Atabayeva and Others v. Russia
The ECHR case of Atabayeva and Others v. Russia (application no. 26064/02).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
ATABAYEVA AND OTHERS v. RUSSIA
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 Government refused to submit documents requested by the Court;
· a violation of Article 2 (right to life) of the Convention in respect of Ramzan Kukuyev;
· a violation of Article 2 in respect of the failure to conduct an effective investigation into the circumstances in which Ramzan Kukuyev disappeared;
· a violation of Article 5 (right to liberty and security) in respect of Ramzan Kukuyev;
· a violation of Article 13 (right to an effective remedy) in respect of the alleged violation of Article 2.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants, jointly, 10,000 euros (EUR) in respect of pecuniary damage, EUR 35,000 in respect of non-pecuniary damage and EUR 5,650 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicants, Maryam Khasanovna Atabayeva, Radima Ramzanovna Kukuyeva, Makka Ramzanovna Kukuyeva and Markha Ramzanovna Kukuyeva, are Russian nationals who were born in 1973, 1993, 1996 and 1998, respectively, and live in Tsa-Vedeno (Chechnya). They are the spouse and children of Mr Ramzan Kukuyev, who was born in 1966.
According to their account, in the morning of 3 May 2001 the Russian federal security forces commenced a “sweeping” operation in the village of Tsa-Vedeno.
Between 5 and 6 a.m. on that day a group of about forty servicemen entered the house in which the Kukuyevs lived with other family members. Two or three of the military personnel were wearing masks. Ramzan Kukuyev was ordered to show his identity papers which he produced together with a medical certificate stating that he was not fit for work. The male members of the family were taken into the courtyard where they were ordered to take off their shirts and were body searched. The military also searched the household.
The servicemen then forced Ramzan Kukuyev, his brother and two cousins into armoured personnel carriers (“APCs”) which drove away. His wife attempted to follow them but the servicemen threatened her with firearms. His four-year-old daughter ran after her father, but one of the soldiers threw her aside with the result that she fell and broke her collar bone.
Ramzan Kukuyev, along with other residents of Tsa-Vedeno arrested during the “sweeping” operation, was taken to a federal military base on the outskirts of the village.
According to a resident of Tsa-Vedeno detained at the same time, in the evening the military ordered the villagers to stand in a row. Some of them, including Ramzan Kukuyev, were ordered out of the line. They were blindfolded and taken to a military helicopter. The helicopter and the servicemen then left in the direction of the town of Shali. Ramzan Kukuyev has not been seen since.
The events of 3 May 2001, including the detention and disappearance of Ramzan Kukuyev, were reported by a number of human rights NGOs, and in particular by Human Rights Watch in its report “Last seen…: continued ‘disappearances’ in Chechnya” (April 2002) and by the Memorial Human Rights Centre in June 2003.
According to the Government’s version of events, at about 11 a.m. on 3 May 2001 unidentified persons in masks and camouflage uniforms armed with machine guns arrived in armoured vehicles in the village of Tsa-Vedeno. They detained 14 residents of the village and took them away to an unknown destination. Subsequently, all the villagers except for the Ramzan Kukuyev and two others were released.
From 4 May 2001 the first applicant applied repeatedly to various public bodies, including the military commander’s office, the prosecutor’s office of the Vedeno District (“the district prosecutor’s office”), other prosecutors’ offices at different levels, the Office of the President of Russia and the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic. She informed them how her husband had been detained and asked for assistance and details of the investigation. In most cases the enquiries remained unanswered or only formal replies were given indicating that her requests had been forwarded to various prosecutors’ offices.
The first applicant was not informed promptly of the decision taken in November 2001 to institute a criminal investigation into her husband’s abduction. Subsequently the criminal proceedings were suspended on several occasions, but she never received the relevant decisions. The investigating authorities questioned the first applicant on several occasions, but no other members of the Kukuyev family or neighbours were ever questioned.
The investigation failed to establish involvement of the Russian military. Nor did it identify the alleged perpetrators or establish Ramzan Kukuyev’s whereabouts.
Despite specific requests made by the Court on two occasions, the Government refused to submit a copy of the entire investigation file, stating that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses.
The Government only submitted a list of documents in the file, from which it could be ascertained that there were at least 186 pages in the file, and several procedural documents.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 28 June 2002 and declared partly admissible on 7 June 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),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
and also Søren Nielsen, Section Registrar.
The applicants alleged, in particular, that Ramzan Kukuyev had disappeared after having been unlawfully detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter; that their right to respect for private and family life had been breached as a result of the unlawful detention and disappearance of their husband and father; and that they had been deprived of effective remedies in respect of these violations. They relied on Articles 2 (right to life), 5 (right to liberty and security), 8 (right to respect for private and family life) and 13 (right to an effective remedy).
Decision of the Court
Article 38 § 1 (a)
The applicants had alleged that their relative had been illegally arrested by the authorities and had then disappeared. They had also alleged that no proper investigation had taken place. In view of these allegations, the Court had asked the Government to produce documents from the criminal investigation file opened in relation to the kidnapping. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts in the present case.
The Court accepted that some documents had been destroyed by fire in 2002 but this did not explain why the materials which must been introduced in the case file during the subsequent years of the investigation had not been produced to the Court. The Government’s explanation, based on Article 161 of the Code of Criminal Procedure, was insufficient to justify the withholding of the key information requested. Referring to the importance of a respondent Government’s cooperation in Convention proceedings, the Court found that there had been a breach of the obligations laid down in Article 38 § 1 (a) to furnish all necessary facilities to the Court in its task of establishing the facts.
Assessment of the facts
The Court was satisfied that the applicants had made a prima facie case that Ramzan Kukuyev had been detained by State servicemen. There had been no reliable news of him since 3 May 2001. His name had not been found in any official detention facilities’ 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 the Chechen Republic, when a person was detained by unidentified servicemen without any subsequent acknowledgment of the detention, this could be regarded as life-threatening. The absence of Ramzan Kukuyev or of any news of him for several years supported this assumption.
The Court accordingly considered that Ramzan Kukuyev had to be presumed dead following his unacknowledged detention by State servicemen.
Concerning the alleged violation of the right to life of Ramzan Kukuyev
The Court had already found it established that Ramzan Kukuyev had to be presumed dead following unacknowledged arrest by State servicemen and that the death could be attributed to the State. In the absence of any justification in respect of the use of lethal force by State agents, there had been a violation of Article 2.
Concerning the alleged inadequacy of the investigation of the abduction
Although the authorities had been immediately alerted by the applicants, the investigation had not opened until almost seven months after the abduction. That delay in itself was liable to affect the investigation of a crime such as kidnapping in life-threatening circumstances, where crucial action had to be taken in the first days after the event.
The considerable delays, sometimes for several years, in taking important investigative measures not only demonstrated the authorities’ failure to act of their own motion but also constituted a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime.
Moreover, the investigators had failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.
In these circumstances the authorities had failed to carry out an effective criminal investigation into the disappearance of Ramzan Kukuyev, in breach of Article 2.
The Court found that Ramzan Kukuyev had been held in unacknowledged detention without any of the safeguards contained in Article 5. This constituted a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.
The Court held that it was not necessary to examine the applicants’ complaint under Article 8.
In circumstances where, as here, the criminal investigation into a disappearance in life-threatening circumstances had been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies, had consequently been undermined, the State had failed in its obligation under Article 13 of the Convention.
There had therefore been a violation of Article 13 in conjunction with Article 2 of the Convention.
No separate issues arose under Article 13 taken in conjunction with Article 5.