The ECHR cases of Ismailov and Others – Ustarkhanov v. Russia (application no. 33947/05 and 35744/05).

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EUROPEAN COURT OF HUMAN RIGHTS

887

26.11.2009

Press release issued by the Registrar

Two Chamber judgments in respect of Russia

Ismailov and Others v. Russia (no. 33947/05)

Ustarkhanova v. Russia (no. 35744/05)

DISAPPEARANCES IN CHECHNYA

In both cases:

Violations of Article 2 (right to life of Aslambek Ismailov, Aslan Ismailov, Khizir Ismailov, Yusi Daydayev, Yaragi Ismailov and Balavdi Ustarkhanov, and lack of an effective investigation into their disappearances),

Violation of Article 3 (inhuman treatment on account of the applicants’ psychological suffering),

Violation of Article 5 (unacknowledged detention) and

Violation of Article 13 (right to an effective remedy)

of the European Convention on Human Rights

Principal facts

The applicants in the first case are four families of Russian nationals who live in Achkhoy-Martan, Chechnya. All four applicant families are related to each other. They are also the relatives of: Aslambek Ismailov, born in 1979; Aslan Ismailov, born in 1981; Khizir Ismailov, born in 1962; Yusi Daydayev, born in 1953; Yaragi Ismailov, born in 1956. The five men have not been seen since the early morning of 13-14 January 2003, when armed men in camouflage uniforms broke into the applicants’ houses and took them away. At the material time the town of Achkhoy-Martan was under the full control of the Russian federal forces. Checkpoints manned by Russian servicemen were located on the roads leading to and from the settlement. The applicants alleged that their relatives were abducted by Russian servicemen and were taken away to an area where Russian troops had been stationed at the time. Immediately after the abduction the applicants called the district department of the interior where they were told that there was nothing that could be done about it. Since the morning of 14 January 2003, the applicants repeatedly complained to a number of State authorities, including the prosecution service, the Federal Security Service and the military commander’s office. Mostly their complaints have remained unanswered or purely formal replies have been given to them. An investigation was opened on 17 January 2003 into the abduction of the five men, yet it was forwarded numerous times to different prosecutors’ offices and suspended repeatedly for failure to establish the identity of the perpetrators.

The applicant in the second case was born in 1955 and lives in Achkhoy-Martan, Chechnya. She is the mother of Balavdi Ustarkhanov, who was born in 1982. Balavdi has not been seen since the night of 6 to 7 January 2003 when he was taken away by a large group of armed men in camouflage uniforms from the house of a friend with whom he was staying for a few nights. The applicant submitted that some of those men were wearing masks and those who were not were of Slavic appearance; they spoke unaccented Russian, were equipped with portable radio sets, and the residents of the household thought that they were Russian military servicemen. Balavdi Ustarkhanov was put in one of the military vehicles parked next to the house and then apparently driven away in the direction of the local checkpoint, manned by the Russian military forces. In support of her statement, the applicant submitted witness accounts. A number of other witnesses to the abduction, the applicant advanced, refused to provide statements to the Court out of fear for their safety and that of their relatives. The applicant complained about her son’s abduction to the police and prosecution services as soon as she was informed about it on the morning of 7 January 2003. On 21 January an investigation was opened into Balavdi Ustarkhanov’s abduction and two days later the applicant was granted victim status. The investigation was suspended many times for failure to establish the identities of the perpertrators.

The Government did not challenge most of the facts as presented by the applicants in both cases. As regards the first case, they further submitted that although the investigation has failed to establish the whereabouts of the missing men, it was still in progress and all operational and search measures were being taken to solve the crime.

Despite specific requests by the Court in both cases, the Government submitted only 22 documents from the investigation file in the first case, and did not disclose any documents from the file in the second case. They stated that as the investigations were in progress, disclosure of the documents in the files would be incompatible with domestic legislation.

Complaints and procedure

The two cases concerned the applicants’ allegations that their close relatives had been deprived of their lives in Chechnya after having been detained by Russian servicemen. All the applicants further complained that the domestic authorities had failed to carry out an effective investigation into their allegations. They all relied on Articles 2, 3, 5, 8, 13, and the applicants in the first case, on Article 14.

Decision of the Court

In both cases, the Court considered that the applicants had presented a coherent and convincing picture of their relatives’ abductions, corroborated by witness statements collected by the applicants and the investigations. In particular, the Court noted the fact that large groups of men had moved freely around, crossed check points and military roadblocks during curfew hours. Having examined the documents submitted to it, and having drawn inferences from the Government’s failure to submit the documents which had been in their exclusive possession or to provide any plausible explanation about the events in question, the Court concluded in both cases that the six men had been abducted by State servicemen and that they had to be presumed dead following their unacknowledged detention during unacknowledged security operations.

Noting in both cases that the authorities had not provided any justification or otherwise accounted for the deaths of the six men, the Court concluded unanimously that there had been violations of Article 2 in respect of all of the applicants’ relatives.

In both cases, the Court further held unanimously that there had been violations of Article 2 relating to the authorities’ failure to carry out effective investigations into the circumstances in which the applicants’ relatives had disappeared.

The Court also found unanimously that all the applicants, save for the youngest applicant in the first case who was born more than four months after her father had disappeared, had 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, in violation of Article 3.

In addition, the Court held unanimously in both cases that the applicants’ relatives had been held in unacknowledged detention without any of the safeguards contained in Article 5, which constituted a particularly grave violation of the right to liberty and security enshrined in that article.

Furthermore, the Court concluded unanimously that no separate issues arose under Article 8, and that there had been a violation of Article 13 in conjunction with Article 2 in both cases given that the criminal investigations had been ineffective and the effectiveness of any other remedy that may have existed had consequently been undermined.

The Court found unanimously that the applicants’ complaint under Article 14 had not been substantiated as no evidence had been submitted to it suggesting that the applicants had been treated differently from persons in an analogous situation without objective and reasonable justification, or that they had ever raised this complaint before the domestic authorities.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants sums ranging between of 1,500 euros (EUR) and EUR 13,000 in respect of pecuniary damage, between EUR 35,000 and EUR 70,000 in respect of non-pecuniary damage, and EUR 5,500 for costs and expenses.