ALIYEV AND GADZHIYEVA v. RUSSIA - 11059/12 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 640 (12 July 2016)

In the case of Aliyev and Gadzhiyeva v. Russia,

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

          Luis López Guerra, President,
          Helena Jäderblom,
          Johannes Silvis,
          Dmitry Dedov,
          Branko Lubarda,
          Alena Poláčková,
          Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 21 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 11059/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Nizamudin Aliyev and Ms Madina Gadzhiyeva on 22 February 2012.

2. The applicants were represented before the Court by lawyers from the NGO Stichting Russian Justice Initiative (SRJI) (in partnership with the NGO Astreya) (together “SRJI/Astreya”). The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants alleged that two relatives of theirs had been unlawfully detained in 2012 by State agents in Makhachkala, Dagestan and had subsequently disappeared and that the authorities had failed to effectively investigate the matter.

4. On 6 June 2012 the application was communicated to the Government. On 15 June 2015 the parties were requested to provide additional observations and information in respect of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants, Mr Nizamudin Aliyev (“the first applicant”) and Ms Madina Gadzhiyeva (“the second applicant”), live in Makhachkala, Dagestan. They were born in 1960 and 1987 respectively. The first applicant is the father of Mr Sirazhudin Aliyev, who was born in 1988, and the second applicant is the wife of Mr Gazimagomed Abdullayev, who was born in 1988.

A. Abduction of Mr Sirazhudin Aliyev and Mr Gazimagomed Abdullayev

6. At about 2.30 p.m. on 21 January 2012 Sirazhudin Aliyev and Gazimagomed Abdullayev were driving on an errand in the latter’s VAZ car (the Lada Kalina model) with the registration number E261KP 05 RUS in the centre of Makhachkala, Dagestan, when they were stopped by a group of several armed men in the uniforms of the State Traffic Police (Государственная Инспекция Безопасности Дорожного Движения Министерства внутренних дел Российской Федерации) (hereinafter “the traffic police”), who were driving in a white Toyota and a black VAZ car (the Lada Priora model). The armed men discharged one gunshot, hit Abdullayev’s car with their truncheons, forced Aliyev and Abdullayev out of their car, handcuffed them and placed them separately into their two vehicles and drove away. Shortly thereafter Abdullayev’s car was driven away by the abductors. The abduction took place in the presence of numerous witnesses.

7. According to the applicants, their relatives were taken to the premises of the Dagestan Centre for Terrorism Counteraction (Центр Противодействия Экстремизму Министерства Внутренних Дел Дагестана) (hereinafter “the CTC”) in Makhachkala.

8. On 28 January 2012 the flat of the sister of Gazimagomed Abdullayev was searched by police officers from the CTC.

9. According to the applicants, on 2 February 2012 they learned from sources whose identity they did not disclose that their relatives had been allegedly initially detained on the premises of the CTC in Makhachkala, Dagestan, and then - about two days later - taken to the CTC headquarters in the Stavropol Region.

10. The Government did not dispute the circumstances of the abduction, as presented by the applicants. However, they denied any involvement of State agents in the incident and pointed out that the applicants had not witnessed the abduction; they also stated that the witness statements concerning the incident were unreliable, and that the allegations of State agents’ involvement had been completely unsubstantiated.

B. Official investigation into the abduction

11. The Court made two requests for copies of the contents of the investigations file. In reply to the Court’s first request, the Government furnished it with copies of documents (numbering 378 pages) reflecting the proceedings between January and August 2012; in reply to the Court’s second request the Government supplied copies of documents (numbering 261 pages) reflecting the proceedings between September 2012 and July 2015. Their contents can be summarised as follows.

12. On 21 January 2012 the applicants and their relatives complained about the abduction to a number of local law-enforcement agencies, including the Dagestan Public Prosecutor and the investigations department of the Leninskiy district prosecutor’s office in Makhachkala. In their complaints they stated, amongst other things, the following:

“Today, that is to say 21 January [2012], at about lunch time, Sirazhudin Aliyev, who was born in 1988, and Gazimagomed Abdullayev, who was born in 1988, left home in a Lada Kalina automobile with the registration numbers E261KP 05 RUS and drove in the direction of the Eastern Market [in Makahchkala] ...

However, when they were in their car in the vicinity of the Eastern Market, seven or eight unidentified persons carrying firearms and wearing masks and camouflage uniforms forced them out of their car and took them away in two [one white, one black] Lada Priora cars.

The Lada Kalina car of Gazimagomed Abdullayev was also taken away by those persons ...

In the light of the above, we are seriously concerned that our children could have been unlawfully deprived of their liberty by officials of law-enforcement agencies, [or] special services and subjected to torture or ill-treatment.

On the basis of the above, we request that this complaint be examined ... and that a criminal case be opened ... [and that] the perpetrators be identified and prosecuted ...”

13. On 21 January 2012 an operational search officer from the Leninskiy district police station reported to the head of the station that the duty officers had received a telephone call concerning an abduction. Upon arrival at the crime scene he had spoken on the telephone to the woman who had called about the incident. The woman had told him that she had called the police by mistake and asked to be left alone. The operational search officer further stated that after talking to local residents, he had been unable to find any witnesses to the abduction.

14. On 21 January 2012 the investigators questioned the first applicant’s wife, Ms T.A., who stated that she had a son, Sirazhudin Aliyev, and a daughter, Ms Zaira Aliyeva. In 2011 her daughter had been arrested by the Dagestan Federal Security Service (Управление Федеральной Службы Безопасности по Республике Дагестан (ФСБ)) (hereinafter “the FSS”) on suspicion of involvement with illegal armed groups but released ten days later without being charged. At about 5 p.m. on 21 January 2012 a young man had arrived at the store where T.A. had been working and asked her to dial Mr Sirazhudin Aliyev’s mobile number. She had tried, but he had not got through to him. Then the man had told her that her son had been abducted by men in special uniforms and masks. After that the young man had left. According to T.A., her son had not had any enemies or unpaid debts.

15. On 21 January 2012 the investigators questioned the mother of Gazimagomed Abdullayev, Ms P.A., who stated that she had not witnessed the abduction and had learned of it from her relatives.

16. On 21 January 2012 the investigators questioned Gazimagomed Abdullayev’s brother, Mr G.A., who stated that he had not witnessed the abduction but had learned of it from his relatives.

17. On 22 January 2012 the investigators examined the crime scene. No evidence was collected.

18. On 22 January 2012 the investigators questioned six local residents who owned black Lada Priora VAZ cars about their possible involvement in the abduction. No information indicating such involvement was obtained.

19. Between 22 and 24 January 2012 the investigators questioned several salespersons and taxi drivers who had been working in the vicinity of the crime scene on the date of the abduction. All of them stated that they had not witnessed the incident.

20. On 25 January 2012 a local religious association complained to the President of Dagestan on behalf of the applicants. In its letter it stated that Sirazhudin Aliyev and Gazimagomed Abdullayev had been abducted at the Eastern Market on 21 January 2012 and that the abductors, who had fired one gunshot, had been, “judging by all indications, from law-enforcement agencies”. In the end of January 2012 this complaint was forwarded to the investigators for examination and included in the investigation file.

21. On 29 January 2012 the investigators questioned the first applicant, who provided them with a detailed account of the abduction, as related to him by a female witness named Fatima (in the documents submitted also referred to as “Fatimakhanum”), according to whom his son, Sirazhudin Aliyev, and his son’s friend, Gazimagomed Abdullayev, had been abducted by officers from the traffic police. The abductors had been in black masks and had fired one gunshot. The two young men had been forced by them into two separate (one black, one white) Lada Priora VAZ cars with registration numbers indicating that they were from the Stavropol region. According to the Government’s submission of 12 September 2012, on an unspecified date between January and August 2012 the investigators had tried to question the witness, but to no avail, as she had left her place of permanent residence and moved elsewhere.

22. On 31 January 2012 the Investigations Department initiated a criminal investigation into the abduction under Articles 126 and 162 of the Criminal Code (kidnapping and highway robbery) and the case file was given the number 20150.

23. On 2 February 2012 the investigators questioned Ms M.A., who stated that on 21 January 2012 she had been a passenger on local minivan bus no. 4 (together with other passengers); after the minibus had pulled up next to the market she had seen two young men on the ground being handcuffed. She had immediately called the police and reported the incident, adding that a tall man of athletic build in a black face mask had been standing next to the two young men, but that she had not managed to clearly note the features of the other men who had participated in the incident.

24. On 4 February 2012 the investigators questioned the second applicant, who stated that she had learned from her relatives of her husband’s abduction. On 28 January 2012 she had arrived at the house of the parents of her abducted husband; after her arrival, men in face masks had told her to go with them to the Kirovskiy district police station in Makhachkala. She had agreed to go with them, accompanied by her brother, Mr G.G.; however, instead of the police station, they had been taken to the CTC, where she had been questioned about telephone numbers that had been called by her abducted husband. After that she had been photographed, samples of her hair and nails had been taken and then she and her brother had been released.

25. On 9 and 10 February 2012 the applicants lodged complaints in respect of their relatives’ abduction with the Dagestan Minister of the Interior (Министерство Внутренних Дел Республики Дагестан) and the FSS. They described the circumstances of the abduction and asked to be told whether the police and FSS officers had participated in it.

26. On 15 February 2012 the first applicant was granted victim status in the criminal case and questioned. He provided a detailed account of the abduction that was similar to that submitted to the Court. In particular, he stated that he had not been present during the incident but had learned of it from his wife. According to her, the abductors had been in the uniforms of the traffic police in VAZ cars (the Lada Priora model - one white and one black) with registration numbers containing the digits 177 or 777, indicating that they were from the Stavropol region. The group of seven or eight abductors had stopped a car containing Sirazhudin Aliyev and Gazimagomed Abdullayev, forced them out, put them into their own vehicles and driven off. A few minutes later someone had driven the abducted men’s car away. From an unidentified source the first applicant learned that certain lawyers were assisting in the release of the abducted men. He had been told by those lawyers to meet with someone at 7 p.m. on 3 February 2012 in a VAZ car (the Lada Priora model) in order to receive information about his son. When the first applicant had gone to the meeting, he had spoken with an unidentified man who had told him that for two days after the abduction Sirazhudin Aliyev and Gazimagomed Abdullayev had been detained at the CTC and that then they had been transferred to the North Caucasus Headquarters of the CTC in the Stavropol region under the command of General Chenchik. According to the applicant, neither he nor his wife had found that information credible; the abductors had most probably not been traffic police officers but could have belonged to other law-enforcement agencies and had simply dressed in traffic police uniforms.

27. On 17 February 2012 the second applicant was granted victim status in the criminal case. She stated that she had learned of the abduction from her relatives. On 28 January 2012 she had gone to the parents of her husband and discovered that at least six law-enforcement officers had been conducting a search of their house and that the head of the group had been a certain Mr A.G. The latter had then told the second applicant that she had to go with them to the police station to provide a statement concerning someone who had allegedly been hiding in her flat, as he was wanted by the authorities for the murder of an FSS officer. The second applicant, her child and her brother, Mr G.G., had been taken to the CTC headquarters, where she had been questioned about telephone numbers that had been dialed by her husband. She had then been fingerprinted and samples of her nails and hair had been taken; then she had gone home.

28. On 26 February 2012 the investigators questioned the second applicant’s mother, Ms B.M., who stated that she had not witnessed the abduction and had learned of it from her relatives. She further stated that on 28 or 29 January 2012 her house had been searched by representatives of a law-enforcement agency looking for a man suspected of killing the above-mentioned FSS officer.

29. On 8 and 17 April 2012 the investigators questioned salespersons Ms Z.G., Ms S.B., Ms I.S., Ms A.G. and Ms Z.R., all of whom stated that they had not witnessed the abduction.

30. Between 29 April and 15 May 2012 the investigators questioned three other salespersons and three taxi drivers, all of whom stated that they had not witnessed the abduction.

31. On 18 May 2012 the investigators questioned operational search officer Mr A.G. of the CTC, who stated that the Abdullayev family had been known to them as adherents of illegal armed groups. At the end of January 2012 he had participated in a search of their house conducted together with police officers from the Kirovskiy district police station in Makhachkala (see paragraph 27 above). The search had been conducted in connection with an investigation into the murder of an FSS officer. After the search, the second applicant and her mother had been taken to the CTC headquarters to provide statements to the investigators. The witness had learned of the abduction of Gazimagomed Abdullayev during the conduct of the search.

32. On 31 May 2012 the criminal investigation was suspended; on 31 August 2012 it was resumed following criticism voiced by the supervisory authorities. Explaining the decision to overrule the suspension of the investigation the deputy head of the Dagestan Investigations Department stated, inter alia, the following:

“... the decision to suspend the investigation was taken in violation of Article 208 § 5 of the Criminal Procedure Code - that is to say prematurely, - given that all possible steps had not been taken ...

In connection with the above, the decision should be overruled as unlawful and the investigation should be resumed.

It is necessary that the investigators take the following steps:

- take additional measures to establish the whereabouts and question [the applicants] and the persons with whom on 3 February 2012 [the first applicant] had a meeting concerning the abduction of Sirazhudin Aliyev and Gazimagomed Abdullayev;

- question Sirazhudin Aliyev’s friends, Mr T., Mr S. and Mr D.;

- [(after obtaining court authorisation),] examine the list of mobile telephone calls made by Sirazhudin Aliyev and Gazimagomed Abdullayev ...”

33. On 30 September 2012 the investigation was suspended again. None of the witnesses specified in the above decision to resume the proceedings were questioned. The applicants were informed of the suspension.

34. On 1 October 2012 the investigation was resumed again after criticism from the deputy head of the Dagestan Investigations Department, who stated, inter alia, the following:

“... in violation of part 5 of Article 208 of the Criminal Procedure Code the investigation failed to take all the investigative steps possible to establish the [identity of the perpetrators]; therefore, the decision to suspend the proceedings should be overruled as unlawful.

It is necessary that the investigation take the following steps:

1. Question Sirazhudin Aliyev and Gazimagomed Abdullayev’s close relatives to find out whether ... they received any [conditions to be met in respect of] their return;

...

4. Ask the Russian Federal Service for the Execution of Sentences whether the abducted men are being detained in their facilities;

...

13. Analyse the list of mobile telephone calls made from the telephones [of the abducted men] ...”

35. On 5 November 2012 the investigation was again suspended without any of the supervisory authorities’ orders given on 1 October 2012 being carried out, except for the forwarding of requests for information to various State authorities. The applicants were informed of the suspension.

36. On 28 January 2013 the investigation was again resumed following criticism from the supervisory authorities (this time the Leninskiy district prosecutor in Makhachkala), who pointed out the following:

“... the investigation of the criminal case has been suspended on three occasions for failure to establish the identity of the perpetrators. On each occasion, the decision was similar to the previous ones, without the [requested] steps having been taken.

Such circumstances demonstrate that the investigators violated Article 61 of the Criminal Procedure Code concerning the time-limit for investigation and demonstrate a lack of oversight on the part of the supervisors from the Investigation Committee.

The last decision to suspend ... taken on 5 November 2012 ... should be overruled as unlawful for the following reasons.

An examination of the case file showed that the investigation of the criminal case had been conducted with violations of the criminal procedure regulations. For instance, prior to the suspension of the proceedings, the investigator should have taken all the steps possible in the absence of the suspect or accused and taken all the steps necessary to establish the identity of the perpetrator.

However, the investigation [in the present case] failed to question close relatives of Sirazhudin Aliyev and Gazimagomed Abdullayev ...

The list of mobile telephone calls [made by the abducted men] has not been examined;

Replies to ten requests for information forwarded to the law-enforcement agencies and State bodies have not been received ...”

37. On 4 February 2013 the investigators were ordered to comply with the above instructions within one month and the investigation of the criminal case was forwarded to the investigations department of the Leninskiy district prosecutor’s office in Makhachkala.

38. On 7 February 2013 the investigators examined a list of mobile telephone calls made by the abducted men.

39. On 14 February 2013 the second applicant asked the investigators to provide her with copies of documents from the investigation file concerning the disappearance of her husband stating that she needed them in order to initiate civil proceedings to recognise him a missing person and to obtain compensation for the loss of her family’s breadwinner. On 15 February 2013 her request was granted.

40. On 18 February 2013 the investigators again questioned the second applicant’s mother and Gazimagomed Abdullayev’s mother-in-law, Ms B.M., who confirmed her earlier statement (see paragraph 28 above) and stated that she and her relatives had not heard from Gazimagomed Abdullayev since his abduction.

41. On 4 March 2013 the investigation was suspended again. The applicants were informed thereof.

42. On 12 August 2013 the investigation was again resumed after criticism voiced by the supervisory authorities. The decision overruling the suspension again enumerated the steps not taken by the investigators, in violation of the previously given orders, and stressed that the proceedings were to be resumed, having been adjourned unlawfully. The investigators were instructed to take eighteen steps listed in a special order issued on the same date.

43. On 3 September 2013 the investigators again questioned Gazimagomed Abdullayev’s brother, Mr G.A. (see paragraph 16 above), who stated that at about 4.30 p.m. on 21 February 2012 he had learned of the abduction from his uncle Mr R.A. The two of them, together with the mother of Sirazhudin Aliyev, had gone to see a lawyer named Shamil. According to G.A., Mr R.A. had had information about the names of the eyewitnesses to the abduction.

44. On 3 September 2013 the investigators questioned Gazimagomed Abdullayev’s uncle, Mr R.A., who stated that on 21 January 2012 he had been in his store when two young men had told him that Gazimagomed Abdullayev and Sirazhudin Aliyev had been forced into VAZ cars (one the Lada Priora model and one the 2110 model) and taken away. Gazimagomed Abdullayev’s mobile telephone had been switched off. His car had been taken away by the abductors. After that Mr G.A. and the mothers of the abducted men had gone to a lawyer named Shamil, who had contacts with human rights organisations.

45. On 27 August 2013 the investigators requested court authorisation to obtain a list of mobile telephone calls made by the first applicant between 20 January and 20 February 2012.

46. On 13 September 2013 the investigators obtained and examined the list of the first applicant’s mobile telephone calls.

47. On 14 September 2013 the investigators again questioned the first applicant, who confirmed his earlier statements (see paragraph 21 and 26 above). In addition, he provided a detailed description of his son’s appearance.

48. On 17 September 2013 the investigators again questioned Ms M.A., who confirmed her earlier statement (see paragraph 23 above) and added that the abduction had been witnessed not only by her, but also by the other passengers of minivan bus no. 4; however, she had been the only one who had called the police about the incident.

49. On 18 September 2013 the investigators questioned Ms T.A. (the first applicant’s wife and the mother of Sirazhudin Aliyev), who stated that her daughter, the sister of Sirazhudin Aliyev, had been detained by the FSS on suspicion of involvement in illegal armed groups and an extremist religious movement. In the evening on that date, she had learned of her son’s abduction. From the very beginning, she had suspected that officers of law-enforcement agencies had perpetrated it.

50. On 19 September 2013 the investigators again suspended the proceedings for failure to establish the identity of the perpetrators. The applicants were informed of the suspension.

51. On 28 October 2013 the investigation was resumed again. The relevant decision stated that the proceedings were to be resumed because of “the need to verify the involvement of traffic police officers in the abduction, given that witnesses to the incident stated that the perpetrators looked like policemen”. The applicants were informed of that decision.

52. On 8, 18 and 24 November 2013 the investigators questioned traffic police officers G.O., Z.G. and K.K., all of whom stated that in January 2012 they and their colleagues had not conducted any special operations and that they had not heard of the abducted men before.

53. On 28 November 2013 the investigators again suspended the proceedings and informed the applicants of the suspension.

54. On 20 December 2013 the investigation was again resumed after criticism voiced by the supervisory authorities. The decision stated, amongst other things, the following:

“... the decision to suspend the investigation is premature and unsubstantiated for the following reasons:

The investigators failed to carry out in full the [supervisory authorities’] orders of 12 August 2013 ...

[They] failed to question Ms Z.A., who organised the [first applicant’s] meeting with the persons who had pointed out that the abduction had been perpetrated by officers of law-enforcement agencies ...

The witness statement of Ms M.A. was not re-enacted at the crime scene in order to establish the circumstances of the incident in detail ...

Other numerous deficiencies in the investigation have not been remedied ...”

55. On 1 February 2014 the investigators again questioned the first applicant, who confirmed his earlier statements (see paragraphs 21, 26 and 47 above). He also stated that the perpetrators of the abduction of Sirazhudin Aliyev had most probably been officers of law-enforcement agencies and that his daughter, Ms Zaira Aliyeva, had been killed by law-enforcement agents on 18 January 2014 during a special operation in Makhachkala.

56. On 2 February 2014 the investigators again questioned Gazimagomed Abdullayev’s brother, Mr G.A., who confirmed his earlier statements (see paragraphs 16 and 43 above).

57. On 4 and 8 February 2014 the investigators again questioned Ms B.M. and Ms M.A., both of whom confirmed their earlier statements (see paragraphs 28 and 48 above).

58. On 8 February 2014 the investigators again examined the crime scene (see paragraph 17 above). No evidence was collected.

59. On various dates in February 2014 the investigators obtained samples of blood and saliva from the abducted men’s relatives for expert genetic evaluation and inclusion in the regional DNA database.

60. On 8 February 2014 the investigators examined the first applicant’s house. No evidence was collected.

61. On 9 February 2014 the investigation was again suspended.

62. On 15 February 2014 the investigation was resumed following criticism by the supervisory authorities. The relevant decision stated that the suspension was premature and unlawful and that the investigators had failed to take a number of necessary steps; moreover, they had “failed to correct numerous shortcomings in the investigation.”

63. On various dates in March 2014 the investigators questioned the abducted men’s neighbours, Mr O.G., Mr M.M., Mr S.G. and Mr B. Kh., whose statements did not yield any new information.

64. On 15 April 2014 the investigation was suspended again.

65. On 23 April 2014 the investigation was again resumed following criticism by the supervisory authorities. The reasoning for the decision to order the resumption of the investigation decision stated that the suspension had been premature and unlawful and that the investigators had failed to re-qualify the crime from that of abduction under Article 126 of the Criminal Code to that of murder under Article 105 of the Criminal Code. (The investigators should have done this, given that the abducted men had been missing for more than two years.)

66. On 28 April 2014 the investigators questioned the abducted men’s acquaintance, Mr Z. Sh., whose statement did not yield any new information.

67. On 11 May 2014 the investigators complied with the supervisory authorities’ orders of 23 April 2014 and re-qualified the crime committed in respect of Sirazhudin Aliyev and Gazimagomed Abdullayev from that of abduction to that of murder.

68. On 12 May 2014 the investigators again questioned the second applicant, who confirmed her earlier statements (see paragraphs 24 and 27 above).

69. On 17 February 2014 the samples of blood and saliva obtained from Sirazhudin Aliyev and Gazimagomed Abdullayev’s relatives were examined (see paragraph 59 above).

70. On 24 May 2014 the investigation of the criminal case was suspended again. The applicants were informed of the suspension.

71. On 25 June 2014 the Leninskiy district prosecutor in Makhachkala examined the criminal case file and concluded that the suspension of the proceedings had been lawful.

72. As can be seen from the documents submitted the proceedings are still pending.

73. According to the applicants, the investigators failed to inform them of the course of the criminal proceedings in a timely manner.

II. RELEVANT DOMESTIC LAW

74. For a summary of the relevant domestic law (see Turluyeva v. Russia, no. 63638/09, §§ 56-64, 20 June 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

75. The applicants complained under Article 2 of the Convention that their relatives Sirazhudin Aliyev and Gazimagomed Abdullayev had been abducted and subsequently killed by State agents, that the domestic authorities had failed to take effective measures to protect their lives, and that the investigation into the abduction had been ineffective. Article 2 of the Convention reads as follows:

Article 2

“1. Everyone’s right to life shall be protected 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

76. The Government stated that the applicants’ allegations were based on suppositions and information from third persons and were therefore unsubstantiated. In particular, they pointed out that the fact that the abduction had been perpetrated during the daytime and in a public place did not prove that it could not have been perpetrated by anyone other than the State agents. The applicants themselves had not witnessed the events, and their allegations concerning the abducted men’s detention - firstly in the CTC’s premises in Makhachkala and then in the Stavropol region - were groundless. The eyewitnesses’ statements referred to by the applicants concerning the details of the incident, such as the colour of the abductors’ vehicles and of their uniform, had been inconsistent. The information obtained from the eyewitness Fatima (see paragraph 21 above) was unreliable.

77. The Government further stated that the complaint was premature as the investigation into the disappearance of the applicants’ relatives had not yet been completed. They further argued, in relation to the complaint under Article 13 of the Convention, that it had been open to the applicants to lodge a complaint before the domestic courts challenging the investigators’ acts or omissions. The applicants could have claimed civil damages or requested the courts to declare their relatives dead.

78. The applicants maintained that it was beyond reasonable doubt that State agents had taken away their relatives, Sirazhudin Aliyev and Gazimagomed Abdullayev, and subsequently killed them. In support of their complaint they referred to the following facts. The abduction had been perpetrated during the daytime and in the midst of a crowded city. The abductors had acted openly and without fear of being discovered, and had been armed and in police uniform. The abductors had fired one shot, used truncheons and handcuffed Sirazhudin Aliyev and Gazimagomed Abdullayev before taking them away; the handcuffs were of a type issued to law-enforcement agencies and not freely available for purchase. After receiving information about the abduction, the investigating authorities had not taken urgent steps to apprehend the culprits, as they must have been aware that State agents had perpetrated the crime. After the abduction, the applicants and their relatives had come under the scrutiny of the law-enforcement agencies, which indicated that the authorities had had reasons for the arrest of Sirazhudin Aliyev and Gazimagomed Abdullayev (see paragraphs 8, 27, 28 and 31 above).

79. The applicants further alleged that the investigation into the disappearance had proved to be ineffective. As for the possibility of lodging a complaint before the domestic courts challenging the investigators’ acts or omissions, the applicants stated that the effectiveness of the investigation should not have depended on their efforts to point out the investigation’s deficiencies; the authorities should have taken all measures possible of their own motion.

B. The Court’s assessment

1. Admissibility

80. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. In so far as the Government’s objection that the investigation is still pending appears to raise issues concerning the effectiveness of the investigation, the Court finds that they are closely linked to the substance of the complaints and should be joined to the merits of the case. It further notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Alleged violation of the substantive aspect of the right to life

(i) The State’s responsibility for a violation of the right to life

81. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012).

82. More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, concerning abductions in Dagestan, Umarovy v. Russia, no. 2546/08, 12 June 2012; Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013; and Abdurakhmanova and Abdulgamidova v. Russia, no. 41437/10, 22 September 2015). If the Government failed to rebut this presumption, that would entail a violation of Article 2 of the Convention in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

83. In view of the parties’ submissions concerning the circumstances of the abduction (see paragraphs 6-9 and 10 above), the Court concludes that the materials in its possession demonstrate the validity of the applicants’ allegation, for the following reasons. The abductors, who arrived in civilian vehicles, acted as an organised group and did not hesitate to open fire in a public place, in daylight and in the presence of witnesses. The abductors were in police uniform and had special equipment usually only used by the police, such as truncheons and handcuffs. Subsequently, in spite of the applicants’ urgent complaint that the abductors must have been State agents, the authorities took no steps to verify this information. On the contrary, within a few days of the abduction, the applicants and their relatives had been questioned and searched by the police (see paragraphs 24, 28 and 31 above) on suspicion of involvement in terrorist activities (see paragraphs 14, 31, 49 and 55 above). Further, the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as because of a blood feud, for a ransom, it was related to drugs trafficking, or simply due to hostility towards the abducted persons. No serious steps were taken to verify or discount such motives and no information was obtained indicating that the abductors could have been persons other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the procrastination on the part of the authorities in respect of the investigation into the matter, along with the applicants’ consistent allegations that law-enforcement officers had been involved in the incident (see, for example, paragraphs 12, 20, 21, 25, 26, 49 and 55 above), provide the Court with grounds for concluding that the applicants have made a prima facie case that their relatives Sirazhudin Aliyev and Gazimagomed Abdullayev were abducted by State agents. The Government’s statement that the investigators have found no evidence that members of law-enforcement authorities were involved in the disappearance is insufficient to discharge them of the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Sirazhudin Aliyev and Gazimagomed Abdullayev were apprehended on 21 January 2012 by State agents (see, in respect of a similar situation, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013, and Abdurakhmanova and Abdulgamidova, cited above, § 66).

84. There has been no reliable news of Sirazhudin Aliyev and Gazimagomed Abdullayev since their arrest. The Government have not submitted any explanation as to what happened to them afterwards.

85. The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of that detention and then remains missing for several years, that situation can be regarded as life-threatening. The absence of Sirazhudin Aliyev and Gazimagomed Abdullayev or of any news of them for over four years supports this assumption.

86. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Sirazhudin Aliyev and Gazimagomed Abdullayev must be presumed dead following their unacknowledged detention by State agents.

87. Considering that the Court has already found that Sirazhudin Aliyev and Gazimagomed Abdullayev must be presumed dead following their unacknowledged detention by State agents, in the absence of any justification put forward by the Government, the Court finds that their death can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention in respect of them.

(ii) Alleged failure to protect the right to life

88. The Court notes that the applicants’ complaint under Article 2 of the Convention also encompasses an allegation of failure to take measures to protect their two relatives against a known risk to their lives.

89. The Court finds that in the light of its above conclusions concerning the State’s responsibility for the death of Sirazhudin Aliyev and Gazimagomed Abdullayev (see paragraph 88 above), there is no need to examine this complaint separately.

(b) Alleged violation of the procedural aspect of the right to life

90. The applicants argued that the respondent State has also failed in its procedural obligation under Article 2 of the Convention as the investigation into the disappearance of Sirazhudin Aliyev and Gazimagomed Abdullayev was ineffective. The Government disputed this allegation. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

(i) General principles

91. The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation, which must be, inter alia, thorough, impartial and careful (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 161-63, Series A no. 324, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, §§ 169-82, 14 April 2015).

92. In order to be “effective” an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007-II). That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible. Nevertheless, the nature and degree of the scrutiny required to satisfy the minimum threshold of the investigation’s effectiveness will depend on the circumstances of the particular case. They must be assessed on the basis of all relevant facts and with regard to the practical realities of the investigation (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009).

93. The authorities must take whatever reasonable steps they can to secure evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 301, ECHR 2011). The investigation’s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent an investigation’s ability to establish the circumstances of the case in question and the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Tsechoyev v. Russia, no. 39358/05, § 153, 15 March 2011).

94. The authorities must act of their own motion once a matter has come to their attention; they cannot leave it to the initiative of the next of kin to lodge a formal complaint or take responsibility for the conduct of any investigatory procedures (see, for example, mutatis mutandis, İlhan v. Turkey [GC] no. 22277/93, § 63, ECHR 2000-VII). In this context, there must also be an implicit requirement of promptness and reasonable expedition (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports of Judgments and Decisions 1998-VI, and Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV). A prompt response by the authorities may generally be regarded as essential in maintaining public confidence in the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

95. An investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001-III).

96. The persons responsible for an investigation should be independent of anyone implicated or likely to be implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Anguelova v. Bulgaria, no. 38361/97, § 138, ECHR 2002-IV).

(ii) Application of the above principles to the present case

97. The Court observes that the applicants’ relatives complained of the abduction as soon as they had learned about it, that is on 21 January 2012 (see paragraph 12 above) and that from the very beginning they stressed that the perpetrators must have belonged to a law-enforcement agency. In response, on the same date the authorities obtained the evidence from four persons and examined the crime scene the following day (see paragraphs 13-17 above). However, they took no steps to verify the applicants’ allegation of the possible involvement of State agents. Several days later, after the first applicant had specified that the abductors had been in traffic police uniform and named eyewitnesses to the events, no steps were taken to verify this detailed allegation. The criminal case was opened only ten days after the applicants had made a complaint on 21 January 2012, in spite of the evidence obtained on the day of the incident (see paragraphs 13-17 above) and just a few days later (see paragraphs 20-21). There is no explanation for the belatedness of the reaction to such reliable information concerning such a serious crime. Thus, the authorities failed to demonstrate diligence and promptness in dealing with a serious matter (see Shafiyeva, cited above, § 90). Further, it would be reasonable to presume that the investigators could have questioned immediately, amongst other witnesses, officers from the traffic police and other law-enforcement agencies or enquired as to whether any special operations had been carried out by them. Such critical steps were not taken, neither at the very beginning of the proceedings nor later. In mid-February 2012 the first applicant pointed out that the abducted men had been detained on the CTC’s premises and then transferred to the Stavropol region (see paragraphs 26-27 above). In spite of the applicants’ and their relatives’ consistent allegations of the involvement of the law-enforcement officers in the abduction (see paragraphs 12, 21, 25, 26 and 27 above), the investigators obtained a statement from only one police officer, and that statement was obtained almost five months after the receipt of the applicants’ allegations of police involvement (see paragraphs 31 above). The investigators failed to take such crucial steps as checking the logbooks of the police detention facilities or those of the CTC in Makhachkala and Stavropol to verify the theory that State agents were involved in the disappearance of Sirazhudin Aliyev and Gazimagomed Abdullayev. It is noteworthy that the investigators tried to verify the first applicant’s allegation, made on 15 February 2012, concerning the involvement of traffic police (see paragraph 26 above), only one year and nine months later, in November 2013 (see paragraph 52 above).

98. Further, the Court notes the extensive criticism of the investigators by the supervisory authorities for their failure to take basic steps (see paragraphs 32, 34, 36, 42, 51, 54 and 65 above).

99. The Government argued that the applicants had been granted victim status in the criminal case and should therefore have sought judicial review of the decisions of the investigating authorities as part of the exhaustion of domestic remedies. The Court has previously accepted that this remedy may, in principle, offer a substantial safeguard against the arbitrary exercise of power by an investigating authority where it refuses to institute criminal proceedings or orders their termination, given a court’s power to reverse a refusal to institute criminal proceedings and indicate the defects to be addressed (see, among many other authorities, Trubnikov v. Russia (dec.), no. 9790/99, 14 October 2003; Dzhamaldayev v. Russia (dec.), no. 39768/06, § 28, 22 January 2013; and Borgdorf v. Russia (dec.), no. 20427/05, § 27, 22 October 2013). However, the Court has on many occasions found this remedy ineffective where the essence of the applicants’ complaints lay in challenges to the investigators’ inaction, resulting from the failure to take the necessary and timely steps and to keep the families informed of the progress and main procedural steps of the proceedings (see Shafiyeva, cited above, § 95, and Askhabova, cited above, § 159).

100. In the present case the applicants could have challenged the inaction of the investigative authorities and their failure to promptly take certain steps - for example in order to preserve the evidence. However, from the contents of the investigation file it is apparent that because of the delays in taking the necessary steps and the constant criticism by the supervisory authorities, the applicants learned of the omissions in the proceedings at a later date. In addition, there was no specific procedural act to challenge. In cases such as the one at hand the domestic courts are unable to issue specific guidelines to the investigating authorities, because of the absence of such a procedural act. Therefore, in the instant case, a challenge by the applicants before a court in respect of the investigators’ actions or omissions would have had a very little chance of redressing defects in the investigation given (i) the nature of the matter, (ii) the need to react promptly, and (iii) the limited scope of review of such a court. Accordingly, the Court finds that an application to the domestic courts in respect of complaints concerning alleged acts or omissions on the part of the investigating authorities would have been ineffective in such circumstances; it therefore dismisses the Government’s objection as regards the applicants’ failure to exhaust domestic remedies within the context of the criminal investigation.

101. On the basis of the above, the Court finds a procedural violation of Article 2 of the Convention in respect of the investigation carried out into the circumstances of the disappearance of Sirazhudin Aliyev and Gazimagomed Abdullayev.

II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

102. The applicants complained of a violation of Article 5 of the Convention on account of the unlawfulness of their relatives’ detention. Article 5 of the Convention reads, in so far as relevant:

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.”

103. The Government contested these arguments.

104. The Court notes that the complaint is linked to those examined above under Article 2 of the Convention and must therefore likewise be declared admissible.

105. The Court has found on several occasions that unacknowledged detention is a complete negation of the guarantees contained in Article 5 of the Convention and discloses a particularly grave violation of its provisions (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Turluyeva, cited above, § 117). The detention of the applicants’ relatives Sirazhudin Aliyev and Gazimagomed Abdullayev was likewise conducted “outside the normal legal system” and, “by its deliberate circumvention of due process, is anathema to the rule of law and the values protected by the Convention” (see, mutatis mutandis, Babar Ahmad and Others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, §§ 113-14, 6 July 2010, and El Masri, cited above, § 239).

106. The Court furthermore confirms that since it has been established that Sirazhudin Aliyev and Gazimagomed Abdullayev were 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.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

107. The applicant complained of a violation of Article 13 of the Convention in connection with Article 5, which reads:

“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.”

108. The Government contested that argument.

A. Admissibility

109. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

110. The Court notes that according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5 of the Convention, being a lex specialis in relation to Article 13, absorb its requirements and in view of its finding above of a violation of Article 5 of the Convention, the Court considers that no separate issue arises in respect of Article 13, read in conjunction with Article 5 of the Convention, in the circumstances of the present case (see, amongst many examples, Betayev and Betayeva v. Russia, no. 37315/03, § 130, 29 May 2008 and Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

111. 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

112. The applicants did not claim pecuniary damage. As for non-pecuniary damage, the applicants claimed 180,000 euros (EUR) jointly for “feelings of immense frustration, helplessness and injustice in the face of the indifference that the Russian authorities have demonstrated in their case”.

113. The Government submitted that the applicants were not entitled to claim non-pecuniary damage, as “the involvement of Russian State agents in the abduction of the applicants’ relatives has not been established by the domestic investigation”.

114. Having regard to the violations found, the Court awards the applicants EUR 120,000 jointly in respect of non-pecuniary damage.

B. Costs and expenses

115. The applicants were represented by lawyers from SRJI/Astreya. The aggregate claim in respect of costs and expenses related to their legal representation amounted to EUR 3,813. They submitted a breakdown of costs and supporting documents, including legal representation contracts, fee notes, translator’s invoices and a claim for administrative and postal costs. They requested that the payment be made directly to the representative’s bank account in the Netherlands.

116. The Government submitted that the expenses claimed were of a “speculative nature as they did not bear stamps or signatures confirming that the payments have been made” and invited the Court to reject them.

117. The Court has to establish firstly whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, secondly, whether they were necessary (see McCann and Others, cited above, § 220, and Fadeyeva v. Russia, no. 55723/00, § 147, ECHR 2005-IV). Bearing the above principles in mind and having regard to the parties’ submissions, the Court awards the applicants the amount of EUR 3,000, together with any tax that may be chargeable to them, the net award to be paid into the representative’s bank account, as identified by the applicants.

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it;

2. Declares the application admissible;

3. Holds that there has been a substantive violation of Article 2 of the Convention on account of the death of Sirazhudin Aliyev and Gazimagomed Abdullayev;

4. Holds that there is no need to examine separately the complaint concerning the positive obligation under Article 2 of the Convention;

5. Holds that there has been a procedural violation of Article 2 of the Convention on account of the failure to investigate effectively the disappearance of Sirazhudin Aliyev and Gazimagomed Abdullayev;

6. Holds that there has been a violation of Article 5 of the Convention on account of unlawful detention of Sirazhudin Aliyev and Gazimagomed Abdullayev;

7. Holds that no separate issue arises under Article 13 of the Convention taken in conjunction with Article 5 of the Convention;

8. 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 120,000 (one hundred and twenty thousand euros), to the applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

9. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 12 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Luis López Guerra
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ALIYEV AND GADZHIYEVA v. RUSSIA - 11059/12 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 640 (12 July 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/640.html Cite as: [2016] ECHR 640