CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 mai 2008

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RUSSIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Utsayeva and Others v. Russia (application no. 29133/03).   The Court held unanimously that there had been:   a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case) of the European Convention on Human Rights in that the Russian Government had refused to submit documents requested by the Court; a violation of Article 2 (right to life) of the Convention concerning the disappearance of the applicants’ four relatives; a violation of Article 2 concerning the failure to conduct an effective investigation into the circumstances of their disappearance; a violation of Article 3 (prohibition of inhuman or degrading treatment) concerning the applicants, in connection with the disappearance of their close relatives; a violation of Article 3 in respect of one the applicants concerning the ill-treatment he sustained on 2 June 2002; a violation of Article 5 (right to liberty and security) concerning the applicants’ relatives; and, a violation of Article 13 (right to an effective remedy).   Under Article 41 (just satisfaction), in respect of pecuniary damage, the Court awarded 8,000   euros (EUR) to the first and second applicants jointly, EUR   5,000 to the third applicant, EUR   8,000, each, to the fourth, sixth and seventh applicants. In respect of non-pecuniary damage, the Court awarded EUR   40,000 to the first, second and third applicants jointly, EUR   5,000 to the second applicant, EUR   40,000 to the fourth and fifth applicants jointly, EUR   40,000 to the sixth applicant, and EUR   40,000 to the seventh and eighth applicants jointly. The Court awarded EUR   13,220 in respect of costs and expenses (The judgment is available only in English.)         1.     Principal facts   The applicants are eight Russian nationals who live in the village of Novye Atagi in Chechnya. They are: Satsita Utsayeva, Aslambek Utsayev, Khava Muslimova, Belita Dadyeva, Yakhita Taysumova, Zulay Abdulazimova, Birlant Tovmerzayeva and Larisa Tovmerzayeva. They were born in 1954, 1948, 1986, 1952, 1985, 1943, 1943 and 1968, respectively.   The case concerned the disappearance without trace of the applicants’ relatives - Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev - after they were abducted from their homes in Novye Atagi by State agents during a military operation on 2 June 2002.   Satsita Utsayeva and Aslambek Utsayev are the parents of Islam Utsayev, born in 1976. Khava Muslimova is Islam Utsayev’s wife. Belita Dadyeva and Yakhita Taysumova are the mother and sister of Movsar Taysumov, born in 1980. Zulay Abdulazimova is the mother of Idris Abdulazimov, born in 1984 and Birlant Tovmerzayeva and Larisa Tovmerzayeva are the mother and sister of Masud Tovmerzayev, born in 1974.   The applicants submitted that, early in the morning of 2 June 2002 a convoy including at least six armoured personnel carriers (APCs) and at least one other military vehicle - a UAZ all-terrain car - conducted a “sweeping up” operation in Novye Atagi. Local residents noted the hull numbers of three APCs and partially of the UAZ vehicle. Servicemen went to six houses during the operation and detained five men, including the applicants’ four relatives. The fifth man detained was Said-Magomed Imakayev: the Court has already given a judgment concerning his disappearance ( Imakayevva v. Russia , no.   7615/02).   At about 5.30 a.m Islam Utsayev and his wife (who was pregnant) and parents were woken when an APC knocked down the fence and drove into their courtyard. About 20 heavily-armed servicemen in uniform entered their home. Four of them were masked. The applicants described them as “contract soldiers”, aged between 30 and 40. They had Slavic features and spoke unaccented Russian. Without producing a warrant or explanation, the soldiers forced the Utsayev family members into the courtyard and onto the ground. They beat Islam. His father and wife were also beaten when they asked for explanations, and his wife submitted that she had a miscarriage later that day. Islam, who was taken from his bed in just a light T-shirt, was hooded, his hands were tied behind his back and he was forced into an APC. His mother tried to climb onto the APC to give her son footwear, but was pushed away and hit by several soldiers.   At about 6 a.m. Movsar Taysumov and his mother were at their home when an APC pulled up outside the house. Four men in green uniform entered the house. They were not wearing masks and allegedly had Slavic features and spoke unaccented Russian. The military did not introduce themselves or give reasons for the visit. They woke up Movsar and ordered him to dress quickly. They collected his passport, took him outside and put him into an APC. His mother tried to climb onto the APC, but the soldiers swore at her and hit her with rifle butts until she fell.   At about 6 a.m. Idris Abdulazimov was sleeping at home with his family when an APC stopped at their house and a group of about 30 military servicemen surrounded the house, about half of them wearing masks. The applicant described them as heavily-armed, wearing new camouflage uniforms and speaking unaccented Russian. Around ten servicemen entered the house, shouting and swearing. They took Idris away in an APC. His mother asked a soldier where they were going and was told they were going to the military commander’s office.   At about 6 a.m. an APC stopped outside the home of Masud Tovmerzayev and 20-25 armed servicemen entered the courtyard. The applicants and neighbours described them as well-armed and wearing green camouflage uniforms; some of them were masked. The soldiers handcuffed Masud and placed him in an APC, without allowing him to dress or to put on footwear, and drove away.   The Russian Government did not dispute most of the facts presented by the applicants. They accepted as established that on 2 June 2002 at about 5.30 a.m. unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons, supported by armoured vehicles, arrived in Novye Atagi and detained the applicants’ four relatives and that they were subsequently taken by the unidentified persons in an unknown direction. Immediately after the detention of the four men, their family members started a search for them, applying, among others, to prosecutors at various levels, military commanders and public figures. They also visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the Northern Caucasus.   The applicants were informed only that criminal investigations had been opened into the kidnappings of their relatives. They were not allowed access to the case files and have received no information about the investigation since June 2003.   The Government stated that no information had been obtained which would imply that the four men had been detained by federal forces.   The proceedings were repeatedly suspended and reopened. On 8 December 2006 they were again reopened by the deputy prosecutor of Chechnya who ordered, among other things, that ballistic and other expert reports be carried out and for information to be collected about the special operations carried out in Novye Atagi in June 2002 in view of a witness testifying that he had been involved, using one of the APCs identified by the applicants, in a special operation in Novye Atagi and that three civilians had been detained.   The investigation was adjourned. On 11 May 2007 it was again reopened with instructions to implement the measures specified by the prosecutor on 8 December 2006.   According to the applicants, in the early hours of the morning on 4 July 2004 and 30 July 2004 a large group of military personnel arrived in APCs at Satsita Utsayeva and Aslambek Utsayev’s home, and broke in, conducted an unsanctioned search and confiscated a number of items. On 4 July 2004 the applicants claimed that the servicemen severely beat Aslambek Utsayev, who is a pensioner and blind in one eye, knocking him unconscious. Satsita Utsayeva also submitted that the prosecutor’s office had refused to accept her complaint or to conduct an investigation. On 30 July 2004 masked servicemen again allegedly searched the house, hit Aslambek Utsayev in the back several times, dragged him into the garden and dropped him face down.   On 18 August 2004 the Court informed the Russian Government about the harassment claims. However, on 8 November 2004 the district prosecutor’s office refused to bring criminal proceedings.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 29   August 2003 and declared admissible on 15   February 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Nina Vajić (Croatian), Anatoly Kovler (Russian), Elisabeth Steiner (Austrian), Khanlar Hajiyev (Azerbaijani), Giorgio Malinverni (Swiss), George Nicolaou (Cypriot), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants complained that their four relatives had disappeared after being detained by State agents. They relied, in particular, on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing) and 13 (right to an effective remedy).   Decision of the Court   Article 38 § 1 (a)   The Court noted that it had asked the Russian Government to produce documents from the criminal investigation file opened in relation to the kidnapping of the applicants’ relatives, as the evidence contained in that file was needed to establish the facts. However, the Government had both failed to disclose most of the documents of substance from that file and to provide a satisfactory explanation to justify its decision. There had therefore been a breach of the obligation laid down in Article 38 § 1 (a) furnish all necessary facilities to the Court in its task of establishing the facts.   The Court’s evaluation of the facts   The applicants alleged that the four men had been taken away by State agents. The Government did not dispute any of the factual elements underlying the application and did not provide any other explanation.   The Court noted that the applicants’ version of the events was supported by the witness statements collected by the applicants and by the investigation. The applicants and the neighbours stated that the perpetrators had acted in a manner similar to that of a security operation – they had checked the residents’ passports and they had spoken Russian among themselves and to the residents. Most importantly, the witnesses referred to the use of military vehicles such as APCs, which could not have been available to paramilitary groups, and had even noted their hull numbers.   The domestic investigation also accepted those factual assumptions as presented by the applicants and took steps to check the involvement of law-enforcement bodies in the arrests. The investigation was unable to establish which precise military or security units had carried out the operation, but it did not appear that any serious steps were taken for that purpose.   Finally, the Court noted that the parties agreed that the applicants’ four relatives had been detained together with Said-Magomed Imakayev. In its judgment in Said-Magomed Imakayev’s case, the Court had found it established to the standard of proof “beyond reasonable doubt” that Said-Magomed Imakayev had been detained by the security forces on 2 June 2002, that he could be presumed dead following an unacknowledged detention and that the responsibility for his death lay with the State.   The Court considered that State servicemen had arrested the four men in their homes in the course of an unacknowledged security operation. In addition, there had been no reliable news of them since 2 June 2002; their names had not been found in the official records of any detention facilities and the Government had not submitted any explanation as to what had happened to them after their arrest. The Court reiterated that, in the context of the conflict in Chechnya, it could be regarded as life-threatening for a person to be detained by unidentified servicemen without any subsequent acknowledgment of their detention. The Court therefore concluded that it had been established beyond reasonable doubt that the four men had to be presumed dead.   The investigation had not identified the perpetrators of the kidnapping.   Four-and-a-half years after the crime had occurred and the investigation had been opened, the most basic investigation steps related to the establishment of the identity of the perpetrators, personal details of the victims and the identification of the military vehicles involved had not been taken.   In a case involving disappearances, the Court found it particularly regrettable that there should have been no thorough investigation of the relevant facts by the domestic prosecutors or courts. 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 carried out by the district prosecutor’s office, which contributed to their eventual disappearance.     Article 2   Deaths of the applicants’ four relatives The Court reiterated that the applicants’ four relatives had to be presumed dead following their unacknowledged arrest by State servicemen and that their deaths can be attributed to the State. In the absence of any justification for the use of lethal force by State agents, the Court found that there had been a violation of Article 2 concerning the four men. Investigation into the abduction of the four men The Court recalled that no proper investigation had taken place into the disappearance of the four men. A number of crucial steps were delayed and were eventually taken only after the communication of the applicants’ case before the European Court to the Russian Government, or not at all. Four-and-a-half years after the beginning of the proceedings, basic steps had still to be taken, such as identifying the provenance of the APC with a known hull number and questioning the district military commander about the units and officers involved, all measures which ought to have been taken immediately The fact that the applicants were only informed of the adjournment and reopening of the proceedings meant that the investigation failed to receive the required level of public scrutiny and that the interests of the next of kin in the proceedings were not protected. Also, although supervising prosecutors criticised deficiencies in the proceedings and ordered remedial measures, it appeared that their instructions were not complied with. The Court concluded that there had been a violation of Article 2 in that the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of the four men.   Article 3   The effect of the disappearance of the four men on their relatives The Court noted that the applicants were the parents, wife and sisters of the men who had disappeared. They were eyewitnesses to the arrests, during which some of them tried to interfere and were forcibly prevented from doing so. For more than five years they had not had any news of their close relatives, despite their efforts. The Court therefore found that the applicants suffered, and continued to suffer, distress and anguish as a result of the disappearance of their four close relatives and their inability to find out what had happened to them. 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.   The alleged ill-treatment of Aslambek Utsayev   The Court noted that witnesses confirmed that Aslambek Utsayev had been beaten during the arrest of his son Islam Utsayev (whose death was attributable to State agents). The applicants also informed the investigating authorities of the attack on Aslambek Utsayev. The Court therefore concluded that he was beaten and injured by the same State agents who had taken away Islam Utsayev. Despite that, it did not appear that he was granted victim status within the proceedings related to the kidnapping of his son. The Court concluded that Aslambek Utsayev had suffered inhuman treatment in violation of Article 3.   Article 5 The Court reiterated that the four men who had disappeared had been detained by State servicemen and had not been seen since. Their detention was not acknowledged, was not logged in any custody records and there existed no official trace of their subsequent whereabouts or fate. That 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 was incompatible with the very purpose of Article 5. The Court further considered that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relatives had been detained and taken away in life-threatening circumstances. However, the authorities failed to take prompt and effective measures to safeguard the applicants’ relatives against the risk of disappearance. Consequently, the Court found that the four men were held in unacknowledged detention without any of the necessary safeguards, which was a particularly grave violation of Article 5.   Article 13   The Court observed that, in circumstances where, as in the applicants’ case, the criminal investigation into violent deaths was ineffective and the effectiveness of any other remedy that might have existed, including civil remedies, was consequently undermined, the State had failed in its obligation under Article 13. Consequently, there had been a violation of Article 13 in conjunction with Articles 2 and 3.   The Court further held that no separate issues arose under Article 13 in respect of the alleged violations of Article 5   Article 6   The Court held unanimously that no separate issues arose under Article 6.   ***   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.