CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 20 mai 2010

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Russia (Application n o   3678/06)     KILLING, UNLAWFUL DETENTION AND INEFFECTIVE INVESTIGATION OF ILL-TREATMENT COMPLAINTS IN CHECHNYA   Unanimously   Two violations of Article 2 (right to life), Violation of Article 3 (prohibition of torture and inhuman or degrading treatment) Violation of Article 5 (right to liberty and security) Violation of Article 13 (right to an effective remedy) in conjunction with Article 2 of the European Convention on Human Rights     Principal facts   The applicants are Mr Aslan Dzhabrailov, who was born in 1979, Ms Umkusu Dzhabrailova, who was born in 1949 and Ms Larisa Dzhabrailova, who was born in 1977. They live in Grozny, Chechnya. The first applicant is the brother of Valid Dzhabrailov, who was born in 1973; the second and third applicants are respectively his mother and sister.   According to the applicants, they were all at home on 16 February 2003 when, at about 7   a.m., a group of armed masked men in camouflage uniforms arrived at their gate with several motor vehicles. The men broke into the house and dispersed into different rooms without identifying themselves or producing any documents. They woke up violently all applicants threatening to shoot them if they moved. Then they forced the two brothers to the floor, handcuffed them and blindfolded Valid Dzhabrailov. Then they took their passports, beat them and dragged them outside and onto a military vehicle after which they drove away.   When they arrived at the point of destination, the two brothers had plastic bags put over their heads and were then forced to crawl into a cemented basement, where they were left cold and bleeding in separate cells. Aslan could hear from his cell his brother, detained in the same building, scream when interrogated. Aslan himself was also repeatedly beaten severely while interrogated and was not given any food or drink during two days of his detention. He was pressured to confess to being involved in an illegal armed group.   On 18 February 2003, Aslan was taken out of the basement, a plastic bag over his head, into a military car where he felt the cold dead body of his brother on the floor. The two brothers were driven to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny. One of the men shot Aslan in the head following which the two brothers were thrown into a pit under a piece of a construction block. The men then laid explosives on Aslan, placed Valid’s body on top, lit the fuse and drove away.   Aslan, still alive but having passed for dead, managed to set himself free and throw the explosives away before they blew up. He then ran out into the street and stopped the driver of a passing car who drove him home. He did not seek medical help immediately upon his return, but was examined by a doctor in December 2003 and August 2004. Those medical reports registered that he was suffering from pain in the skull, asthenia and neurosis.   Valid’s body was discovered on 18 February 2003 by the applicants on the same place where Aslan had left it. According to the applicants, it bore signs of torture; in particular his palms and feet were crushed and the head was hardly recognisable. He was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities. A medical statement and a death certificate were issued confirming his death.   The Government did not challenge the facts as presented by the applicants. However, they pointed out that the investigation file contained neither a mention of the first applicant’s beating in the car following the abduction nor his assertion that he had heard Valid Dzhabrailov screaming from being beaten while in detention.   Since 16   February 2003 the applicants have repeatedly applied in person and in writing to various public bodies, including the district department of the Ministry of the Interior (the ROVD) and prosecutors at various levels asking for assistance and details of the investigation. An investigation into the abduction of both brothers was opened on 18   February 2003 by the Grozny district prosecutor and the applicants were granted victim status on the following day. A number of investigative steps were undertaken, however, the investigation was suspended and resumed several times for failure to identify the perpetrators. The applicants complained to the prosecutor on three occasions about it being ineffective.   The Government submitted that the investigation was still in progress as perpetrators of the abduction and the killing had not been identified, but steps were being taken to have the crime resolved.     Complaints, procedure and composition of the Court   Relying in particular on Articles 2, 3, 5 and 13, the applicants complained about the two brothers having been abducted, and about Valid having been subsequently killed, by Russian servicemen, and that the domestic authorities had failed to carry out an effective investigation.   The application was lodged with the European Court of Human Rights on 19   January   2006.   Judgment was given by a Chamber of seven, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), judges , and Søren Nielsen , Section Registrar .     Decision of the Court   Right to life (Article 2)   The Court noted that the applicants’ version of the events had been supported by the witness statements and by the investigation. The applicants had consistently maintained in their complaints before the authorities that the abduction and the subsequent killing had been perpetrated by military servicemen and had kept asking the investigation to look into that possibility. The fact that a large group of armed men in uniform equipped with a number of vehicles had proceeded to check identity documents and arrest the Dzhabrailov brothers at their home in a town area had strongly supported that allegation. However, no steps had been taken to verify the involvement of State servicemen in the abduction and the subsequent killing. Having drawn inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide any explanation of the events in question, the Court found that Aslan and Valid had been arrested on 16   February 2003 at their home by State servicemen during an unacknowledged security operation and that Valid had been subsequently killed by State servicemen. There had accordingly been a violation of Article 2.   Investigation of the abduction and killing (Article 2)   The fact that almost six years after the crime had occurred, and the investigation had been opened, the most basic investigative steps had not been taken yet demonstrated the incomplete and inadequate nature of the investigation. Further, the reaction of the law-enforcement authorities, after the applicants informed them of the circumstances of the abduction, had contributed significantly to Valid’s killing because no necessary steps had been taken in the crucial first hours and days after the arrest. The authorities’ behaviour in the face of the applicants’ well-substantiated complaints suggested that they had been at least acquiescent in the situation and raised strong doubts about the objectivity of the investigation, which had been suspended and resumed several times leaving much needed investigative steps untaken. The applicants had only been kept abreast of the suspension and resumption of the investigation, but not of other significant developments. Moreover, owing to the time that had elapsed since the events, certain investigative   measures that ought to have been carried out much earlier could no longer usefully be conducted. Accordingly, the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the abduction and the death of Valid, in breach of Article   2.   Torture and no effective investigation into it (Article 3)   The Court found that it did not have sufficient evidence to conclude that Aslan had been tortured, given that it only had at its disposal Aslan’s own submissions and medical documents dated 10 and 18 months after the events. Therefore it rejected this complaint.   However, Aslan had complained before the prosecutor about having been ill-treated and his complaints had not been examined properly. Consequently, there had been a violation of Article 3 in this respect.   Unlawful detention (Article 5)   The Court had already established that Aslan and Valid had been detained by State servicemen on 16   February 2003. Their detention had not been acknowledged, had not been logged in any custody records and no official trace existed of it. In accordance with the Court’s practice, this fact in itself had to be considered a most serious failing because it enabled those responsible 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 the date, time and location, the name of the detainee and the persons detaining them, and the reasons for the detention, was incompatible with the very purpose of Article 5. Consequently, the Court found that Aslan and Valid had been held in unacknowledged detention without any of the safeguards contained in Article 5 which had constituted a particularly grave violation of the right to liberty and security as protected under Article 5.   Right to an effective remedy (Article 13) in conjunction with Article 2   The Court noted that the criminal investigation into the abduction of the two brothers and the violent death of one of them had been ineffective. In addition, the effectiveness of any other remedy that may have existed, including civil remedies, had been consequently undermined. Accordingly, there had been a violation of Article 13 in conjunction with Article 2 of the Convention.   Just satisfaction (Article 41)   The Court held   that   Russia is to pay to 3,500 euros (EUR) to the mother of Aslan and Valid in respect of pecuniary damage, as well as sums ranging between EUR 10,000 and EUR 41,200 to each applicant separately in respect of non-pecuniary damage, and EUR 5,500 for costs and expenses.   ***   The judgment is available only in English. The press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   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. All final judgments   are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .