Kaplanova v. Russia
The ECHR case of Kaplanova v. Russia (application no. 7653/02).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
KAPLANOVA v. RUSSIA
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the Convention in respect of the applicant’s son and son-in-law, Isa Kaplanov and Ruslan Sadulayev;
· a violation of Article 2 concerning the failure to carry out an effective investigation into the disappearance of the applicant’s son and son-in-law;
· a violation of Article 5 (right to liberty and security) in respect of the applicant’s son and son-in-law;
· a violation of Article 13 (right to an effective remedy); and,
· a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 2,000 euros (EUR) in respect of pecuniary damage, EUR 70,000 in respect of non-pecuniary damage and EUR 8,600 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Khadizhat Daudovna Kaplanova, is a Russian national who was born in 1930 and lives in Grozny (Chechnya).
The case concerned Ms Kaplanova’s allegation that her son and son-in-law, Isa Kaplanov and Ruslan Sadulayev, born in 1965 and 1962 respectively, were abducted from their family home by Russian servicemen and subsequently killed.
According to eyewitness statements submitted by the applicant, on 12 May 2001 a group of Russian servicemen, armed with machine guns, forcibly entered her home and took away her son, son-in-law and a visiting neighbour, Movsar Musitov, in armoured personnel carriers. The servicemen promised that the three men would be released as soon as their identities had been checked. Mr Musitov, who was released the next day, stated that he, the applicant’s son and son-in-law had spent the night at Staropromyslovskiy District Temporary Department of the Interior of Grozny (“Staropromyslovskiy VOVD”). They were all interrogated concerning an incident in which they had allegedly insulted servicemen at a military checkpoint. Just before Mr Musitov was released on 13 May, the applicant’s son and son-in-law were taken away in a UAZ all-terrain vehicle.
The applicant has had no news of her son or son-in-law since.
In the years that followed, the applicant and other members of her family repeatedly applied to the authorities for assistance, both in person and in writing. The applicant also visited the Staropromyslovskiy VOVD and Khankala military base. She alleged, however, that all her enquiries remained unanswered or received standard replies. She also claimed that, even though she was granted victim status on 30 October 2002, she was denied access to the case file. In May 2004 she lodged a complaint against the investigating authorities, claiming that they had failed to carry out an effective investigation into the disappearance of her son and son-in-law. Her complaint was, however, subsequently dismissed.
The Government submitted that, in July 2001, the investigating authorities had questioned a number of eyewitnesses. It confirmed that the applicant’s son, son-in-law and neighbour had been arrested on 12 May 2001 and taken to the Staropromyslovskiy VOVD but claimed that those arrests had been carried out by “unidentified armed individuals” and that the next day “unidentified individuals” had taken the applicant’s son and son-in-law “in an unknown direction”. Two officers of the Chechen Department of the Federal Security Service, also questioned, admitted that they had arrested the applicant’s son and son-in-law and taken them to the VOVD, but denied taking them away the next day. That denial was, however, contradicted by the Head of the Staropromyslovskiy VOVD who stated that the officers had taken the two men in question away from the VOVD on 13 May 2001.
Despite specific requests from the European Court to submit a complete investigation file, the Russian Government only provided documents concerning adjournments and reopenings of the proceedings and the decision to grant the applicant’s husband victim status. The Government explained that disclosure of other documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the applicant’s file contained personal data on parties to criminal proceedings and information on military operations.
Between 15 July 2004 and 22 December 2006 the investigation was adjourned and resumed eight times, but to date, has failed to identify those responsible for the disappearance of the applicant’s son and son-in-law.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 22 January 2002 and declared admissible on 24 October 2006.
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),
Giorgio Malinverni (Swiss),
George Nicolaou (Cypriot), judges,
and also André Wampach, Deputy Section Registrar.
The applicant alleged, in particular, that her son and son-in-law were abducted and killed by Russian servicemen. She relied on Articles 2 (right to life), 5 (right to liberty and security), 13 (right to an effective remedy) and 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).
Decision of the Court
Article 38 § 1 (a)
The Court noted that, despite repeated requests, the Russian Government had failed to submit a copy of the investigation file opened into the disappearance of the applicant’s son and
son-in-law. It found that, as in previous cases raising similar issues before the Court, the reasons given by the Government for withholding key information were inadequate. The withholding of such information had hampered the Court’s examination of the applicant’s complaints.
Referring to the importance of a Government’s cooperation in Convention proceedings and mindful of the difficulties associated with the establishment of facts in cases of such a nature, in refusing to submit the documents requested, the Russian Government had therefore failed to meet their obligations under Article 38 § 1.
Given that finding, the Court found that no separate issue arose under Article 34.
Concerning the disappearance of Isa Kaplanov and Ruslan Sadulayev
The Court noted that the parties’ submissions contained conflicting information as to who had taken Isa Kaplanov and Ruslan Sadulayev to and from the Staropromyslovskiy VOVD. It was not in dispute, however, that the two men had been taken on 12 May 2001 to the Staropromyslovskiy VOVD, where they had spent the night and that they had not been seen since.
The Court reiterated that inferences could be drawn from the Russian Government’s failure to submit documents to which it had exclusive access. It also recalled that, where it had been established that a person had been detained by the authorities and had not been seen since, it was the Government’s responsibility to prove what had happened to that person in custody and whether they had indeed been released.
However, no records had been provided to prove that the applicant’s son and son-in-law had been detained in any facility. Nor had the Government submitted any plausible explanation as to what had happened to the two men after their detention. In the context of the conflict in the Chechen Republic, when a person was detained by unidentified servicemen without any subsequent acknowledgement of their detention, the situation could be regarded as life-threatening. The absence of the two men or any reliable news of them for over six years corroborated that assumption. Furthermore, the official investigation, dragging on for more than six years, had produced no tangible results.
The Court therefore considered that the two men in question had to be presumed dead following their unacknowledged detention and that the Russian Government was responsible for that situation. Noting that the authorities had not justified the use of lethal force by their agents, it followed that liability for their presumed death was attributable to the Russian Government, in violation of Article 2.
Concerning the alleged inadequacy of the investigation into the disappearances
The Court noted that the investigation into the disappearances had been launched with considerable delay (one month), in a situation where prompt action had been vital. Furthermore, despite the fact that the investigation had established the whereabouts of the applicant’s son and son-in-law after their arrest and had obtained information about the persons who had taken them to and from Staropromyslovskiy VOVD, no meaningful investigative measures had been taken in the following three years. Furthermore, the investigation had been suspended and resumed at least eight times in the subsequent period between July 2004 and December 2006. Therefore, even though relevant information had been obtained at the early stages of the investigation, no real effort had been made by the authorities to identify the people who had been involved in the arrest of the two men or to establish their whereabouts and fate. Finally, the applicant had only been granted victim status in the proceedings more than a year after the investigation had been launched and she had not been informed of its progress.
Consequently, the Court found that the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance and presumed death of the applicant’s son and son-in-law, in further violation of Article 2.
The Court recalled that the applicant’s son and son-in-law had been held from 12 to 13 May 2001 at Staropromyslovskiy VOVD and had not been seen since. Their detention had not been logged in any custody records and there existed no official trace of their subsequent whereabouts or fate. That fact in itself had to be considered a most serious failing, since it enabled those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.
The Court further considered that the authorities should have been more aware of the need for a thorough and prompt investigation of the applicant’s complaints that her son and son-in-law had been detained and taken away in life-threatening circumstances. However, there was no doubt that the authorities had failed to take prompt and effective measures to safeguard the applicant’s son and son-in-law against the risk of disappearance.
The Court therefore concluded that the two men in question had been held in unacknowledged detention without any of the safeguards contained in Article 5. There had therefore been a violation of Article 5.
The applicant should have had available to her effective and practical remedies to be able to identify those responsible for her son and son-in-law’s disappearance and to claim compensation.
In circumstances where, as in the applicant’s case, the criminal investigation into a person’s disappearance and death had been ineffective and the effectiveness of any other remedy that might have existed, had consequently been undermined, the State had failed in its obligations under Article 13 in conjunction with Article 2.
No separate issues arose under Article 13 in conjunction with Article 5.