CEDH · CASELAW;CLIN;ENG — 27 juillet 2006

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Russia - 69481/01 Judgment 27.7.2006 [Section I] Article 2 Article 2-1 Life Disappearance in Chechnya following Russian military commander’s instruction to shoot applicant’s son, and ineffectiveness of the ensuing investigation: violation   Article 3 Degrading treatment Inhuman treatment Anguish and distress resulting from the “disappearance” of the applicant’s son and the ineffectiveness of the ensuing investigation: violation   Article 5 Article 5-1 Lawful arrest or detention Unrecorded and unacknowledged detention in Chechnya: violation   Facts : The applicant, a Russian national in Ingushetia, complained on her own behalf and on behalf of her son, Mr   Yandiyev. In 1999 her son had gone to Grozny, Chechnya, and she had not heard from him since. In February 2000, she had seen him being interrogated by a Russian officer in a television news programme about the capturing of the village of Alkhan-Kala. She later obtained a full copy of the recording, made by a reporter for NTV (Russian Independent   TV) and CNN. At the end of the questioning the officer in charge gave instructions for the soldiers to “finish off” and “shoot” the applicant’s son. The CNN journalists who filmed the interrogation later identified the interrogating officer as Colonel-General Baranov, the commander of the troops which captured Alkhan-Kala. The applicant then began searching for her son, visiting detention centres and prisons and applying to various authorities. In August 2000 she was informed that her son was not being held in any prison in Russia. In November 2000 a military prosecutor issued a decision not to open a criminal investigation into the disappearance in question. A month later the same prosecutor stated that there were no reasons to conclude that military servicemen were responsible for the actions shown in the videotape. In July 2001 a criminal investigation was opened by the Chechnya Prosecutor’s Office into the abduction of the applicant’s son by unidentified persons. It later transpired that he had been placed on a missing persons list. In November 2003 the applicant’s complaints to the European Court was communicated to the Russian Government. Following the Court’s decision on admissibility, the Government submitted a copy of the criminal investigation file. The investigation had established that the applicant’s son had been detained on 2 February 2000 in Alkhan-Kala. Immediately after arrest he had been handed over to servicemen of the Ministry of Justice for transportation to a pre-trial detention centre. He had not however arrived at any pre-trial detention centre and his subsequent whereabouts could not be established. Colonel-General Baranov had been questioned twice about the events, and had denied giving an order to “shoot” Mr   Yandiyev, but that he had intended to stop his aggressive behaviour and to prevent possible disturbances. The servicemen surrounding him had not been his subordinates and thus could not have taken orders from him. Between July 2001 and February 2006 the investigation was adjourned and reopened six times. The majority of documents in the case file were dated after December 2003. At different stages of the proceedings several orders were issued by the supervising prosecutors, setting out the steps to be taken by the investigators. In particular, in December 2003 one prosecutor, noting that no real investigation had taken place, ordered that action be taken to identify the detachments of federal forces that could have been involved in the special operation in Alkhan-Kala in early February 2000 and to establish what had happened to the detained persons. Article   2 – The presumed death of Mr   Yandiyev :The Court recalled that detained persons were in a vulnerable position and that the authorities were under a duty to protect them. The obligation on the authorities to account for the treatment of a detained individual was particularly stringent where that individual died or disappeared after being taken into police custody. It was undisputed that Mr   Yandiyev had been detained during a counter-terrorist operation in the village of Alkhan-Kala on 2 February 2000. The Court took into account the videotape and numerous witness statements contained in the criminal investigation file confirming that he had been interrogated by a senior military officer who, at the end of the interrogation, said that he should be executed. The Court finally noted that there had been no reliable news of the applicant’s son since that date. In the absence of any plausible explanation by the Government, and taking into account that no information had come to light concerning his whereabouts for more than six years, Mr   Yandiyev had to be presumed dead following his unacknowledged detention. As there had been no attempt to justify the use of lethal force in the instant case, liability was attributable to the Russian Government. Conclusion : violation (unanimously). The inadequacy of the investigation : The Court noted that the investigation had been opened a year and five months after the events at issue and had been plagued by inexplicable delays. Furthermore, it appeared to the Court that most of the actions necessary for solving the crime had occurred only after December 2003, when the applicant’s complaint had been communicated to the Russian Government. Those delays alone had compromised the effectiveness of the investigation and could not but have had a negative impact on the prospects of arriving at the truth. The Court also noted a number of serious omissions including, in particular, the failure to identify or question some of the servicemen in charge of the detainees. Many of the omissions had been evident to the prosecutors, who had ordered certain steps to be taken. However, their instructions had either not been followed or had been followed with an unacceptable delay. In the light of those circumstances, the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance and presumed death of Mr   Yandiyev. Conclusion : violation (unanimously). Article   3 – Concerning the applicant’s complaint regarding the suffering inflicted upon her in relation to her son’s disappearance, the Court noted that the applicant was Mr   Yandiyev’s mother, and had seen her son, on video, being questioned and led off by soldiers following remarks inferring that he would be executed. Furthermore, despite her requests, the applicant had never received any plausible explanation or information as to what became of her son following his detention. Those facts had caused her to suffer distress and anguish and the manner in which her complaints had been dealt with by the authorities could be construed as amounting to inhuman treatment. Conclusion : violation (unanimously). Article   5 – Although it had been established that the applicant’s son had been detained on 2 February 2000 by the federal authorities, his detention had not been logged in the relevant custody records and there existed no official trace of his subsequent whereabouts or fate. That fact in itself was incompatible with the very purpose of Article   5 and enabled those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the authorities should have been alert to the need to investigate more thoroughly and promptly the applicant’s complaints that her son was detained by the security forces and taken away in life-threatening circumstances. Instead they had failed to take prompt and effective measures to safeguard Mr   Yandiyev against the risk of disappearance. Moreover, as late as in December 2000 the authorities had continued to deny the involvement of federal servicemen in Mr   Yandiyev’s apprehension. Accordingly, Mr   Yandiyev had been held in unacknowledged detention in the complete absence of the safeguards contained in Article   5. Conclusion : violation (unanimously). Article   13 – In view of its findings with regard to Articles 2 and 3, the Court found that the applicant should have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. However, as the criminal investigation had been ineffective the State had failed in its obligation under Article   13. Conclusion : violation of Article   13 in connection with Articles 2 and 3 (unanimously). Article   41 – EUR 35,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes