The ECHR case of Elmurzayev and Others v. Russia (application no. 3019/04).

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EUROPEAN COURT OF HUMAN RIGHTS

429

12.6.2008

Press release issued by the Registrar

CHAMBER JUDGMENT
ELMURZAYEV AND OTHERS v. RUSSIA

The European Court of Human Rights has today notified in writing its Chamber judgment in the case of Elmurzayev and Others v. Russia (application no. 3019/04).

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 Apti and Musa Elmurzayev;

· a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Apti and Musa Elmurzayev 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 Apti and Musa Elmurzayev;

· a violation of Article 13 (right to an effective remedy) in conjunction with Article 2.

Under Article 41 (just satisfaction) of the Convention, and in respect of non-pecuniary damage, the Court awarded 5,000 euros EUR to the second and third applicants jointly; EUR 24,000 to the sixth, seventh and eighth applicants jointly; EUR 24,000 to the ninth, tenth and eleventh applicants jointly, and EUR 2,000 to the first, fourth, fifth and twelfth applicants each. The Court awarded the applicants EUR 5,150 for costs and expenses. (The judgment is available only in English.)

1.  Principal facts

The applicants are 12 Russian nationals, Supian Khasanovich Elmurzayev, Zina Elmurzayeva, Khasan Katayevich Elmurzayev, Isa Khasanovich Elmurzayev, Aslanbek Khasanovich Elmurzayev, Zura Ismailovna Elmurzayeva, Beslan Musayevich Elmurzayev, Movsar Musayevich Elmurzayev, Larisa Shekhmirzayevna (Shakhmirzayevna) Mukhtarova, Mariam Aptiyevna Elmurzayeva (Mukhtarova), Magomed Aptiyevich Elmurzayev (Mukhtarov), Ayshat Khasanovna Elmurzayeva, who were born in 1963, 1933, 1933, 1954, 1967, 1964, 1984, 1986, 1978, 1999, 2001 and 1976, respectively, and live in Urus-Martan (Chechnya). They are the parents, spouses, siblings and children of Mr Apti Khasanovich Elmurzayev, who was born in 1969, and Mr Musa Khasanovich Elmurzayev, who born in 1956.

In separate incidents in July 2002 and January 2003 Mr Apti Elmurzayev and Mr Musa Elmurzayev were abducted at gunpoint from their home in the village of Martan-Chu by a group of armed men in uniforms. The abductions took place at around 2 a.m. and in neither case did the armed men produce a warrant or provide any explanation. Both men were blindfolded and had their hands tied with adhesive tape. Their relatives were ordered not to interfere and not to follow. On the first occasion a shot was fired when one of the applicants left the house to see what was happening. Neither of the brothers has been seen since their abduction.

The family members made repeated efforts to establish the two men’s whereabouts, including contacting the military authorities, the prosecutor’s office, the local department of the Federal Security Service (FSB) and local representatives of the Ministry of the Interior of the Chechen Republic. Criminal investigations were opened into both abductions. The investigations were suspended on several occasions and, although some investigative measures were taken, proved unable to identify the perpetrators.

In June 2006 the first applicant filed a complaint with the town court alleging that the investigation had been unreasonably long and had been erroneously suspended. He also complained that he had been denied access to the case-files. The town court’s judgment noted defects in the investigations, including the failure to identify and question federal servicemen on checkpoint duty at the time and to identify and question the heads of local law-enforcement agencies. The first applicant was granted access to the file in the case concerning Apti Elmurzayev, but not allowed to make photocopies. He was not given access to the second file because he did not have victim status in that case. His appeal to the Supreme Court of the Chechen Republic was dismissed.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 9 January 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Christos Rozakis (Greek), President,
Anatoly Kovler (Russian),
Elisabeth Steiner (Austrian),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian),
Giorgio Malinverni (Swiss),
George Nicolaou (Cypriot), judges,

and also Søren Nielsen, Section Registrar.

3.  Summary of the judgment

Complaints

The applicants complained that their relatives had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. They relied on Articles 2, 3, 5 and 13.

Decision of the Court

Assessment of the facts

The Court was satisfied that the applicants had made out a prima facie case that their relatives 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 Apti and Musa Elmurzayev had been apprehended on 9 July 2002 and 27 January 2003 respectively at their homes, by State servicemen during unacknowledged security operations.

There had been no reliable news of Apti and Musa Elmurzayev since the dates of their abductions. Their names had not been found in any official detention facilities’ records. The Government had not submitted any explanation as to what had happened to them after their abduction.

In the context of the conflict in the Chechen Republic, when a person was detained by unidentified servicemen without any subsequent acknowledgement of the detention, this could be regarded as life-threatening. The absence of Apti and Musa Elmurzayev or of any news of them for several years supported that assumption.

Apti and Musa Elmurzayev had therefore to be presumed dead following their unacknowledged detention by State servicemen.

Article 2

Concerning the alleged violation of the right to life of Apti and Musa Elmurzayev

The Court had already found it established that the applicants’ relatives had to be presumed dead following their unacknowledged arrest by State servicemen and that their deaths 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 in respect of Apti and Musa Elmurzayev.

Concerning the alleged inadequacy of the investigation of the kidnapping

The Court noted that the investigation into the first abduction had been suspended and resumed three times and that there had been lengthy periods of inactivity of the district prosecutor’s office when no proceedings were pending. The investigators’ efforts had been even more feeble as regards the search for Musa Elmurzayev, since no proceedings whatsoever were pending in this case between 20 September 2003 and 31 July 2006, that is, for two years, ten months and eleven days.

The effectiveness of both investigations had already been undermined in their early stages by the authorities’ failure to take necessary and urgent investigative measures. These delays were liable to affect the investigation of crimes such as kidnapping in life-threatening circumstances, where crucial action had to be taken in the first days after the event. It appeared that after that a number of essential steps were delayed and were eventually taken only after the communication of the complaint to the respondent Government, or not at all.

In these circumstances the authorities had failed to carry out an effective criminal investigation into the disappearances of Apti and Musa Elmurzayev, in breach of Article 2.

Article 3

The Court noted that the applicants were close relatives of the two disappeared men. For more than five years they had not had any news of Apti and Musa Elmurzayev. During this period the applicants had applied to various official bodies with enquiries about their relatives, both in writing and in person. Despite their requests, the applicants had never received any plausible explanation or information as to what became of the Elmurzayev brothers following their kidnappings. The responses received by the applicants had mostly denied that the State was responsible for the abductions or simply informed them that an investigation was ongoing.

The applicants had consequently suffered, and continued to suffer, distress and anguish as a result of the disappearance of their relatives 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 contrary to Article 3.

Article 5

The Court found that Apti and Musa Elmurzayev 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.

Article 13

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 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.

No separate issues arose under Article 13 in respect of the alleged violations of Articles 3 and 5.