CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 15 juillet 2010

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Russia (application no. 20216/07)   TORTURE AND DISAPPEARANCE OF A YOUNG MAN IN CHECHNYA     Unanimously   Violations of Article 2 (right to life; obligation to conduct an effective investigation) Violations of Article 3 (prohibition of torture and inhuman treatment; obligation to conduct an effective investigation) 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 six Russian nationals who live in the settlement of Gikalo in Chechnya. They are the parents, sister, grandparents and uncle of Murad Gelayev, born in 1976, who was abducted by armed men in 2000, when Gikalo was under the full control of the Russian federal forces.   According to the family members’ submissions and the accounts provided by several eyewitnesses, a large group of military servicemen speaking unaccented Russian, some of them wearing masks, broke into the family’s house in the morning of 27 February 2000. They demanded to check Murad Gelayev’s passport and beat his mother, Amint Gelayeva, with rifle-butts. After handing the passport back, they dragged Murad outside. His mother begged the men to release him and they continued to beat her. They put Murad into a vehicle. When his mother tried to get into the vehicle one of the servicemen pushed her over, so that she fell to the ground and lost consciousness. As a result of the fall, she applied for medical help on the same day.   Together with 13 other residents of the village detained by military servicemen on the same day, Murad Gelayev was taken to a temporary detention facility in the Oktyabrskiy district. According to some of the men who were detained with Murad but later released, including his uncle, Murad and other detainees were stripped naked, repeatedly beaten with iron pipes and steel rods and had dogs set on them. During an interrogation an officer cut off Murad’s ear with a knife.   The family applied to various official bodies with inquiries about Murad’s whereabouts, including the Chechnya Ministry of the Interior and the Chechnya prosecutor, without receiving a plausible explanation as to what became of Murad following his kidnapping. In August 2001, the Grozny district department of the interior refused to open a criminal investigation into the abduction but opened a search file in connection with the disappearance. In July 2005, the Grozny district prosecutor’s office instituted a criminal investigation into the abduction and Murad’s father was subsequently granted victim status. The investigation was suspended and resumed on a number of occasions and has failed to identify the perpetrators.   The Russian Government did not dispute the facts as presented by the applicants. However, they stated that no special operation had been carried out in Gikalo on 27   February   2000 and that the federal forces had not been involved in the abduction of Murad Gelayev. They submitted that the criminal investigation into the abduction was still in progress.   In parallel, the family complained to the investigators about the ill-treatment of Murad’s mother and grandmother during the abduction. Following a forensic medical examination of his mother, the authorities refused to open a criminal investigation into the complaints in October 2006.     Complaints, procedure and composition of the Court   The applicants complained under Article 2 that Murad Gelayev had been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. Relying on Article 3 they complained that Murad had been subjected to torture, that his mother had been subjected to ill-treatment and that the authorities failed to investigate those complaints. They further contended that Murad’s detention had been in violation of Article 5 and that they had been deprived of effective remedies in respect of the alleged violations, contrary to Article 13.   The application was lodged with the European Court of Human Rights on 24 April 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President, Anatoly Kovler (Russian Federation), Elisabeth Steiner (Austria), Dean Spielmann (Luxemburg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), 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 investigation file concerning the abduction of Murad Gelayev, the Government had produced only a selection of documents from the case file. It could be inferred from the Government’s conduct that the allegations by Murad’s relatives were well founded. The allegations were further supported by the witness statements the relatives had collected and by the investigation. The fact that a large group of armed men in uniform and equipped with military vehicles had been able to move freely in broad daylight, to check identity documents and apprehend a number of people at their homes, strongly supported the family members’ allegation that they were State servicemen conducting a security operation. The Government had not disputed the facts as presented by the family and had failed to provide any other plausible explanation of the events on 27   February 2000.   The Court therefore concluded that Murad Gelayev had been arrested by State servicemen during an unacknowledged security operation. In the context of the conflict in Chechnya, the detention of a person by unidentified servicemen without any subsequent acknowledgment of the detention, could be regarded as life-threatening. Given that there had been no reliable news of Murad for more than ten years and that his name had not been found in any official detention facility records, the Court found that he had to be presumed dead following his detention by State servicemen. There had therefore been a violation of Article 2 concerning the death of Murad Gelayev.   Article 2 (investigation into the abduction)   Although the authorities had been made aware of the abduction in June 2001, they did not open a criminal investigation until July 2005. Subsequently a number of essential steps were significantly delayed or not taken at all. For example, the crime scene examination was conducted more than two years after the opening of the investigation and a number of important witnesses, such as the police officers serving at the detention facility at the time of the events, were not questioned until more than four years after the beginning of the proceedings. Such delays, for which there had been no explanation, demonstrated the authorities’ failure to act and constituted a breach of the obligation to deal diligently and promptly with such a serious crime. Murad’s relatives had further not been properly informed of the progress of the investigation and there had been lengthy periods of inactivity without a plausible explanation. The Court concluded that the authorities had failed to carry out an effective criminal investigation into the circumstances of Murad Gelayev’s disappearance, in breach of Article 2.   Article 3 (torture, ill-treatment and lack of investigation)   The evidence submitted was consistent in describing that after the abduction the servicemen, who had taken Murad Gelayev away, subjected him to beatings and cut off his ear. The Court considered that such treatment reached the threshold of “torture” since it must have caused him not only physical pain, it must also have made him feel humiliated and caused fear and anguish as to what might happen to him. Having regard to the Government’s failure to plausibly refute the applicants’ allegations, the Court found that there had therefore been a violation of Article 3 concerning the torture of Murad Gelayev.   The Court also concluded that the Government had failed to conduct an effective investigation into the torture of Murad Gelayev, in a further violation of Article 3.   As regards the alleged ill-treatment of Murad Gelayev’s mother, Amint Gelayeva, the evidence showed that during the abduction the servicemen subjected her to beatings, as a result of which she applied for medical assistance. The documents submitted by the Government confirmed that she had applied for medical help on the day of the abduction. However, the forensic examination was carried out more than six years after the alleged ill ‑ treatment. The Court therefore concluded that she had been subjected to ill ‑ treatment reaching the threshold of torture and that the Government had failed to conduct an effective investigation into her ill-treatment, in a further two violations of Article 3.   Article 5 (right to liberty and security)   The Court had already found that Murad Gelayev had been apprehended by State servicemen and had not been seen since. His detention had not been acknowledged or logged in any custody records and no official trace existed of his 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 complaints by Murad’s relatives that he had been detained and taken away in life-threatening circumstances. Consequently, the Court found that Murad   Gelayev had been held in unacknowledged detention without any of the safeguards contained in Article 5, which constituted a particularly grave violation of that Article.   Article 13 (right to an effective remedy)   As the criminal investigation into the disappearance had been ineffective, and the effectiveness of any other remedy that might have existed had consequently been undermined, the State had failed in its obligation under Article 13. There had consequently been a violation of Article 13 in conjunction with Article 2.   Just satisfaction   The Court held that Russia is to pay, in respect of pecuniary damage, 18,000   euros (EUR) to the parents of Murad Gelayev; in respect of non-pecuniary damage, EUR   10,000 to Amint   Gelayeva and EUR 78,000 to all six relatives jointly; and EUR 5,500 to all six relatives 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. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Nina Salomon (tel: + 33 (0)3 90 21 49 79) or Emma Hellyer (tel: + 33 (0)3 90 21 42 15) 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 .