Постановление Европейского суда по правам человека от 17.06.2010 «Дело Товсултанова (Tovsultanova) против России» [англ.]

ad failed to do so (see paragraph 60 above). The applicant contended that she had in fact applied to the domestic courts, but this remedy had been ineffective (see paragraph 58 above). Without deciding on the credibility of either version, the Court notes the effectiveness of the criminal investigation had already been undermined in its early stages by the authorities' failure to take the necessary and urgent investigative measures. Moreover, even assuming that the examination of the applicant's complaint by the district court would have led to the resumption of the investigation, this procedural measure would not have produced any tangible results for the applicant, taking into account that by then the investigation had been pending for almost three years. Further, it is clear that the investigation was repeatedly suspended and resumed, in spite of the fact that not all of the possible investigative measures had been taken to identify the perpetrators. In such circumstances, the Court considers that the applicant could not be required to challenge in court every single decision of the district prosecutor's office. Accordingly, the Court finds that the remedy cited 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.
97. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Said-Magamed Tovsultanov, in breach of Article 2 in its procedural aspect.

IV. Alleged violation of Article 3 of the Convention

98. The applicant relied on Article 3 of the Convention, submitting that as a result of her son's disappearance and the State's failure to investigate it properly, she had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. The parties' submissions

99. The Government disagreed with these allegations and argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.
100. The applicant maintained her submissions.

B. The Court's assessment

101. Referring to its settled case-law, the Court reiterates that, where a person has been abducted by State security forces and has subsequently disappeared, his or her relatives can claim to be victims of treatment contrary to Article 3 of the Convention on account of the mental distress caused by the "disappearance" of their family member and the authorities' reactions and attitudes to the situation when it is brought to their attention (see Kurt v. Turkey, 25 May 1998, §§ 130 - 34, Reports 1998-III, and {Timurtas} v. Turkey, No. 23531/94, §§ 96 - 98, ECHR 2000-VI).
102. Turning to the circumstances of the present case, the Court notes that the applicant is the mother of Said-Magamed Tovsultanov. Accordingly, it has no doubt that she has indeed suffered from serious emotional distress following the disappearance of her son.
103. The Court notes that it has already found violations of Article 3 of the Convention in respect of relatives of missing persons in a series of cases concerning the phenomenon of "disappearances" in the Chechen Republic (see, for example, Luluyev and Others, cited above, §§ 117 - 18, Khamila Isayeva v. Russia, No. 6846/02, §§ 143 - 45, 15 November 2007, and Kukayev v. Russia, No. 29361/02, §§ 107 - 10, 15 November 2007). It is noteworthy, however, that in those cases the State was found to be responsible for the disappearance of the applicants' relat

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