation of the right to life of Mr Vakhit Gambulatov

66. The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which no derogation is permitted. In the light of the importance of the protection afforded by Article 2, the Court 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, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, and Avşar v. Turkey, no. 25657/94, § 391, ECHR 2001-VII (extracts)).

67. The Court has already found that the applicant’s son must be presumed dead following his detention by State servicemen and that his death can be attributed to the State. In the absence of any justification put forward by the Government, the Court finds that there has been a violation of Article 2 of the Convention in its substantive aspect.

(b) Alleged inadequacy of the investigation into the abduction

68. The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances which have occurred, in particular in Chechnya and Ingushetia, between 1999 and 2006, and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 217). In the case at hand, as in many previous similar cases reviewed by the Court, the investigation has been pending for a number of years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicant’s missing son. While the obligation to investigate effectively is one of means and not of results, the Court notes that the criminal proceedings have been plagued by a combination of defects such as those enumerated in Aslakhanova and Others (cited above, §§ 123-25). The investigation had several periods of inactivity, which further diminished the prospects of solving the crime. No meaningful steps have been taken to identify and question the servicemen who could have witnessed, registered or participated in the detention of the applicant’s son, either at the checkpoint or on the premises of the Kurchaloy VOVD.

69. In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances of the disappearance and death of Mr Vakhit Gambulatov. Accordingly, there has been a violation of Article 2 of the Convention in its procedural aspect.

IV. ALLEGED VIOLATIONS OF ARTICLES 3, 5 AND 13 OF THE CONVENTION

70. The applicant complained of a violation of Articles 3 and 5 of the Convention on account of the mental suffering caused her by the disappearance of her son and the unlawfulness of his detention. She also argued that, contrary to Article 13 of the Convention, there had been no domestic remedies available in respect of the alleged violations, in particular those under Articles 2 and 3. The relevant parts of these Articles read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties’ submissions

71. The Government contested the applicant’s claims.

72. The applicant reiterated her complaints.

B. The Court’s assessment

1. Admissibility

73. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

74. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 in respect of the close relatives of the victim. The essence of such a violation does not lie mainly in the fact of the “disappearance” of the family member, but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006-XIII (extracts)). Where news of the missing person’s death is preceded by a sufficiently long period in which he or she may be deemed disappeared, there exists a distinct period during which an applicant suffers the uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances (see Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII (extracts)).

75. The Court reiterates its findings regarding the State’s responsibility for the abduction and the failure to carry out meaningful investigations into the fate of the disappeared person. It finds that the applicant, who is the mother of the disappeared, must be considered a victim of a violation of Article 3 of the Convention on account of the distress and anguish which she suffered, and continue to suffer, as a result of her inability to ascertain the fate of her son and of the manner in which her complaints have been dealt with.

76. The Court furthermore confirms that since it has been established that the applicant’s son was detained by State agents, apparently without any legal grounds or acknowledgement of such detention, this constitutes a particularly grave violation of the right to liberty and security of persons enshrined in Article 5 of the Convention.

77. The Court reiterates its findings regarding the general ineffectiveness of criminal investigations in cases such as the one under examination here. In the absence of results from a criminal investigation, any other possible remedy becomes inaccessible in practice.

78. The Court thus finds that the applicant did not have an effective domestic remedy at her disposal for her grievances under Articles 2 and 3, in breach of Article 13 of the Convention (see, for example, Aslakhanova and Others, cited above, § 157).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79. 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

80. The applicant made no claim in respect of pecuniary damage. She asked the Court to award her 500,000 euros (EUR) in respect of non-pecuniary damages to compensate the suffering she has endured, and continues to endure, as a result of her son’s disappearance and the authorities’ reaction to her grief.

81. The Government submitted that the award should be determined on an equitable basis.

82. The Court notes that it has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicant’s son. The applicant herself has been found to have been victim of a violation of Article 3 of the Convention on account of the mental distress she has endured as a result of the disappearance of her son and the authorities’ attitude to it. The Court thus accepts that she has suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It considers it appropriate to award the applicant EUR 60,000 under this heading, plus any tax that may be chargeable to her.

B. Costs and expenses

83. The applicant was represented by Ms Maryam Irizbayeva, who claimed EUR 1,320, and Mr Dokka Itslayev, who claimed EUR 4,208 for legal representation. The lawyers also claimed administrative and translation expenses in the amount of EUR 483. The aggregate claim in respect of costs and expenses related to the applicant’s legal representation amounted to EUR 6,011.

84. The Government stated that the applicant had failed to substantiate her claim for costs and expenses and invited the Court to reject it.

85. The Court has to establish first whether the costs and expenses indicated by the applicant’s representatives were actually incurred and, second, whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV).

86. In view of its conclusions, the principles enumerated above and the parties’ submissions, the Court awards the applicant EUR 3,000, plus any tax that may be chargeable to her. The award in respect of costs and expenses is to be paid into the representative’s bank account, as identified by the applicant.

C. Default interest

87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a substantive violation of Article 2 of the Convention in respect of Mr Vakhit Gambulatov;

3. Holds that there has been a procedural violation of Article 2 of the Convention in respect of the failure to investigate the disappearance of Mr Vakhit Gambulatov;

4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant on account of her son’s disappearance and the authorities’ response to her suffering;

5. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Vakhit Gambulatov on account of his unlawful detention;

6. Holds there has been a violation of Article 13 of the Convention in conjunction with Articles 2 and 3 of the Convention;

7. Holds

(a) that the respondent State is to pay the applicant, 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 the currency of the respondent State at the rate applicable on the date of settlement:

(i) EUR 60,000 (sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the net award to be paid into the representative’s bank account, as identified by the applicant;

(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;

8. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 26 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Isabelle Berro
Deputy Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> GAMBULATOVA v. RUSSIA - 11237/10 - Chamber Judgment [2015] ECHR 327 (26 March 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/327.html Cite as: [2015] ECHR 327