The ECHR cases of Mutsolgova and Others v. Russia (no. 2952/06).

.

.

…

…

EUROPEAN COURT OF HUMAN RIGHTS

276

01.04.2010

Press release issued by the Registrar

Chamber judgment against Russia concerning a disappearance in Ingushetia

The European Court of Human Rights has today notified in writing a Chamber judgment concerning Russia, which is not yet final¹. The applicants alleged that their relative – son, brother, husband and father respectively – disappeared after being abducted by Russian servicemen and that the domestic authorities failed to carry out an effective investigation into their allegations. They relied in particular on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the European Convention on Human Rights.

Mutsolgova and Others v. Russia (no 2952/06)

The applicants are five Russian nationals who live in Karabulak, Ingushetia Republic. They are the parents, brother, wife and daughter of Mr Bashir Mutsolgov, who was born in 1975. Bashir has not been seen since the afternoon of 18 December 2003 when he was abducted from a street close to his home by a group of men armed with assault rifles who spoke, according to the applicants, unaccented Russian. The men arrived in two vehicles, wore masks and camouflage uniforms. Using force, they put Bashir Mutsolgov in one of the cars and drove away in the direction of the Karabulak department of the Interior. The applicants did not eyewitness Bashir’s abduction and the account of events they presented was based on the witness statements collected by them after Bashir’s disappearance and which they provided to the Court.

In particular, immediately after the abduction, one of the witnesses drove ahead of the vehicles implicated in the abduction and informed an on-duty police officer of the incident and of the two cars. The police officer stopped the cars only to let them all drive away, apparently because he was shown a special permit prohibiting any search of the permit owner and his vehicle.

According to the applicants, they complained about the abduction to a number of local law enforcement agencies. The authorities denied having arrested Bashir Mutsolgov. In the days and months following the abduction, however, the applicants were approached several times by people presenting themselves as FSB officers who offered information about Bashir’s whereabouts in exchange for money. The applicants paid each time between 300 and 3,000 US Dollars and were told that Bashir was abducted by a group of officers from the regional FSB departments in the North Caucasus. The applicants were also told that Bashir had been locked in a basement in the Khankala settlement (the main base of the Russian military forces in Chechnya) and had been tortured in order to confess to an unspecified crime he had not committed.

In their search for Bashir Mutsolgov the applicants also contacted, both in person and in writing, various official bodies, such as the Russian President, the Deputies of the Russian State Duma, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Republic of Ingushetia, the administration of the Republic of Ingushetia and departments of the interior and prosecutors’ offices at different levels, describing in detail the circumstances of Bashir’s abduction and asking for help in establishing his whereabouts.

On 19 December 2003 an investigation was opened into the events. The Government submitted that they had taken the necessary investigative steps. Numerous queries had been sent to various State bodies; all witnesses who could have known anything about the abduction had been interviewed. The investigation was suspended and resumed on several occasions; it has so far failed to establish Bashir’s whereabouts or the identity of the perpetrators of his kidnapping.

In March 2005, the brother of Bashir Mutsolgov complained before the domestic courts that the investigation was ineffective. His complaint was dismissed as unfounded the courts having found that the investigating authorities had taken all necessary measures to find the missing man and those who abducted him.

Despite specific requests by the Court for a copy of the investigation file, the Government did not produce any documents from the criminal case opened into Bashir’s disappearance. It referred to the incompatibility of such an act with the Russian criminal procedural legislation.

Violation of Article 2 (right to life) in respect of Bashir Mutsolgov

Violation of Article 2 for failure to conduct an effective investigation into the circumstances of Bashir’s disappearance

Violation of Article 3 (inhuman and degrading treatment) on account of the applicants’ mental suffering caused by Bashir’s disappearance, save for his daughter who was only three months old at the time

No violation of Article 3 in respect of the allegations that Bashir was tortured

Violation of Article 5 (unacknowledged detention) in respect of Bashir Mutsolgov

Violation of Article 13 (lack of an effective remedy) in conjunction with Article 2

The Court held that Russia was to pay 4.000 euros (EUR) to Bashir’s mother and father jointly and EUR 6.000 to Bashir’s wife and daughter jointly in respect of pecuniary damage. In addition, EUR 20,000 was to be paid to Bashir’s mother and father jointly, EUR 5,000 to Bashir’s brother and EUR 35,000 to Bashir’s wife and daughter jointly in respect of non-pecuniary damage, as well ass EUR 2,001.89 for costs and expenses.

*********

Additional information concerning the Court’s findings in these cases

The Court noted that despite its request for a copy of the investigation file into the abduction and disappearance of Bashir Mutsolgov, the Government had produced no documents from the case file. The Court observed that in previous cases it had already found that explanation insufficient to justify the withholding of key information requested by it. Having also drawn inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide a plausible explanation for the abduction in question, the Court was satisfied that the applicants had made a prima facie case that Bashir had been abducted by State agents during an unacknowledged security operation. Since there had been no news of him as from the day he was abducted more than six years ago, and given that his name had not been found in the official records of any detention facility, Bashir Mutsolgov had to be presumed dead. In view of the fact that the Government had failed to provide any explanation about his disappearance, the responsibility for his presumed death lied with the Government. Accordingly, there had been a violation of Article 2 in respect of the disappeared man.

The Court further held that the authorities had failed to carry out an effective investigation into the circumstances in which Bashir had disappeared. In particular, it had taken the prosecutor seven days after the abduction to open the investigation despite the applicants having notified the authorities of it immediately. Crucial investigative steps, such as examining the crime scene and questioning eye-witnesses, had also been omitted, especially at the initial crucial stage. No confrontation had been organised between the FSB officer who had allegedly shown his permit from the car to the police officer on duty at the day of the abduction and the police officer himself. The applicants had not been notified about the progress in the investigation beyond the most general information about its suspension or reopening. Last but not least, the investigation had been pending for over six years and plagued by periods of inactivity; it had not produced any results. The Court found particularly striking that the authorities had simply chosen to disregard a substantial body of evidence which had been available to them. Accordingly, there had been a violation of Article 2 as a result of the failure to carry out an effective investigation.

The Court also found that the applicants, with the exception of Bashir’s daughter who had been only three-months old at the time he disappeared, had suffered and continued to suffer distress and anguish as a result of his disappearance and their inability to find out what had happened to him. 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.

As regards the applicants’ complaint that Bashir had been tortured, the Court found that no conclusive evidence had been presented before it allowing it to conclude that he had been ill-treated. Consequently, there had not been a violation of Article 3 in respect of Bashir.

The Court found that Bashir Mutsolgov had been abducted by State agents on 18 December 2003 and had not been seen since. His detention had not been acknowledged, had not been registered in any custody records and there existed no official trace of his whereabouts or fate. This fact in itself had to be considered a most serious failing, since it enabled those responsible for to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Accordingly, Bashir 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.

The Court finally held that as the criminal investigation into Bashir’s disappearance had been ineffective and the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, had consequently been undermined, the State had failed in its obligation under Article 13 of the Convention. Consequently there had been a violation of Article 13 in conjunction with Article 2.