CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 mai 2008

.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 } .s76CF415B { page-break-before:always; clear:both } .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   387 29.5.2008   Press release issued by the Registrar   CHAMBER JUDGMENT SANGARIYEVA AND OTHERS v. RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Sangariyeva and Others v. Russia (application no. 1839/04).   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 Musa Gaytayev; a violation of Article 2 concerning Russia’s failure to conduct an effective investigation into Musa Gaytayev’s disappearance; a violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of the applicants; a violation of Article 5 (right to liberty and security) in respect of Musa Gaytayev; and, a violation of Article 13 (right to an effective remedy).   Under Article 41 (just satisfaction) of the Convention, the Court awarded in respect of pecuniary damage 2,000   euros (EUR) to Musa Gaytayev’s mother and EUR   10,000, jointly, to his wife and children. In respect of non-pecuniary damage, it further awarded EUR   2,000 to Musa Gaytayev’s brothers, EUR   6,000 to his mother and EUR   28,000, jointly, to his wife and children. The applicants were awarded EUR 6,150 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The case concerned the applicants’ allegation that their relative Musa Gaytayev, born in 1972, disappeared after being detained by Russian servicemen at the family home in Martan-Chu, a village in Chechnya, and that the Russian authorities failed to carry out an adequate investigation into their allegation.   The applicants are nine Russian nationals: Aset Sangariyeva, Mansur Gaytayev, Muslim Gaytayev, Makka Gaytayeva and Roza Sangariyeva, Musa Gaytayev’s wife and four children; Khaza Gaytayeva, his mother; and Abubakar, Adam and Israil Gaytayev, his three brothers. They were born in 1974, 1995, 1997, 2001, 2003, 1939, 1971, 1977 and 1964, respectively.   According to the applicants, on 24 January 2003 in the early hours of the morning a group of 20 armed men in camouflage and wearing balaclavas, who had arrived in military Ural trucks, forced all the family’s male adults out into the courtyard for an identity check. The applicants believed the group to be Russian servicemen. Musa Gaytayev, barefoot, was then led away by the servicemen and was seen by one of his brothers, Israil, being loaded into one of the trucks. Israil saw the trucks leave in the direction of Urus-Martan and go through a nearby military checkpoint without being stopped. Magomed Gaytayev, a cousin, who worked as police officer in Gudermes (Chechnya), was detained at the same time. Abandoned the same day along a country road, he testified that, although he and Musa had had sacks pulled over their heads, he had at one point recognised that they had been taken to Urus-Martan military commander’s office. The applicants have had no news of Musa Gaytayev since.   The Government denied that Russian servicemen were responsible for the disappearance of Musa Gaytayev and submitted that he had been kidnapped by unidentified armed men. An investigation into the disappearance was opened on 13 February 2003. Aset Sangariyeva was granted victim status on 16 February 2003. She and her husband’s mother, brothers and cousin were also questioned. The investigation was suspended on 14 April 2003 and resumed on 25 April 2005. Suspended and resumed again several times since then, the investigation has to date failed to identify those responsible for Musa Gaytayev’s disappearance.   In the years that followed their relative’s disappearance, the applicants requested the authorities for assistance, both in person and in writing. Aset Sangariyeva claimed that, although granted victim status, she was only informed of the adjournments and reopenings of the investigation into her husband’s disappearance. In February 2005 she lodged a complaint with Urus-Martan Town Court concerning the failure to carry out an effective investigation. In March 2005 the town court, finding that the servicemen on duty at the Urus-Martan check-point and military commander’s office should have been questioned, ordered a more thorough investigation to be carried out. The authorities have not, apparently, thus far complied with those instructions.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 5   January 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Anatoly Kovler (Russian), Elisabeth Steiner (Austrian), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), Giorgio Malinverni (Swiss), George Nicolaou (Cypriot), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants alleged that their relative Musa Gaytayev disappeared after being detained by Russian servicemen and that the Russian authorities failed to carry out an adequate investigation into their allegation. They also claimed that they endured mental suffering as a result of their relative’s disappearance and the failure by the authorities to investigate. They relied on Articles   2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy).   Decision of the Court   Article 2   Concerning the disappearance of Musa Gaytayev   The Court found that the fact that a large group of armed men in uniform had been able to move freely through military roadblocks during curfew hours strongly supported the applicants’ allegation that Musa Gaytayev’s abductors had been Russian servicemen.   Furthermore, drawing inferences from the Government’s failure to submit documents – despite specific requests from the Court – to which it exclusively had access and the fact that it had not provided any other plausible explanation for the events in question, the Court considered that Musa and Magomed Gaytayev had been arrested in the early hours of 24   January 2003 by Russian servicemen during an unacknowledged security operation.   There had been no reliable news of the applicants’ relative since 24 January 2003. His name had not been found in any official detention facility’s records and the Government had not submitted any explanation as to what had happened to him after his abduction.   In the context of the conflict in Chechnya, when a person was detained by unidentified servicemen without any subsequent acknowledgment of their detention, the situation could be regarded as life-threatening. The absence of Musa Gaytayev or any news of him for several years corroborated that assumption. Furthermore, the investigation into his disappearance, dragging on for more than four years, had been incomplete and inadequate. Moreover, the authorities’ attitude towards the abduction had contributed significantly to the likelihood of his disappearance.   The Court therefore considered that the applicants’ relative had to be presumed dead following his unacknowledged detention by Russian servicemen. Noting that the authorities had not justified the use of lethal force by their agents, the Court found that there had been a violation of Article 2 in respect of Musa Gaytayev.   Concerning the inadequacy of the investigation into the disappearance   Despite not having access to the complete investigation file, it was clear to the Court that a number of crucial steps had been delayed where prompt action had been vital. The applicants had immediately informed the authorities about the abduction. However, the investigation had only been opened 20 days later. Furthermore, as noted in the decision of March 2005, the servicemen who had been on duty at the Urus-Martan check-point and military commander’s office had not been questioned. Even though Aset Sangariyeva had been granted victim status soon after the abduction, she had only been informed of the adjournments and reopenings of the proceedings, and not of any other significant developments. Indeed, for two years, between 14 April 2003 and 25 April 2005, the investigation had been completely inactive.   The Russian courts had criticised those deficiencies and ordered a more complete investigation. It appeared, however, that the authorities have not yet complied with those instructions. In any event, the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures.   The Court therefore concluded that the authorities had failed to carry out an effective criminal investigation into the circumstances of the disappearance of Musa Gaytayev, in further violation of Article 2.   Article 3   The Court noted that the applicants were close relatives of Musa Gaytayev and that they had been eyewitnesses to his abduction. For almost four years they had had no news of him. During that period they had applied to various official bodies, both in writing and in person. Despite their enquiries, they had never received any plausible explanation or information as to what had become of their relative following his abduction. The responses they had received mostly denied the State’s responsibility for his arrest or simply informed them that an investigation had been ongoing.   The Court therefore found that the applicants had suffered, and continued to suffer, distress and anguish as a result of the disappearance of their relative 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 inhuman treatment, in violation of Article 3.   Article 5   The Court reiterated that Musa Gaytayev had been arrested by Russian servicemen on 24   January 2003 and had not been seen since. His detention had not been logged in any custody records and there existed no official trace of his subsequent whereabouts or fate. That fact 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.   The Court further considered that the authorities should have been more aware of the need for a thorough and prompt investigation of the applicants’ complaints that their relative had been detained and taken away in life-threatening circumstances. However, there was no doubt that the authorities had failed to take prompt and effective measures to safeguard him against the risk of disappearance.   Consequently, the Court found that Musa Gaytayev had been held in unacknowledged detention without any of the safeguards contained in Article 5. There had therefore been a particularly grave violation of Article 5.   Article 13   The applicants should have had available to them effective remedies such as a thorough and effective investigation capable of leading to the identification and punishment of those responsible for their relative’s death and the possibility to claim compensation.   In circumstances where, as in the applicants’ case, the criminal investigation into the disappearances had been ineffective and the effectiveness of any other remedy that might have existed, had consequently been undermined, the State had failed in its obligations under Article 13 in conjunction with Article 2.   No separate issues arose under Article 13 in conjunction with Articles 3 and 5.   ***   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) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   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.