CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 mai 2010

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Russia (application no. 16622/05)   DISAPPEARANCES AND INEFFECTIVE INVESTIGATION OF ILL-TREATMENT COMPLAINTS IN CHECHNYA   Unanimously   Violation of Article 2 (right to life; obligation to conduct an effective investigation) Violation of Article 3 (prohibition of torture; obligation to conduct an effective investigation) Violation of Article 5 (right to liberty and security) Violation of Article 8 (right to respect for a person’s home) of the European Convention on Human Rights Violation of Article 1 of Protocol 1 (protection of property) to the European Convention on Human Rights Violation of Article 13 (right to an effective remedy) in conjunction with Article 8 and Article 1 of Protocol 1     Principal facts   The applicants are ten Russian nationals from two families who live in the village of Gekhi, Urus-Martan district (Chechnya). They are the parents, siblings and sister-in-law, respectively, of Beslan and Movsar Khutsayev, born in 1981 and 1984, and the parents and sisters of Adam Didayev, born in 1977.   According to the applicants’ submissions and the accounts provided by some of their neighbours, both families were at home in their respective houses in Gekhi, when in the early morning hours of 16 December 2001 a group of armed masked men in camouflage uniforms rushed into each of the houses without introducing themselves or producing any documents. As they spoke Russian without an accent, the applicants assumed that they were Russian military servicemen. One of the armed men told the first applicant family they had come to carry out an identity check. One of the applicants of the second family overheard one of the armed men identifying himself via his portable radio as “a major of the Main Intelligence Department. The armed men beat several members of both families; they searched their respective houses and seized their possessions, including money, food and valuables. They took Beslan and Movsar Khutsayev, and Adam Didayev away to a number of military vehicles parked nearby.   The Government did not dispute the circumstances of the detention, but objected to the description of the intruders as servicemen.   Since 16 December 2001, the applicants have searched for their relatives. They repeatedly applied in person and in writing to various public bodies, including the Russian President, the Russian State Duma, the Chechen administration, military commanders’ offices and prosecutors’ offices at different levels, describing in detail the circumstances of their relatives’ apprehension and asking for help in establishing their whereabouts. In February 2002, the district prosecutor instituted a criminal investigation into the disappearance of the three men. In April 2002, the remains of three men were found together with clothes identified by a relative as belonging to Beslan and Movsar Khutsayev. The prosecutor undertook a number of investigative steps. However, the investigation was suspended and resumed several times for failure to identify the perpetrators. Both families complained to the prosecutor about the investigation being ineffective.   According to the Government’s submissions, the investigation had so far failed to identify the perpetrators and was still in progress.   Complaints, procedure and composition of the Court   The applicants complained that their relatives were detained by Russian servicemen during an unacknowledged security operation, that during the raid three of the applicants as well as their disappeared relatives were beaten by the abductors and that the authorities’ subsequent investigation into their allegations was ineffective. They relied in particular on Articles 2, 3, 5 and 13. Relying on Article 8 and Article 1 of Protocol No. 1 they also complained about the searches of their homes and seizure of their possessions.   The application was lodged with the European Court of Human Rights on 26 April 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President, Nina Vajić (Croatia), Anatoly Kovler (Russian Federation), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxemburg), Sverre Erik Jebens (Norway), judges,   and also Søren Nielsen, Section Registrar.   Decision of the Court   Article 2 (right to life)   The Court noted that despite its requests for a copy of the entire investigation file into the abduction of Beslan Khutsayev, Movsar Khutsayev and Adam Didayev, the Government had produced only part of the documents from the case file, referring to the incompatibility of such disclosure with domestic legislation. The Court observed that in previous cases it had already found that explanation insufficient to justify the withholding of key information it had requested. It could be inferred from the Government’s conduct that the applicants’ allegations were well founded.   The Court observed that the applicants’ allegation that the persons who had taken their relatives away and then killed them had been State agents was supported by witness statements. The fact that a large group of armed men in uniform, equipped with military vehicles, had been able to move freely through military roadblocks during curfew hours and proceeded to check identity documents and apprehended several persons at their homes strongly supported the applicants’ allegation that these were State servicemen conducting a security operation. The domestic investigation had also accepted factual assumptions as presented by the applicants. Having drawn inferences from the Government’s failure to submit the documents in their exclusive possession or to provide another plausible explanation of the events in question, the Court found that Beslan Khutsayev, Movsar Khutsayev and Adam Didayev had been arrested by State servicemen during an unacknowledged security operation. There had been no news of them since and the Government had provided no explanation as to what happened to them after their arrest. The Court therefore found that the applicants’ relatives had to be presumed dead following their detention and that the deaths could be attributed to the State. There had accordingly been a violation of Article 2.   Article 2 (investigation of the disappearance)   Although the authorities had immediately been made aware of the crime, the investigation into the events of 16 December 2001 had only been instituted more than two months later. Such a postponement had been liable to affect the investigation of a kidnapping in life-threatening circumstances. A number of crucial steps including questioning of other witnesses, examination of the sites and medical examinations of the victims, had only been conducted more than five years after the event, a delay for which there had been no explanation. Despite the witnesses’ specific references to the use of military vehicles and the identification of one of the intruders as a “major of the Main Intelligence Department”, the investigation had failed to identify any of the servicemen who had been involved in the detention of the applicants’ relatives. Finally, the investigation had been adjourned and resumed several times and there had been lengthy periods of inactivity. Accordingly, the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of the applicants’ relatives, in breach of Article 2.   Article 3 (ill-treatment and lack of investigation thereof)   The Court noted that the beating of three of the applicants and of the applicants’ relatives during their arrest had been confirmed by several witness statements. Although the applicants had informed the investigating authorities from the outset of the injuries sustained by the kidnappers, the authorities had not obtained a medical examination until five years after the event. In the light of these considerations, the Court found it established that three of the applicants and the applicants’ relatives had suffered inhuman treatment, in breach of Article 3.   The applicants had submitted their statements alleging ill-treatment to the authorities, but the domestic investigation had produced no tangible results. The Court’s findings about the shortcomings of the investigation into the disappearance of the applicants’ relatives also applied to their complaint about the alleged ill-treatment. There had therefore been a breach of Article 3 also in its procedural aspect.   The Court further found that, as close relatives of the disappeared persons who witnessed their abduction, the applicants – with the exception of Beslan and Movsar Khutsayev’s sister in law – had endured moral suffering as a result of the disappearance and the State’s failure to investigate it properly.   Article 5 (right to liberty and security)   The Court had already established that the applicants’ relatives had been apprehended by State servicemen on 16 December 2001 and had not been seen since. Their detention had not been acknowledged nor logged in any custody records and no official trace existed of their subsequent fate. 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 and to escape accountability for the fate of a detainee. The absence of detention records was incompatible with the very purpose of Article 5. Moreover, 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. Consequently, the Court found that Beslan Khutsayev, Movsar Khutsayev and Adam Didayev had been held in unacknowledged detention without any of the safeguards contained in Article 5, which had constituted a particularly grave violation of that Article.   Article 8 (right to respect for a person’s home) and Article 1 of Protocol 1 (protection of property)   The applicants had promptly communicated the information concerning the search of their home and the seizure of their property to the law-enforcement authorities, which had, however, not taken any measure until more than five years late, when two of the applicants had been granted the status of civil plaintiffs and the actions of the perpetrators had been additionally qualified as theft and robbery. As it had already found that the persons who entered the applicants’ home belonged to the State military or security forces, the Court found that the searches of the applicants’ homes and the seizure of their property were imputable to the State. The servicemen had not shown a search warrant or indicated any reasons for their actions. In the absence of any reference by the Government to the lawfulness of these measures, the Court found that there had been a violation of Article 8 and Article 1 of Protocol No. 1.   Article 13 (right to an effective remedy)   The Court had already found that the criminal investigation into the disappearance of the applicants’ relatives had been ineffective. The effectiveness of any other remedy had consequently been undermined. There had accordingly been a violation of Article 13 in conjunction with Article 2. Moreover, as the authorities had denied involvement in the alleged intrusion into the applicants’ houses and the taking of their belongings and the domestic investigation had failed to examine the matter, the applicants did not have any effective domestic remedies in respect of the alleged violations under Article 8 and Article 1 of Protocol No. 1. There had accordingly been a violation of Article 13 in conjunction with these two articles as well.     Article 41 (just satisfaction)   The Court held that Russia is to pay, in respect of pecuniary damage, 419 euros (EUR) to the mother of Beslan and Movsar Khutsayev and EUR 1,243 to the mother of Adam Didayev; in respect of non-pecuniary damage, EUR 65,000 jointly to the parents and siblings of Beslan and Movsar Khutsayev, EUR 12,000 each to the father of Beslan and Movsar Khutsayev and to the father and sister of Adam Didayev, and EUR 65,000 jointly to the parents and sisters of Adam Didayev; and EUR 1,368 to the applicants jointly in respect of costs and expenses.       ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts   Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39)   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 .