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ECHR Condemns Russia in Three Cases

Submitted by on Tuesday, 3 May 2011.    994 views No Comment
ECHR Condemns Russia in Three Cases

On May 3, the European Court of Human Rights (ECHR) has condemned Russia in three different cases related with Russian occupied Chechen Republic of Ichkeria. Two of the cases are about killing civilians during Russian air raids, and the other one is about unlawful detention and disapperance of two young brothers in Chechnya.

Here are the press releases:

EUROPEAN COURT OF HUMAN RIGHTS

PRESS RELEASE
no. 389
03.05.2011

Russian authorities failed to account for air raids in Chechnya killing civilians and destroying property

In today’s Chamber judgments in the cases Kerimova and Others v. Russia (application nos. 17170/04, 20792/04, 22448/04, 23360/04, 5681/05 and 5684/05) and Khamzayev and Others v. Russia (application no. 1503/02), which are not final, the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 2 (right to life: obligation to protect) of the European Convention on Human Rights in respect of the deaths of eight people who were close relatives of the applicants in the case Kerimova and Others, and in respect of the failure to protect the lives of 19 applicants in total;

A violation of Article 2 (right to life: obligation to conduct an effective investigation) in respect of the circumstances surrounding the deaths of the applicants’ relatives and of the incidents putting the applicants’ lives at risk;

A violation of Article 8 (right to respect for private and family life and the home) in respect of 19 applicants in total, and a violation of Article 1 of Protocol No. 1 (protection of property) in respect of nine applicants in total.

Both cases concerned Russian military air raids on a town in Chechnya in October 1999, which killed civilians and destroyed residential buildings.

Principal facts

The applicants in the first case are Ms Roza Kerimova and 18 other Russian nationals, who were residents of the town of Urus-Martan (Chechen Republic). The applicants in the second case were three Russian nationals, the first of whom has since died, Mr Abdulla Khamzayev and his daughther Ms Leyla Khamzayeva, who were both laywers practicing in Moscow and owned a house in Urus-Martan at the time of the incidents, and a relative of theirs, Ms Eliza Tovgayeva, who was a resident there.

On 2 October 1999, Russian military planes attacked Urus-Martan, where the Russian authorities had previously launched a counter-terrorism operation. One of the bombs hit the block of flats in which Ms Kerimova lived with her family, killing her brother and husband and wounding her and her three minor children. On 19 October 1999, the town again came under aerial attack by Russian federal forces. The bombing resulted in the deaths of six people and injuries to 16 people, including three of the applicants, and in the destruction or damage of 40 houses, including those inhabited by 18 of the applicants in the case Kerimova and Others and the one inhabited by Ms Tovgayeva in the second case. In December 1999, the town was taken over by Russian federal troops.

Mr Khamzayev complained to various public bodies about the two air attacks, on behalf of Ms Kerimova and other victims, whom he represented as a lawyer, and, as regards the second attack, also on his own behalf. He described the circumstances of the two strikes and its consequences, listing those killed and wounded. Between April 2000 and November 2001, he received a number of similar letters from the headquarters of the Russian Air Force and other military bodies, denying any involvement of their personnel in the alleged attack of 19 October 1999.

In April 2000, the military prosecutor refused to open criminal proceedings in connection with the attack of 19 October 1999, but in July 2000 the prosecutor’s office of the Chechen Republic instituted criminal proceedings. Concrete investigative steps were not taken until more than a month later. The proceedings were suspended on a number of occasions and resumed again after superior prosecutors had noted shortcomings in the investigation; in particular there had been breaches of procedural law in the seizure of ammunition fragments, which were therefore inadmissible as evidence.

By decision of November 2003, the proceedings were terminated as no evidence of a crime in the actions of high-ranking military officers had been found. The decision stated in particular that the air raid of 19 October 1999 had followed a counter-terrorism operation, following to a presidential decree, against Islamic extremists (Wahhabis) occupying Urus-Martan, who had led active military actions against the federal forces.

According to the decision, the local population had been warned via the media and in leaflets of the possible use of aircraft and artillery in case of organised resistance by the illegal armed groups. Mr Khamzayev subsequently attempted to obtain a copy of the decision, but was informed by the military prosecutor that the criminal case file had been classified as secret. Some of the applicants were granted victim status at different times during the proceedings.

Two separate criminal cases were opened in 2000 in connection with the air attack of 2 October 1999, which were suspended and reopened on a number of occasions, and the proceedings appear to be pending. An expert report confirmed that metal fragments found at the scene of the incident at the destroyed house were pieces of an aerial bomb that had exploded. According to the Russian Government’s submissions, the bombing had been conducted by an “unidentified plane” and those responsible had not been established.

In 2000, Mr Khamzayev also brought a civil claim against, in particular, the Russian Government, seeking damages in connection with the allegedly improper handling of his complaints by prosecutors and for his destroyed property. In May 2001, the district court rejected his claim, holding in particular that the public bodies had properly examined his complaints and that his claims regarding compensation for the destroyed property could not be granted, as the armed forces had conducted the military operation in the Chechen Republic by virtue of presidential and governmental decrees that had not been found unlawful. The judgment was upheld by the Moscow City Court in October 2001.

Complaints, procedure and composition of the Court

Relying on Article 2, the applicants in the first case complained of the deaths of their relatives as a result of the aerial attacks and, as did Ms Tovgayeva in the second case, alleged that those attacks had put their own lives at real risk. Ms Tovgayeva and the applicants in the first case also complained that there had been no effective investigation of the attacks. The majority of the applicants in the first case further invoked Article 8 and Article 1 of Protocol No. 1, complaining of the damage to their private houses. Mr Khamzayev and Ms Khamzayeva in the second case also relied on Article 1 of Protocol No. 1, complaining of the destruction of their property, whereas Ms Tovgayeva relied on Article 8, complaining that her right to respect for her home had been infringed as a result of that attack.

The case Kerimova and Others originated in six applications, which were lodged with the European Court of Human Rights in 2004 and 2005. The application Khamzayev and Others was lodged with the Court on 21 November 2001.

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

Nina Vajić (Croatia), President,
Anatoly Kovler (Russia),
Christos Rozakis (Greece),
Peer Lorenzen (Denmark),
Elisabeth Steiner (Austria),
Khanlar Hajiyev (Azerbaijan),
George Nicolaou (Cyprus), Judges,
and also André Wampach, Deputy Section Registrar.

Decision of the Court

Article 2 (alleged failure to protect the right to life)
The Government had acknowledged that the aerial attack of 19 October 1999 had been carried out by Russian federal forces. The Court found it established that the air strike of 2 October 1999 had also been carried out by those forces. It was not convinced by the
Government’s argument that the identity of the planes had remained unknown, as presumably military aircraft were held in the exclusive possession of the Russian Armed Forces. It was thus for the State to account for the use of lethal force on both occasions and to demonstrate that that use of force had been absolutely necessary for the purpose of Article 2.

The Court’s ability to assess the circumstances surrounding the attack of 2 October 1999 was severely hampered by the Government’s failure to submit any documents or information in its regard. While the Government had been more cooperative as regards the second air strike, the Court was still unable to see the full picture of that incident. In particular, the Government had not provided details concerning the planning and control of the strike, partly due to the fact that a number of key documents had been destroyed a few months after the incident, in line with a time-limit set by a relevant order of the Ministry of Defence, which the Court considered inadequate.

While the Court took into account the Government’s argument that Urus-Martan had been occupied by a significant number of armed extremists, which may have left the authorities with no choice other than to carry out air strikes, it was not convinced that the necessary degree of care had been taken, such as to avoid or minimise to the greatest extent possible, the risk of a loss of life. For several years, the military authorities had denied the very fact that the attacks had taken place or that any plans or orders to carry out such a strike on the residential quarter in question had existed, which could not but cast doubt on the argument that the air strikes had been duly organised. It was clear that the authorities had been aware of the presence of civilians in the town at the time, but no steps had been taken to secure their evacuation. The Court was not persuaded that warning the local population via leaflets and the media had been an adequate means to protect them. The Court was further struck, in particular, by the use of high-calibre fragmentation bombs, an indiscriminate weapon, the use of which in a populated area the Court had already found to be irreconcilable with the necessary degree of caution to be expected from a law-enforcement body in a democratic society.

The Court therefore concluded that Russia had failed to protect the right to life of the relevant applicants and their relatives killed by the attacks, in violation of Article 2.

Article 2 (alleged inadequacy of the investigation)
Criminal proceedings in connection with the attack of 19 October 1999 had not been instituted until more than nine months later and those in connection with the attack of 2 October 1999 had not been instituted until more than a year later. In the Court’s opinion, the results of a large-scale attack involving federal aircraft should normally become known to the authorities immediately afterwards, and it fell to the State to ensure that its agents who participated in the attack duly reported on it and that the competent authorities ascertained its results without delay.

As Urus-Martan had been taken over by the Russian federal forces in December 1999, the authorities could and should have become aware of the results of the attacks at that time. The Government had not advanced any explanation as to why the authorities had remained passive, and had initially left without investigation an incident that resulted in multiple deaths and the destruction of property. The considerable delay between the incident and the beginning of the investigation could not but significantly undermine its effectiveness.

Once started, the investigations had been plagued with delays and procedural shortcomings. The applicants had not been given victim status until months or even years after the beginning of the investigation, a step which could have afforded them minimum procedural safeguards. The relevant applicant in the case Kerimova and Others had received scant and conflicting information on the investigation concerning the attack of 2 October 1999. Against that background, the Court rejected the Government’s argument that she could have appealed before a court against the investigators’ actions or omissions. Further, as the applicants or their representative were not furnished with a copy of the decision to terminate the criminal proceedings in respect of the attack of 19 October 1999, they could not have been expected to challenge it before a court.

The Court concluded that the authorities had failed to carry out an effective investigation into the circumstances of the two attacks of October 1999, in which the relevant applicants’ relatives died and their own lives were put at risk. There had therefore been a violation of Article 2 on that account.

Article 8 and Article 1 of Protocol No. 1
The Court further found a violation of Article 8 as regards the rights of 18 of the applicants in the case Kerimova and Others and of the rights of Ms Tovgayeva in the second case on account of the damage to their respective homes. It found a violation of Article 1 of Protocol No. 1 as regards the rights of seven of the applicants in the case Kerimova and Others – the remaining applicants who alleged such a violation not having submitted any evidence of their complaint – and as regards the rights of Mr Khamzayev and Ms Khamzayeva in the second case on account of the damage to their respective property.

In particular, as the Court had already noted in other cases concerning the conflict in the Chechen Republic, it held that the relevant legal provisions on which the Government had relied as regards the lawfulness of the interference with the applicants’ rights did not define with sufficient clarity the scope of State agents’ powers in counter-terrorism operations so as to afford an individual adequate protection against arbitrariness.

Article 41
Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to pay amounts between 4,500 and 35,450 euros (EUR) respectively to 11 of the applicants in the case Kerimova and Others in respect of pecuniary damage, totalling EUR 245,250; and between EUR 10,000 and EUR 120,000 respectively to 18 of the applicants in the case in respect of non-pecuniary damage, totalling EUR 770,000.

The Court held that Russia was to pay EUR 14,000 in respect of pecuniary damage and EUR 12,000 in respect of non-pecuniary damage to Ms Khamzayeva, and EUR 20,000 in respect of non-pecuniary damage to Ms Tovgayeva in the second case.

***

EUROPEAN COURT OF HUMAN RIGHTS

PRESS RELEASE
no. 390
03.05.2011

Detention and disappearance of young Chechen man waiting outside police station
for his brother being held for questioning

In today’s Chamber judgment in the case Shokkarov and Others v. Russia (application no. 41009/04), which is not final, the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 2 (right to life and lack of effective investigation) and Article 5 (right to liberty and security) of the European Convention on Human Rights as concerned the applicants’ relative, Visita Shokkarov;

Violation of Article 3 (inhuman and degrading treatment) of the Convention on account of the applicants’ moral suffering following Visita’s disappearance; and,

No violation of Article 3 as concerned the alleged ill-treatment of Visadi Shokkarov, Visita’s brother, in police custody but violation on account of the authorities’ failure to carry out an effective investigation into that allegation.

Principal facts

The four applicants in this case are Russian nationals who live in Grozny. They are the parents and wives of two brothers, Visadi and Visita Shokkarov, born in 1972 and 1966, respectively.

Visadi, living at the time in the Satsita camp (Ingushetia) for the internally displaced with the rest of the Shokkarov family, was arrested and detained on remand on 6 January 2003 on suspicion of murdering two local administration officials. He died on 2 February 2003 when the Russian security services car in which he was being taken to the scene of the murder to participate in a crime reconstruction fell into a ditch and exploded. His co-accused was also killed; the driver survived. The autopsy concluded that Visadi had died from head and chest trauma, no doubt caused by the car crash, and further noted that the body had burned and charred after death.

The official investigation into his death was discontinued on 18 February 2003 due to lack of evidence. The applicants appealed that decision, submitting that Visadi had confessed to the murders of the local officials under duress and that the circumstances of the car crash in which their relative had died were suspicious. The applicants did not receive a decision on the case of October 2003 as the Satsita camp had been dismantled and the authorities had no forwarding address. The local district courts refused to examine a subsequent appeal due to lack of territorial jurisdiction; the applicants did not appeal that decision.

Visita, waiting along with the rest of the family and neighbours outside the Sunzhenskiy police station where his brother had been taken on the day of his arrest, was asked to accompany some men in civilian clothes into the building. He has not been seen since. The investigation into Visita’s disappearance was officially launched on 9 August 2003. On 19 August, Visita’s wife was granted victim status in the criminal case and a decision was issued stating that her husband had been arrested along with his brother on 6 January 2003 and, first taken to Sunzhenskiy police station then the village of Znamenskoye in the Nadterechniy district (Chechnya), was subsequently released. She was also questioned and stated that, while waiting outside the police station her husband
had been approached by two men who then took him into the building; she tried to follow him but was stopped at the entrance by the deputy head of the station who told her that Visita was being taken for questioning and would shortly be released. On 25 August the Shokkarov brothers’ father was also questioned, confirming his daughterin-law’s testimony, stated in particular that she had been told by a certain police officer, “Magomed”, that Visita would soon be released. Officials were also questioned, including the Nadterechniy security services (who denied ever having detained Visita), an investigator for the Nadterechniy prosecution (who stated that he had requested that Visadi Shokkarov be remanded in custody but could not recall whether one or both brothers had been detained) as well as police officers (who all denied that Visita had ever been brought into the police station). The investigators also requested various lawenforcement agencies to provide information about Visita’s whereabouts, without success. The investigation has been suspended and reopened on numerous occasions and still remains pending.

The applicants have contacted, both in person and in writing, various official bodies, requesting information about the investigation’s progress and their relative’s whereabouts. They allege that they have barely been informed of the investigation’s developments or even given access to the case file. Despite specific requests by the Court, the Government did not provide the full contents of the criminal investigation file into Vista’s disappearance, claiming that public disclosure of documents in an investigation which was still in progress could be detrimental to the proceedings.

The Russian Government denied the applicants’ allegations, submitting that there was no evidence to prove that Visita was dead and that he had no doubt disappeared due to his involvement either in the murders committed by his brother or in illegal armed groups.

Complaints, procedure and composition of the Court

The applicants alleged in particular that the two brothers had been killed by Russian servicemen and that the investigations into their allegations had been inadequate. They also alleged that Visadi had been ill-treated in police custody to make him confess to the murders of the local officials and that no effective investigation had been carried out into that allegation. They further complained that they themselves had been subjected to ill-treatment on account of the profound moral suffering caused to them by Visadi’s death and Visita’s disappearance. They relied in particular on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 5 (right to liberty and security).

The application was lodged with the European Court of Human Rights on 19 November 2004.

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

Nina Vajić (Croatia), President,
Anatoly Kovler (Russia),
Christos Rozakis (Greece),
Peer Lorenzen (Denmark),
Elisabeth Steiner (Austria),
Khanlar Hajiyev (Azerbaijan),
George Nicolaou (Cyprus), Judges,
and also André Wampach, Deputy Section Registrar.

Decision of the Court

Article 2 (Visadi Shokkarov’s right to life and lack of effective investigation into his death)
The applicants, although represented by experienced human-rights lawyers, had not enquired in good time about the outcome of the proceedings concerning Visadi. Nor had they provided the courts with an address where they or their representatives could be contacted. Furthermore, they did not provide a plausible explanation for why they had not pursed their appeals further. The Court therefore rejected this part of their complaint for non-exhaustion of domestic remedies. Given this finding, the Court also rejected the part of the complaint concerning the alleged lack of an effective investigation into the death of Visadi Shokkarov.

Article 2 (Visita Shokkarov’s right to life and lack of effective investigation into his disappearance)
The applicants’ consistent claims about Visita’s detention were corroborated by a number of official documents – not least the decision of 19 August 2003 in which Visita’s wife was granted victim status – explicitly stating that he had been detained by officers of the Sunzhenskiy police station on 6 January 2003. Indeed, the investigators, accepting as fact the version of events as submitted by the applicants, took steps to check whether law-enforcement agencies had been involved in the abduction.

Contrary to the Government’s submission, the Court found that the local authorities had in fact had a good motive to detain Visita, namely that he and his brother were suspected of killing local officials. Further drawing inferences from the Government’s failure to submit documents related to the investigation to which it exclusively had access or to provide any other plausible explanation for Visita’s disappearance, the Court found that he had indeed been arrested by Russian servicemen and had to be presumed dead following his unacknowledged detention. The Court therefore concluded that Russia was liable for the death of Visita Shokkarov, in violation of Article 2.

As concerned the investigation, it had only been launched some four months after the authorities had been informed of the disappearance and was plagued by inexplicable delays in taking essential steps. For example, neither the deputy head of the Sunzhenskiy police station or the police officer “Magomed”, who had both assured the applicants that Visita would shortly be released, had ever been questioned. Nor had any attempt been made to identify and question the applicants’ relatives or neighbours who had gone to the police station with them on 6 January 2003 or employees of the Sunzhenskiy police station, the Nadterechniy prosecuting authorities or security services.

Repeatedly suspended and resumed, the investigation is still pending with the applicants not being kept informed of its progress or even given access to the case file. The Court therefore found that there had been a further violation of Article 2 on account of the Russian authorities’ failure to carry out an effective criminal investigation into the circumstances in which Visita Shokkarov had disappeared.

Article 3 (applicants’ mental suffering)
The applicants, the parents and wives of Visita Shokkarov, had suffered distress and anguish as a result of his disappearance and their inability – despite their repeated enquiries – to find out what had happened to him. The manner in which the applicants’ complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3.

Article 3 (ill-treatment of Visadi Shokkarov and lack of effective investigation into that allegation)
Given the limited evidence available as well as the violent nature of Visadi Shokkarov’s death, it was not possible to conclude beyond reasonable doubt whether he had been ill-treated in police custody before his death or not. The Court therefore held that there had been no violation of Article 3 in respect of Visadi Shokkarov.

However, there had been no investigation into the allegations of any ill-treatment of Visadi by the police, the only investigation having been into his death. The Court therefore held that there had been a violation of Article 3 on that account.

Article 5 (unacknowledged detention)
The Court held that Visita Shokkarov 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.

Article 41 (just satisfaction)
In respect of pecuniary damage, the Court held that Russia was to pay 10,000 euros (EUR) to the brothers’ parents, jointly, and EUR 20,000 to Visita’s wife. In respect of non-pecuniary damage, the brothers’ parents were to be paid EUR 30,000, jointly, Visita’s wife EUR 48,000 and Visadi’s wife EUR 26,000. EUR 5,500 was awarded for costs and expenses.

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