C.  Alleged inadequacy of the investigation into the abduction of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev

163.  The applicants argued that the investigation had not been effective and adequate, as required by the Court's case-law on Article 2. They noted that it had been adjourned and reopened a number of times and that the taking of the most basic steps had thus been protracted, and that the applicants had not been informed properly of the most important investigative steps. They argued that the fact that the investigation had been pending for such a long period of time without producing any known results had been further proof of its ineffectiveness. The applicants invited the Court to draw conclusions from the Government's unjustified failure to submit the documents from the case file to them or to the Court.

164.  The Government claimed that the investigation into the disappearance of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators. They argued that the decisions to adjourn and to reopen the investigation signified that the authorities had continued to take steps in order to resolve the crime. They also noted that the investigation had been opened on the same day as the kidnapping, and that on that day a large number of witnesses had been questioned, that the prosecutor's office had forwarded numerous information requests to various bodies, trying to check the applicants' version of the events. The absence of results could not be treated as a breach of the positive obligations under Article 2, which entailed an obligation to use particular means.

165.  The Court has developed a number of guiding principles to be followed for an investigation to comply with the Convention's requirements (for a summary of these principles see Bazorkina, cited above, §§ 117-119).

166.  In the present case, an investigation of the abduction was carried out. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

167.  The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress produced by the Government.

168.  Turning to the facts of the case, the Court notes that the authorities were immediately aware of the crime through the applicants' submissions. The investigation was opened on 23 October 2002. It also appears that on that day and within the following days some applicants, members of the detained men's families and their neighbours were questioned and the scene of the crime inspected. On 25 October 2002 the local military commander's office informed the investigation that none of its servicemen had been involved in the special operation in question. Following the discovery and identification of the five bodies on 8 November 2002, a new investigation was opened. Within the following days the site of the crime was examined, two witnesses were questioned and forensic and ballistic expert examinations were carried out. Members of the kidnapped men's families were granted victim status between October and December 2002. However, it appears that after that a number of crucial steps were delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all.

169.  In particular, the Court notes that, as appears from the documents and information provided by the Government, many eyewitnesses and other victims of the events were questioned in 2006 (see paragraphs 96, 99 and 100 above).

170.  A number of essential steps were never taken. First, it does not appear that the investigation attempted to find out whether any special operations had been carried out in Chechen-Aul on the night in question, or identified and questioned any of the servicemen who had carried it out and were involved in the detention of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev, or their fellow detainees.

171.  Further, it does not appear that the investigation fully established the circumstances of the applicants' relatives' deaths. Even though a forensic examination of the bodies was carried out, it does not appear that it established the timing of the deaths or that it addressed any injuries except for firearm wounds, as described by the relatives and a medical doctor in Chechen-Aul (see paragraphs 46 and 47 above). There has been no explanation for the difference in the results communicated by the Government, according to which the deaths of all the victims had been caused by firearm wounds, and the medical report issued by the Chechen-Aul medical service to the effect that that the death of Ali Magomadov had resulted from strangulation and numerous blows (see paragraph 48 above). The Court also notes that the death certificates issued by the local registration office indicated 23 October and 9 November 2002 as the dates of the deaths (see paragraphs 49, 51, 55 and 58 above).

172.  The Court also notes that even though some of the applicants and other relatives of the disappeared men were granted victim status, they were only informed of the adjournment and reopening of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

173.  Lastly, the Court notes that the investigation was adjourned and resumed a number of times and that there were long periods of inactivity during the years when it was pending.

174.  The Government raised the possibility for the applicants to make use of judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies. The Court observes that the applicants, having no access to the case file and not being properly informed of the progress of the investigation, could not have effectively challenged actions or omissions of investigating authorities before a court. Furthermore, the investigation was resumed by the prosecuting authorities themselves a number of times owing to the need to take additional investigative steps. However, they still failed to investigate the applicants' allegations properly. Moreover, owing to the time that had elapsed since the events complained of, certain investigative measures that ought to have been carried out much earlier could no longer usefully be conducted. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicant's failure to exhaust domestic remedies within the context of the criminal investigation.

175.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the deaths of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev, in breach of Article 2.

176.  The applicants further alleged a violation of the positive obligation under Article 2 to investigate the deaths of Aslan Israilov and Khasin Yunusov. The Government disputed this allegation.

177.  The Court first notes that the authorities were aware of the applicants' two relatives' disappearance at the latest by 11 November 2002 (see paragraph 106 above). Nevertheless, the investigation into the murder was not opened until 15 December 2002. This delay in itself was liable to affect the investigation of such a serious crime, where crucial action had to be taken within the first days after the reported disappearance.

178.  From the documents submitted by the Court it does not appear that since the finding and the identification of the bodies in April 2003 any progress whatsoever has been made in the investigation of the murders. It does not appear, for example, that the timing of the deaths has been established, or that the investigation has taken any steps at all in order to check the applicants' version, however vague, that Aslan Israilov and Khasin Yunusov could have been arrested by servicemen in Grozny or that in November 2002 they could have been detained at the military base in Khankala. It is true that the obligation to carry out an effective investigation is not an obligation of result, but of means. However, any deficiency in the investigation which undermines its ability to establish the cause of death of the person will risk falling below this standard (see Tanrıkulu, cited above, § 109).

179.  Furthermore, the Court notes that the applicants were not fully informed about the progress of the investigation, except for occasional communication to them of the decisions to reopen and adjourn it. In such circumstances, and for reasons similar to those listed in paragraph 174 above, the Court finds that the Government's preliminary objection about the failure to exhaust domestic remedies in the context of the criminal investigation should be dismissed.

180.  In view of the above, and drawing inferences from the Government's failure to disclose most of the documents from the criminal investigation file, the Court finds that there has been a violation of the obligation to carry out an effective investigation into the deaths of Aslan Israilov and Khasin Yunusov.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

181.  The applicants further relied on Article 3 of the Convention, submitting that as a result of their relatives' abduction and murder and the State's failure to investigate those events properly, they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

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

182.  The Government disagreed with these allegations and argued that in the absence of any evidence suggesting that the applicant's relatives had been abducted and murdered by representatives of the State, there were no grounds for alleging a violation of Article 3 of the Convention on account of the applicant's mental suffering.

183.  The Court notes that while a family member of a “disappeared person” can claim to be a victim of treatment contrary to Article 3 in view of the suffering endured as a result of uncertainty about the fate of their relatives and the authorities' inadequate reaction (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports of Judgments and Decisions 1998-III, and Bazorkina, cited above, §§ 139-41), the same principle would not usually apply to cases where the person taken into custody has later been found dead (see, for example, Tanlı v. Turkey, no. 26129/95, § 159, ECHR 2001-III). In such cases the Court would limit its findings to Article 2. However, if a period of initial disappearance is long it may in certain circumstances give rise to a separate issue under Article 3 (see Gongadze v. Ukraine, no. 34056/02, §§ 184-86, ECHR 2005-XI, and Luluyev and Others, cited above, §§ 114-15).

184.  In the present case, in so far as the complaint was brought by the relatives of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev, the news of the applicants' relatives' deaths was preceded by a period of about ten days during which they were deemed to have disappeared. They immediately notified the authorities of the kidnappings, and on 23 October 2002, i.e. on the day following the events, the district prosecutor's office commenced a criminal investigation. While not doubting that the situation caused the applicants profound distress and anxiety, the Court does not find, in the circumstances of the present case, that a separate issue arises under Article 3 as distinct from its above conclusions concerning the double violation of Article 2.

185.  In so far as the sixth and seventh applicants complained about the disappearance and deaths of Aslan Israilov and Khasin Yunusov, the Court notes that it has been unable to reach the conclusion suggested by the applicants that their two relatives were abducted and killed by State agents. In view of this, and having already found a violation of the obligation to investigate effectively under Article 2 of the Convention, the Court does not find that additional questions arise under Article 3 in the present case.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

186.  The applicant further stated that Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev, Aslan Israilov and Khasin Yunusov had been detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:

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

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

...

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.”

187.  The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev and Others, cited above, § 122).

188.  The Court has found it established that Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev were detained by State servicemen on 23 October 2002 and then unlawfully deprived of their lives. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate.

189.  Consequently, the Court finds that Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

190.  In so far as the complaint concerns Aslan Israilov and Khasin Yunusov, the Court observes that it has not found it established to the requisite standard of proof that the two men were detained by representatives of the State. Therefore, no violation of Article 5 can be found in respect of them.

VI.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

191.  The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

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

192.  The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This was an effective remedy to ensure the observation of their rights. They had also not claimed damages in civil proceedings.

193.  The Court reiterates that in circumstances where, as here, the criminal investigation into the violent deaths was ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).

194.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

VII  APPLICATION OF ARTICLE 41 OF THE CONVENTION

195.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Pecuniary damage

196.  The applicants claimed damages in respect of the lost wages of their relatives following their arrests and subsequent deaths. They claimed that their relatives had been unemployed at the time of their arrest, or that they were unable to obtain salary statements for them, and that in such cases the calculation should be made on the basis of the subsistence level established by national law. They calculated their earnings for the period, taking into account an average 10% inflation rate. Their calculations were also based on the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary's Department in 2004 (“Ogden tables”).

197.  The second applicant claimed a total of 429,354 Russian roubles (RUB) under this heading (12,084 euros (EUR)). She claimed that she could have counted on 20% of her husband's earnings for herself and 10% for each of their four children until they reached the age of majority.

198.  The third applicant, who retired in 1977, submitted that she could have counted on 10% of her son's earnings. She claimed a total of RUB 51,590 (EUR 1,448).

199.  The fourth applicant, who is the sister of Ismail Umarov, submitted that she was taking care of his three minor children and that she could have counted on 10% of his earnings for each of the children until they reached the age of majority. She claimed a total of RUB 234,510 (EUR 6,583).

200.  The fifth applicant, the widow of Umalat Abayev, claimed a total of RUB 679,497 (EUR 19,074). She submitted that she could have counted on 30% of her husband's earnings for herself and on 20% for their daughter until the age of 18.

201.  The sixth applicant, who is the widow of Aslan Israilov, claimed RUB 461,479 (EUR 12,954) and the seventh applicant, who is the sister of Khasin Yunusov, claimed RUB 216,937 (EUR 6,090) in respect of pecuniary damage.

202.  The Government regarded these claims as based on suppositions and unfounded. In particular, they noted that in the national proceedings the applicants had never claimed compensation for the loss of a breadwinner, although such a possibility was provided for. As to the relatives of Khasin Yunosov, who had been a police officer, his family had received compensation arising out of his compulsory State personal insurance, because his death had been found to have been connected to his professional duties. His mother, in respect of whom the claim had been brought by the seventh applicant, had also received a monthly pension for the loss of a breadwinner as of 1 May 2003.

203.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, in appropriate cases, include compensation in respect of loss of earnings. Furthermore, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents, “failing which the Chamber may reject the claim in whole or in part”. The Court further finds that the loss of earnings also applies to dependent children (see, among other authorities, Imakayeva, cited above, § 213). Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of the second, third and fifth applicants' family members and the loss by these applicants of the financial support which they could have provided.

204.  As to the claim brought by the fourth applicant, the Court notes that she submitted no documents or any other evidence to support her claim that she took care of her late brother's three minor children. In such circumstances, the Court finds that there is no reason to award her compensation for pecuniary damage.

205.  As to the claims brought by the sixth and the seventh applicants, the Court observes that it has been unable to establish the State's responsibility for the deaths of the applicants' relatives. It therefore does not discern a causal link between the violations found and the damage claimed.

206.  Having regard to the above and to the second, third and fifth applicants' submissions, and accepting that it would be reasonable to assume that their relatives would have eventually had some earnings resulting in the financial support of their families, the Court awards the following sums in respect of pecuniary damage, plus any tax that may be chargeable on these amounts:

(i) EUR 12,000 to the second applicant;

(ii) EUR 1,400 to the third applicant; and

(iii) EUR 10,000 to the fifth applicant.

B.  Non-pecuniary damage

207.  The applicants claimed financial compensation in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family members and the indifference shown by the authorities towards them. They sought the following amounts:

(i)  EUR 80,000 for the first applicant;

(ii) EUR 40,000 for the second applicant;

(iii) EUR 40,000 for the third applicant;

(iv) EUR 80,000 for the fourth applicant;

(v) EUR 60,000 for the fifth applicant;

(vi) EUR 60,000 for the sixth applicant;

(vii) EUR 80,000 for the seventh applicant.

208.  The Government found these amounts exaggerated.

209.  The Court has found a violation of Articles 2, 3, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the first, second, third, fourth and fifth applicants' relatives. It has also found a procedural violation of Article 2 and of Article 13 on account of the ineffectiveness of the investigation into the deaths of the sixth and seventh applicants' relatives. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards the following amounts to the applicants, plus any tax that may be chargeable on them:

(i) EUR 35,000 to the first applicant;

(ii) EUR 35,000 to the second and third applicants jointly;

(iii) EUR 35,000 to the fourth applicant;

(iv) EUR 35,000 to the fifth applicant;

(v) EUR 10,000 to the sixth applicant; and

(vi) EUR 10,000 to the seventh applicant.

C.  Costs and expenses

210.  The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour for the work in the area of exhausting domestic remedies and of EUR 150 per hour for the drafting of submissions to the Court. The aggregate claim in respect of costs and expenses related to the applicants' legal representation amounted to EUR 8,957.

211.  The Government disputed the reasonableness and the justification of the amounts claimed under this heading. They questioned, in particular, whether all the lawyers working for the SRJI had been involved in the present case and whether it had been necessary for the applicants to rely on courier mail.

212.  The Court has to establish first whether the costs and expenses indicated by the applicants' representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

213.  Having regard to the details of the information submitted and the contracts for legal representation concluded between the SRJI and the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants' representatives. The Court notes that this case was rather complex and required the amount of research and preparation claimed by the applicants.

214.  Having regard to the details of the claims submitted by the applicants, the Court awards them the amount of EUR 8,957, less EUR 850 received by way of legal aid from the Council of Europe, together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives' bank account in the Netherlands, as identified by the applicants.

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

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Dismisses the Government's preliminary objection;

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Russian roubles at the rate applicable at the date of settlement, save in the case of the sixth applicant and the payment in respect of costs and expenses:

(i)  EUR 12,000 (twelve thousand euros) to the second applicant in respect of pecuniary damage;

(ii) EUR 1,400 (one thousand four hundred euros) to the third applicant in respect of pecuniary damage;

(iii) EUR 10,000 (ten thousand euros) to the fifth applicant in respect of pecuniary damage;

(iv) EUR 35,000 (thirty-five thousand euros) to the first, fourth and fifth applicants each in respect of non-pecuniary damage;

(v) EUR 35,000 (thirty-five thousand euros) to the second and third applicants jointly in respect of non-pecuniary damage;

(vi) EUR 10,000 (ten thousand euros) to the sixth and seventh applicants each in respect of non-pecuniary damage;

(vii)  EUR 8,107 (eight thousand one hundred and seven euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives' bank account in the Netherlands;

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

Done in English, and notified in writing on 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.