Постановление Европейского суда по правам человека от 08.01.2009 «Дело Шахгириева и другие (Shakhgiriyeva and others) против России» [англ.]

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 {Tanrikulu}, 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, {Tanli} 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 distric



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