CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 juillet 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   502 12.7.2007   Press release issued by the Registrar   CHAMBER JUDGMENT MAGOMADOV AND MAGOMADOV v. RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Magomadov and Magomadov v. Russia (application no. 68004/01).   The Court held unanimously that there had been: a violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the disappearance of Ayubkhan Magomadov; a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances of the disappearance of Ayubkhan Magomadov; no violation of Article 3 (prohibition of inhuman and degrading treatment) in respect of Ayubkhan Magomadov; a violation of Article 3 in respect of Yakub and Ayub Magomadov; a violation of Article 5 (right to liberty and security) in respect of Ayubkhan Magomadov; no violation of Article 34 (right of individual petition).   Under Article 41 (just satisfaction) of the Convention, the Court awarded Ayub Adamovich Magomadov 40,000 euros (EUR) in respect of non-pecuniary damage and a total of EUR   6,125 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicants, Yakub Adamovich Magomadov, and his brother, Ayub Adamovich Magomadov, both Russian nationals, were born in 1967 and 1965 respectively and lived in Chechnya.   The case concerns the detention and disappearance of their brother, Ayubkhan, in October 2000. The second applicant also alleged that in April 2004 his brother, Yakub, disappeared in suspicious circumstances.       The applicants lived with their family in the village of Kurchaloy in Chechnya. Their brother, Ayubkhan Magomadov, who was born in 1969, lived in the same house.   According to their version of events, on 2 October 2000 their house and their neighbours' house was searched by an armed unit of the Federal Security Service (FSB). No documents authorising the search were presented. Ayubkhan Magomadov was arrested by men in military uniforms. They drove him away and he has not been seen since.   Immediately after this arrest the family started to look for him. They applied to various law-enforcement authorities in Chechnya and in Moscow, asking for information about him.   On 12 October 2000 the head of the criminal police of the Oktyabrskiy Temporary Department of the Interior (VOVD) in Grozny issued a certificate stating that on 2   October 2000 Ayubkhan Magomadov had been detained in Kurchaloy on suspicion of having committed a serious crime. Mr Magomadov had been released on 3 October 2000 at 8.30 a.m., after the end of the curfew.   Several other law-enforcement agencies submitted contradictory information about the circumstances and reasons of Ayubkhan Magomadov’s detention. They agreed, however, that he had been brought to the Oktyabrskiy VOVD on 2 October 2000, released in the morning on 3 October 2000 and that no records pertaining to his detention or release were available.   On 9 December 2000 the Argun Inter-District Prosecutor's Office opened a criminal investigation into the applicants’ brother's kidnapping. It was adjourned and reopened on several occasions, but failed to identify the culprits or to establish the whereabouts of Ayubkhan Magomadov.   On 31 May 2004 the applicants' representatives informed the Court that the first applicant had “disappeared”. They claimed that in April 2004 he had been in Moscow. He had last contacted his relatives on 19 April 2004.   Despite different initiatives on the part of the Russian Human Rights Commissioner and the Court itself, his whereabouts have still not been established.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 23 March 2001 and declared admissible on 24 November 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Loukis Loucaides (Cypriot), Nina Vajić (Croatian), Anatoli Kovler (Russian), Khanlar Hajiyev (Azerbaijani), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 2, the applicants alleged that their brother, Ayubkhan, had been unlawfully killed by agents of the State. They also submitted that the authorities had failed to carry out an effective and adequate investigation into the circumstances of his disappearance.   They also complained that there were strong reasons to believe that their brother had been subjected to treatment in violation of Article 3, and that the suffering to which they had been subjected as a result of their brother’s disappearance constituted treatment prohibited by this article.   Under Article 5, the applicants submitted that Ayubkhan Magomadov had been subjected to unacknowledged detention.   Lastly, Ayub Magomadov maintained that the “disappearance” of his brother, Yakub, in 2004 was connected with his application to the Court and therefore constituted a violation of Article   34.   Decision of the Court   Decision   Article 2 of the Convention   A.     The alleged failure to protect the right to life of Ayubkhan Magomadov   The Court noted with great concern that a number of cases had come before it which suggested that the phenomenon of “disappearances” was well known in Chechnya. Information attesting to other similar cases of disappearances after unacknowledged detention was contained in the investigation file submitted by the Government and in the information submitted by the applicants.   The Court agreed with the applicants that, in the context of the conflict in Chechnya, when a person was detained by unidentified servicemen without any subsequent acknowledgment of the detention, this could be regarded as life-threatening. The absence of Ayubkhan Magomadov or of any news from him for over six years supported this assumption. Moreover, the stance of the prosecutor's office and the other law-enforcement authorities after the news of his detention had been communicated to them by the applicants significantly contributed to the likelihood of his disappearance, as none of the necessary steps had been taken in the crucial first days or weeks after his detention. The authorities' behaviour in the face of the applicants' well-substantiated complaints gave rise to a strong presumption of at least acquiescence in the situation and raised strong doubts as to the objectivity of the investigation.   It had been established beyond reasonable doubt that Ayubkhan Magomadov must be presumed dead following his unacknowledged detention by State servicemen. Consequently, the responsibility of the respondent State was engaged. Noting that the authorities had not relied on any exceptions to the right to life listed in Article 2 §   2 of the Convention, the Court held that liability for his presumed death was attributable to the respondent Government and that there had accordingly been a violation of Article 2 on that account in respect of Ayubkhan Magomadov.   B.     The alleged inadequacy of the investigation into Ayubkhan Magomadov's abduction   The Court noted that an investigation had been carried out into the kidnapping of the applicants' brother.   The authorities had been made immediately aware of Ayubkhan Magomadov's arrest because members of his family, including the applicants, had complained to the prosecutors' offices and other authorities in the days following the arrest. They had also personally visited the Oktyabrskiy VOVD. However, the criminal investigation had not been opened until more than two months after the event. Once the investigation started, it had been plagued by significant further delays. Such delays in themselves compromised the effectiveness of the investigation and could not but have had a negative impact on the prospects of arriving at the truth. While accepting that some explanation for these delays could be found in the exceptional circumstances that prevailed in Chechnya at the relevant time, the Court found that in the present case they had clearly exceeded what was acceptable in dealing with such a serious crime.   Having regard to other elements of the investigation, notably the failure to resolve inconsistencies in the different versions of events provided by the various authorities concerned and the lack of effective coordination between the different bodies, the Court found that the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance and presumed death of Ayubkhan Magomadov. There had therefore been a violation of Article 2 in this respect also.   Article 3 of the Convention   The Court did not discern any indication in the material before it to support the applicants' allegation that the brother had been the victim of ill-treatment. It accordingly could not conclude that there had been a violation of Article   3 of the Convention on this account.   As regards the applicants, the Court noted that they had suffered, and continued to suffer, distress and anguish as a result of the disappearance of their brother and their inability to find out what had happened to him. The manner in which their complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment contrary to Article 3.   There had therefore been a violation of Article 3 of the Convention in respect of the applicants.   Article 5 of the Convention   It had been established that the applicants' brother had been detained on 2   October 2000 by military personnel and has not been seen since. No charges had ever been brought against him, although, as appeared from some documents, the reason for his detention and questioning had been his suspected involvement in certain criminal activities. His detention had not been logged in the custody records and there existed no official trace of his subsequent whereabouts or fate. In accordance with the Court's practice, the failure to keep proper records in itself had to be considered a most serious failing, since it 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 absence of detention records, noting such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it, had to be seen as incompatible with the very purpose of Article 5 of the Convention.     Moreover, the Court's reasoning and findings in relation to Article 2, in particular as regards the investigation, left no doubt that the authorities had failed to take prompt and effective measures to protect Ayubkhan Magomadov against the risk of disappearance.   Accordingly, the Court found that Ayubkhan Magomadov had been held in unacknowledged detention in complete absence of the safeguards contained in Article 5 and that there had therefore been a violation of that provision.   Article 34 of the Convention   The Court considered that it did not have sufficient material before it to conclude that the first applicant's alleged disappearance had been connected with his application, that he had been arrested by the representatives of the State at all or that the respondent Government had otherwise violated their obligations under Article 34 not to hinder the right of individual petition.       ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.