Betayev and Betayeva v. Russia
The ECHR case of Betayev and Betayeva v. Russia (application no. 37315/03).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
BETAYEV AND BETAYEVA v. RUSSIA
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the European Convention on Human Rights in respect of Lecha and Ibragim Betayev;
· a violation of Article 2 in respect of the failure to conduct an effective investigation into the circumstances in which Lecha and Ibragim Betayev had disappeared;
· a violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of the applicants;
· a violation of Article 5 (right to liberty and security) in respect of Lecha and Ibragim Betayev;
· a violation of Article 8 (right to respect for private and family life) in respect of the applicants; and,
· two violations of Article 13 (right to an effective remedy).
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants, jointly, 70,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicants, Isa Yunusovich Betayev and Rosa Betayeva, are Russian nationals who were born in 1957 and 1958 respectively and live in Goyty, a village in Chechnya.
According to their version of the facts, on the night of 25 to 26 April 2003, at about 1.30 a.m. a group of around 20 armed men in camouflage uniforms arrived at the Betayevs’ house while they were sleeping. Some of them stayed outside, while others forcibly entered the house. All but three of them were wearing balaclava masks. They did not identify themselves and at first offered no explanation for their visit.
The applicants were held at gun point in their room while the servicemen conducted a thorough search of the premises which took about one hour. They indicated that they were looking for a machine gun and a radio station which the first applicant had been alleged to have in his possession. The applicants were not presented with a search warrant and no witnesses were asked to observe the scene. When the servicemen left, the applicants were ordered to remain in their house on pain of being shot if they came out of the building.
It was only at that point that the applicants discovered that Lecha and Ibragim Betayev had been taken away.
According to the Russian Government, the applicants’ sons were taken away by unidentified armed men. They denied that State agents had been responsible for their disappearance.
On 26 April 2003 the applicants started searching for Lecha and Ibragim Betayev. Both in person and in writing, they applied to various official bodies trying to find out the whereabouts and the fate of their sons. They also kept up a constant search for traces of their sons through informal channels, by contacting officials and other people. They took part in the identification of numerous dead bodies found in all parts of Chechnya, but in vain.
On 5 May 2003 the district prosecutor’s office informed the first applicant that an investigation into the kidnapping of Lecha and Ibragim Betayev had been opened.
On 24 October 2003 the first applicant lodged a complaint with the prosecutor’s office of the Chechen Republic requesting that the district prosecutor’s office be compelled to take urgent steps to investigate the disappearance of his sons.
On 14 November 2004, in response to a request from the first applicant, the district prosecutor’s office informed him that all the necessary investigative measures had been taken to solve the crime and that the search for the perpetrators was under way.
Despite specific requests by the Court the Government failed to disclose the main contents of relevant criminal file, and only provided procedural details. Relying on the information obtained from the Prosecutor General’s Office, the Government stated 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 witnesses or other participants in the criminal proceedings.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 25 October 2003.
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.
They relied on Articles 2, 3, 5, 8 and 13 of the Convention.
Decision of the Court
Evaluation of the facts
The Court was satisfied that the applicants had made out a prima facie case that their sons had been apprehended by State servicemen. Drawing inferences from the Government’s failure to submit documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court considered that Lecha and Ibragim Betayev had been apprehended on the night of 25 to 26 April 2003 at their home by State servicemen during an unacknowledged security operation.
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 Lecha and Ibragim Betayev or of any news of them for several years supported this assumption. In these circumstances the Court found that Lecha and Ibragim Betayev had to be presumed dead following their unacknowledged detention by State servicemen.
Concerning the disappearance and presumed death of Lecha and Ibragim Betayev
The Court has already found it established that the applicants’ sons must be presumed dead following their unacknowledged arrest by State servicemen and that their deaths can be attributed to the State. Since no justification had been advanced for 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 kidnapping
The Court noted that the investigation had been suspended and resumed a number of times and that for a period of more than two years no proceedings had been pending. Furthermore, the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures. In the light of these circumstances, the authorities had failed to carry out an effective criminal investigation into the disappearance of Lecha and Ibragim Betayev, in further violation of Article 2.
The applicants were the parents of the two disappeared men. For more than three years they had not had any news of their sons. During this period they had applied to various official bodies with enquiries about their sons, both in writing and in person. Despite their requests, the applicants had never received any plausible explanation or information as to what became of Lecha and Ibragim Betayev following their kidnapping. The responses received by the applicants mostly denied that the State had been responsible for their abduction or simply informed them that an investigation was ongoing. In view of these circumstances, the Court found that the applicants had suffered, and continued to suffer, distress and anguish as a result of the disappearance of their sons 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, in violation of Article 3.
The Court found that Lecha and Ibragim Betayev 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.
The Court noted that the servicemen had not shown the applicants a search warrant. It appeared that no search warrant had been drawn up at all, either before or after the events in question. In sum, the search of the applicant’s home had been carried out without any, or any proper, authorisation or safeguards. Accordingly, there had been an interference with the applicants’ right to respect for their home. In the absence of any reference on behalf of the Government to the lawfulness and proportionality of that measure, there had been a violation of the applicants’ right to respect for their home guaranteed by Article 8.
Article 13 in conjunction with Articles 2 and 8
In circumstances where, as here, the criminal investigation into the disappearance of two persons had been ineffective and the effectiveness of any other remedy that may have existed, including the civil remedies suggested by the Government, had consequently been undermined, the State had. failed in its obligation under Article 13. There had therefore been a violation of Article 13 in conjunction with Article 2.
Nor had the Government pointed to any avenue of redress which the applicants could have used to vindicate their right to respect for their home. They had thus failed to show that any remedies existed in respect of the unlawful search in issue. There had therefore been a violation of Article 13 in conjunction with Article 8.
The Court held unanimously that no separate issues arose under Article 8 regarding the applicants’ right to respect for their family or under Article 13 in respect of the alleged violations of Articles 3 and 5.