CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 26 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 } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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   531 26.7.2007   Press release issued by the Registrar   CHAMBER JUDGMENT MUSAYEVA AND OTHERS v. RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Musayeva and Others v. Russia (application no. 74239/01).   The Court held unanimously that there had been: a violation of Article   2 (right to life) of the European Convention on Human Rights as regards the killing of the applicants’ relatives, Ali and Umar Musayev; a violation of Article   2 of the Convention on account of the authorities’ failure to carry out an adequate and effective investigation into the circumstances surrounding the killing of Ali and Umar Musayev; a violation of Article   3 (prohibition of inhuman or degrading treatment) of the Convention on account of the treatment suffered by Umar Musayev; no violation of Article   3 in respect of Ali Musayev; a violation of Article   5 (right to liberty and security) in respect of Ali and Umar Musayev; a violation of Article   13 (right to an effective remedy) in respect of the alleged violations of Article 2 and the alleged violation of Article 3 in respect of Umar Musayev; and, a failure to comply with Article 38 § 1 (a) in that the Russian Government refused to submit the documents requested by the Court.   Under Article 41 (just satisfaction) Convention, the Court awarded the applicants jointly 130,000   euros   (EUR) for non-pecuniary damage and EUR   285 for costs and expenses.   (The judgment is available only in English.)   1.     Principal facts   The applicants, Aminat Dautovna Musayeva, Alamat Reshetovich Musayev and Elza Uvaysovna Zurapova, are Russian nationals who were born in 1954, 1946 and 1977 respectively and live in Gekhi (Chechnya).   Aminat Dautovna Musayeva and Alamat Reshetovich Musayev are a married couple. They had four children, two of whom – Ali Musayev, born in 1972, and Umar Musayev, born in 1977 – lived together with their parents in a household comprising two houses in Gekhi. Elza Uvaysovna Zurapova was married to Ali Musayev.   The case concerns the events of 8 August 2000 when, following the blowing up of a Russian armoured personnel carrier (APC) in the vicinity of Gekhi, a military operation was carried out in the village in the course of which Ali Musayev and Umar Musayev were taken away and placed in detention.   For two days after those events federal troops sealed off the village of Gekhi. When the restrictions were lifted, Aminat Dautovna Musayeva went to Urus-Martan and notified the head of the district administration of her sons’ detention.   She then went to the district military commander’s office where she noticed her elder son’s car, in which he had been taken away, in the courtyard. When she enquired about her sons and the car, the military commander told her that he had no information concerning Ali and Umar Musayev and advised her to come back in two days.   On 11 or 12 August Mrs Musayeva went to the military commander’s office again. She was again told that he had no information about the whereabouts of her sons.   Despite repeated enquiries to different authorities at various levels, Mrs Musyeva was unable to obtain any information about what had happened to her sons.   On 13 September the brothers’ father exhumed four bodies from a grave near the Gekhi cemetery in the presence of a police officer and officials from the local administration. All four corpses showed signs of having met a violent death. He identified two of the bodies as being his sons.   Criminal proceedings were instituted in connection with the deaths of the two Musayev brothers. The proceedings were however suspended on several occasions on the basis that it was impossible to identify the alleged perpetrators. In August 2002 their mother was granted the status of victim of a crime and civil claimant, but shortly afterwards the investigation into the death of the Musayev brothers was again suspended and the proceedings remained adjourned until October 2004, when, after the family’s application to the European Court of Human Rights had been communicated to the Russian Government, the brothers’ mother was informed that the proceedings had been resumed. There followed further suspensions and resumptions of the proceedings.   In the meantime Aminat Dautovna Musayeva and Alamat Reshetovich Musayev had issued separate sets of civil proceedings against the Ministry of Finance in the Basmanny District Court of Moscow, seeking compensation in connection with the unlawful detention of their sons. However, the court concluded that the applicants’ claims had no basis in domestic law and dismissed them. An appeal to the Moscow City Court was rejected.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 20 September 2001. On 29 August 2004 the Chamber to which the application had been allocated, decided to grant priority to the application under Rule 41 of the Rules of Court. By a decision of 1   June 2006, the Court declared the application partly admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Nina Vajić (Croatian), Anatoli Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained, in particular, of the torture and death of their relatives following their unlawful detention, of the absence of adequate investigation into these events, and the lack of effective remedies in respect of those violations. They relied on Articles 2, 3, 5 and 13 of the Convention.   Decision of the Court   Article 2   Killing of the applicants' relatives It was common ground between the parties that on 8 August 2000 Ali and Umar Musayev had been apprehended by federal servicemen in the course of a special operation and delivered to the temporary headquarters of the federal forces near the village of Gekhi. On the facts of the case, it was clear that they had been taken into custody in apparent good health and their bodies had been found later showing signs of having met a violent death. The Court considered it established that the two brothers had died while detained by the federal forces. Given the absence of any plausible explanation the Government had failed to account for their deaths during their detention and the Russian State’s responsibility for these deaths was therefore engaged. There had accordingly been a violation of Article 2.   Investigation into the killings As to the effectiveness of the investigation carried out into the killing of the Musayev brothers, the Court first noted that despite the family’s numerous complaints and enquiries, the authorities had made no attempt to investigate the circumstances of the detention and disappearance of Ali and Umar Musayev during the period when they remained missing. Moreover, although the authorities had been made instantly aware of the brothers’ deaths, the official investigation had not commenced until more than two months after the detention of the applicants’ relatives and more than a month after the discovery of their remains.   Once the investigation had been opened it had been plagued with inexplicable shortcomings in taking the most essential steps. In particular, no forensic examination or autopsy of the bodies was ever carried out. The investigation could only be described as dysfunctional when it came to establishing the extent of the military and security personnel’s involvement in the deaths of the applicants’ relatives. It did not appear that any meaningful efforts had been undertaken to investigate the possible involvement of such personnel in the murder.   Furthermore, there had been a substantial delay in granting the status of victim to Mrs Musayeva. Finally, the investigation remained pending from October 2000 to August 2002, when it had been suspended for over two years and not resumed until October 2004. After that it remained pending at least until August 2006. Between October 2000 and August 2006 the investigation was adjourned and reopened at least seven times. The prosecutors on several occasions ordered certain steps to be taken, but there was no evidence that those instructions had ever been complied with.   In the light of those defects and with regard to the inferences drawn from the Government’s submission of evidence, the Court concluded that the authorities had failed to carry out a thorough and effective investigation into the circumstances surrounding the deaths of Ali and Umar Musayev. There had therefore been a further violation of Article 2.   Article 3   As regards Umar Musayev the Court noted that his medical death certificate had confirmed the presence of various injuries on his body. The Government had provided no plausible explanation as to the origin of those injuries, which had therefore to be considered attributable to a form of ill-treatment for which the authorities were responsible.   Having regard to the document submitted by the applicants, which certified the presence of multiple injuries and stab wounds on Umar Musayev’s body, the Court found that the treatment inflicted on him involved very serious and cruel suffering that could be characterised as torture within the meaning of Article 3. Accordingly, there had been a breach of Article 3.   In the case of Ali Musayev, the applicants had not submitted any documentary evidence confirming the presence of injuries to his body. The Court was therefore unable to establish, to the necessary degree of proof, that he had been ill-treated, and found that this complaint had not been substantiated. Against that background, the Court found no violation of Article 3 in respect of Ali Musayev.   Article 5   It had been established that the brothers had been apprehended on 8 August 2000 by federal servicemen and had not been seen until 13 September 2000, when their corpses were found. The Government had produced no formal acknowledgement of or justification for their detention during the period in question. Ali and Umar Musayev had thus been victims of unacknowledged detention in complete disregard of the safeguards enshrined in Article 5. This constituted a particularly grave violation of their right to liberty and security enshrined in Article 5.     Article 13   In circumstances where a criminal investigation into a death or deaths had been ineffective and the effectiveness of any other remedy that might have existed, including the civil remedies, had consequently been undermined, the State had failed in its obligation under Article   13. There had therefore been a violation of Article 13 in connection with Articles 2 and 3, in so far as this latter provision was breached as a result of the treatment inflicted on Umar Musayev.   Article 38 § 1 (a)   Under this provision the Contracting States were required to furnish all necessary facilities to the Court, whether it was conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government’s part to submit such information which was in their hands, without a satisfactory explanation, might not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but could also reflect negatively on the level of compliance by the State concerned with its obligations under Article   38   §   1   (a). In a case where the application raised issues of the effectiveness of the investigation, the documents of the criminal investigation were fundamental to the establishment of facts and their absence might prejudice the Court’s proper examination of the complaint.   The Court had on several occasions requested the Government to submit a copy of the investigation file opened into the killing of the applicants’ relatives. In reply, the Government had produced only copies of procedural decisions instituting, suspending and reopening criminal proceedings, those of investigators’ decisions taking up the criminal case and letters informing Mrs Musayeva of the suspension and reopening of the criminal proceedings in the case.   The Court considered the Government’s explanations concerning the disclosure of the case file insufficient to justify withholding the key information which it had requested. Having regard to the importance of cooperation by the Government in Convention proceedings and the difficulties associated with the establishment of the facts in cases such as the present one, the Court found that the Russian Government had fallen short of their obligations under Article 38 §   1   (a) on account of their failure to submit copies of the documents requested in respect of the murder of Ali and Umar Musayev.     ***   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) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)   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.