Bitiyeva and X v. Russia
The ECHR case of Bitiyeva and X v. Russia (application nos. 57953/00 and 37392/03).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
BITIYEVA AND X v. RUSSIA
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Bitiyeva and X v. Russia (application nos. 57953/00 and 37392/03).
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 the killing of Zura Bitiyeva, Ramzan Iduyev, Idris Iduyev and Abibakar Bitiyev;
· that there had been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances of their deaths;
· that there had been a violation of Article 13 (right to an effective remedy) in respect of the alleged violations of Article 2;
· that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of Ms Bitiyeva in 2000;
· that there had been a violation of Article 5 (right to liberty and security) in respect of Ms Bitiyeva in 2000;
· that the Russian Government had failed to comply with their obligations under Article 38 § 1 (a) (examination of the case) to furnish all necessary facilities to the Court in its task of establishing the facts;
· that there had been no violation of Article 34 (individual applications); and,
by five votes to two:
· that there had been no violation of Article 3 in respect of X.
Under Article 41 (just satisfaction), the Court awarded X a total of 85,000 euros (EUR) in respect of non-pecuniary damage, 10,000 of which was sustained by Mrs Bitiyeva. She was also awarded a total of EUR 7,876 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The first applicant, Zura Sharaniyevna Bitiyeva, was born in 1948 and lived in Kalinovskaya (Chechnya). An active political figure who participated in anti-war protests, she was killed on 21 May 2003.
The second applicant is Ms Bitiyeva’s daughter, X, who was born in 1976 and currently lives in Germany, where she sought asylum.
On 25 January 2000 Ms Bitiyeva and her son, Idris Iduyev, were detained at their home and then taken to the Chernokozovo detention facility, which, according to the Government, was used as a reception and identification centre for persons without identity documents.
Ms Bitiyeva alleged that she was subjected to ill-treatment during her detention, in particular lack of heating, overcrowding, poor food and hygiene, humiliation on account of her being a woman and of Chechen origin and witnessing other detainees’ ill-treatment, including her son’s. She suffered from serious respiratory, heart and inflammatory diseases and claimed that she was denied medical assistance. In support of those allegations, she submitted her own statement of facts, together with testimonies by another detainee and her daughter. She also referred to publicly available information (notably reports by the press, NGOs and the Council of Europe’s CPT – European Committee for the Prevention of Torture) about the intolerable conditions of detention at Chernokozovo at the relevant time.
Her medical condition deteriorated rapidly and, on 17 February 2000, she was transferred to hospital. While there, she was issued on 2 March with a certificate stating that her alleged participation in illegal armed groups had been investigated but no incriminating evidence had been found. She was discharged on 15 March 2000.
The Government claimed that Ms Bitiyeva was arrested in accordance with a Presidential Decree which aimed at prevention of vagrancy and allowed for detention of up to ten days. They submitted a number of medical documents drawn up after her release which confirmed that she had been placed in hospital in a serious condition. They claimed that further investigation of the complaint was impossible owing to absence of records and change of staff at the detention facility. No official information was available concerning the legal status of the detention centre prior to 8 February 2000.
Neither Ms Bitiyeva nor her son Idris Iduyev were ever charged with any crime in relation to their detention.
Ms Bitiyeva lodged a complaint with the European Court of Human Rights on 25 April 2000.
On 21 May 2003 Ms Bitiyeva, her husband, Ramzan Iduyev, their son, Idris Iduyev, and her brother, Abubakar Bitiyev (X’s father, brother and uncle, respectively) were killed at Ms Bitiyeva’s house in Kalinovskaya. X submitted three statements made by witnesses to the events: two neighbours and her brother I. (Ms Bitiyeva’s other son), who had spent the night at a separate house in the same courtyard and who had avoided the killers’ attention by hiding behind an armchair.
According to those statements, two UAZ-45 vehicles arrived in the neighbourhood around 3 a.m. They had no registration plates and were equipped with large aerials. Several men entered a neighbour’s house, woke her up, gagged her with adhesive tape and demanded her passport. They then left, having taken the passport with them. It was later found in Ms Bitiyeva’s house. At about 3.30 a.m. a group of 11 persons holding AK-7.62 guns entered Ms Bitiyeva’s house; a few others, armed with grenade-launchers and machine guns, gathered in the street around the house. They were all wearing camouflage recognised as the special forces uniform. Four of them were masked; others were wearing black “special forces helmets”. They spoke Russian. After a few minutes a neighbour and I. heard six or seven shots. The neighbours then saw the cars leave towards the main road to Grozny. I. entered his mother’s house where he found the bodies of his mother, uncle, father and brother, their hands and feet taped together, all shot in the heads. A neighbour added that Mr Bitiyev had been found with a black hood over his head.
Villagers learnt later that morning that two other men had been executed in a similar way, presumably by the same group, and that, according to the service personnel stationed at the roadblocks in the village, they had been a military group with a “special mission” permit.
On 26 May 2003 the NGO Memorial reported the killings, implying that they were in retaliation for Ms Bitiyeva’s active commitment to revealing crimes carried out by the military and her complaint to the Court.
An investigation was started on the same day as the killings. The crime scene was examined by experts and witnesses were questioned. X submitted, however, that no autopsy was ordered and the bodies of her relatives were buried on the same day. During the investigation, Ms Bitiyeva’s daughter requested victim status in November 2003; it was finally granted on 15 December 2005. The perpetrators of the crimes have never been identified.
Following the killings, X complained about harassment. She claimed in particular that, in May 2004, she was stopped for a security check and questioned about illegal possession of arms. Following her complaint about intimidation, an inquiry was carried out. Despite reassurances of being protected from further threats by the investigator, she again felt intimidated due to the nature of his questions, which also concerned her application to the Court. Referring to the generally poor security situation, she stated that any contact with representatives of the law was perceived as a threat.
2. Procedure and composition of the Court
The applications were lodged with the European Court of Human Rights on 25 April 2000 and 21 November 2003, respectively. The Chamber decided to join the proceedings in the applications, and they were declared admissible on 20 October 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot),
Nina Vajić (Croatian),
Anatoli Kovler (Russian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
and also Søren Nielsen, Section Registrar.
Relying on Article 3 and Article 5, Ms Bitiyeva complained about unlawful detention and ill-treatment in 2000. Relying on Articles 2, 3 and 13, Ms Bitiyeva’s daughter alleged that her mother, father, brother and uncle were killed by agents of the State. She further alleged that her mother was killed in retaliation for her application to the European Court of Human Rights and that she herself was intimidated and questioned about the details of her complaint to the Court, in breach of Article 34 (right of individual petition).
Decision of the Court
The Court held unanimously that X, as the first applicant’s heir, had standing to continue the proceedings.
Article 3 as regards Ms Bitiyeva
The Court noted that evidence had attested to a serious deterioration of Ms Bitiyeva’s health during her detention. Her medical condition had clearly been aggravated by the poor detention conditions, as well as the inappropriate level of medical assistance.
The CPT’s findings corroborated Ms Bitiyeva’s claims about the poor conditions and were not disputed by the Government. The latter had also been unable to provide any documents relating to her detention or the medical treatment she had received.
It also observed that, at the relevant time, Chernokozovo’ legal status had not been clearly defined, making it impossible to provide for appropriate monitoring of prisoners’ complaints or adequate medical assistance.
The Court found that the deterioration of Ms Bitiyeva’s health, compounded by the length and poor conditions of her detention as well as the lack of adequate medical care, had entailed a level of suffering which amounted to inhuman and degrading treatment. Accordingly, it held unanimously that there had been a violation of Article 3 concerning the ill-treatment. The Court further held, by six votes to one, that no separate issues arose under Article 3 concerning the investigation into her allegations of ill-treatment.
The parties did not dispute that Ms Bitiyeva had been taken into detention from her home on 25 January 2000 and released on 17 February 2000. Her detention therefore lasted 24 days.
The Court noted that the Government had not provided the prosecutor’s order referring to the Presidential Decree or explained why Ms Bitiyeva had been detained for a period exceeding ten days. Indeed, from the certificate issued on 2 March 2000, it could be deduced that the real reason for her detention was the suspicion of her participation in illegal armed groups. However, no decision to detain or to release her had been given by a competent authority, her detention had not been formally linked to any criminal investigation and no charges had ever been brought against her. In the absence of any procedural safeguards, the Court could only characterise such detention as arbitrary and in total disregard of the requirement of lawfulness.
Furthermore, it appeared that the legal status of the Chernokozovo detention centre had been clarified, at best, only after 8 February 2000. The Court found it inconceivable that, in a State subject to the rule of law, a detention facility could exist with no responsible authority. The Court was struck by the fact that, despite the CPT’s calls for an independent inquiry, no action had taken place to end such a situation of impunity and identify and bring to justice those responsible, provide redress for the victims and to ensure that no such situation would arise in the future.
The Court therefore found that Ms Bitiyeva’s detention was incompatible with fundamental aspects of the rule of law and held that there had been a violation of Article 5.
Article 38 § 1 (a)
The Court observed that, despite its request, the Government had only submitted a small part of the investigation file. In particular, the file did not include any of the witness statements, the forensic and ballistic experts’ reports, the examination of the crime scene or information concerning the alleged participation of the security or military forces. Accordingly, the Court drew inferences from the Government’s conduct and found, unanimously, that they had failed to comply with their obligations under Article 38 § 1 (a) to furnish all necessary facilities to the Court in its task of establishing the facts.
Concerning the killing of X’s relatives
The Court found that the Government had failed to produce key elements of the investigation which could have shed light on the circumstances of the killings and that it was not sufficient to say that the investigation had not provided evidence to support the involvement of the special forces in the killings. In the Court’s opinion, it was for the Government to provide a convincing explanation for the events of 21 May 2003.
On the other hand, the witness statements provided by X confirmed allegations that the killings had been carried out by State servicemen notably due to their descriptions of: the way the killers were dressed; the vehicles they used; the fact that they had been able to travel unhindered during curfew hours (with a “special” permit) and their working methods, characteristic of special operations, such as checking passports, putting a hood over a detainee’s head and the indisputable execution style of the killings.
Finding that it could draw inferences from the Government’s conduct, the Court concluded that the deaths of X’s relatives could be attributed to the State and that there had therefore been a violation of Article 2.
Concerning the investigation into the deaths of X’s relatives
The Court noted that the investigation had immediately taken important steps, such as the examination of the crime scene and questioning of witnesses. It also appeared that information about the special operations carried out in the district and the involvement of military personnel and vehicles had been looked into.
However, it did not appear that the investigation had established such crucial details of the crime as the number of perpetrators, the routes they had taken to enter or leave the village, the type of weapons they had used, the sequence of their actions and, most notably, the motive for the killings. The Court noted with surprise that the investigation, having lasted over two and a half years, had not shown any visible progress at all. Furthermore, X had only been granted victim status at the end of 2005. The only information communicated to the victims had concerned the decisions to adjourn and reopen the investigation.
Accordingly, the Court found that Russia had failed in its obligation to conduct an effective, prompt and thorough investigation into the killing of Ms Bitiyeva and her relatives. There had therefore been a violation of Article 2 under that head.
Article 3 as regards X
The Court did not doubt that the death of X’s family members had caused her profound suffering but it nevertheless found no basis for finding a separate violation of Article 3.
Given that the criminal investigation into the killings had been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies, had consequently been undermined, the Court found that there had been a violation of Article 13 in conjunction with Article 2 of the Convention.
Despite the potentially chilling effect of the brutal and unresolved killings of an applicant and her family members, the Court found no direct evidence to support X’s allegations that they had been related to Ms Bitiyeva’s application to the Court.
As to X’s allegations of intimidation, it appeared that the incident in May 2004 had occurred within the context of a security check and did not raise any separate issues under Article 34. The authorities had investigated the incident and it did not appear that the questions about the Court had been central. It transpired from the applicant’s statements that she had perceived any contact with the law-enforcement bodies as dangerous. That might be understandable but left the authorities without appropriate recourse if they wished to investigate and ensure her protection.
Accordingly, the Court did not have sufficient material to conclude that undue pressure was put on X to dissuade her from pursuing her application to the Court and held unanimously that there had been no breach of Article 34.
Judges Loucaides and Spielmann expressed dissenting opinions, which are annexed to the judgment.