ECHR Fines Russia 186 Thousand Euros
On June 21, the European Court of Human Rights (ECHR) notified three judgement cases which are related to Russian occupied Chechen Republic of Ichkeria. The cases are about the disappearance of two Chechen men and one injured civilian.
Here are the press releases:
EUROPEAN COURT OF HUMAN RIGHTS
ECHR 058 (2011)
Two men abducted in Chechnya, from a neighbours’ home and from a military check point, and then disappeared
In today’s Chamber judgments in the cases Giriyeva and Others v. Russia (application no. 17879/08) and Makharbiyeva and Others v. Russia (no. 26595/08) which are not final, the European Court of Human Rights held, unanimously, that there had been a:
Violation of Article 2 (right to life) of the European Convention on Human Rights concerning the disappearance of Isa Aygumov and Adam Makharbiyev;
Violation of Article 2 of the Convention concerning the inadequate investigations into their disappearances;
Violation of Article 3 (prohibition of inhuman or degrading treatment) concerning the mental suffering of Isa Aygumov’s mother, brother and sister and of Adam Makharbiyev’s parents and wife but no violation of Article 3 as concerned Adam Makharbiyev’s children, only two or not born at the time of their father’s disappearance;
Violation of Article 5 (right to liberty and security) concerning the unacknowledged detention of Isa Aygumov and Adam Makharbiyev; and,
Violation of Article 13 (right to an effective remedy) in conjunction with Article 2.
Both cases concerned the applicants’ allegations that their relatives had been abducted and killed by Russian servicemen during unacknowledged security operations in Chechnya and that the domestic authorities had failed to carry out effective investigations into their allegations.
Giriyeva and Others
The applicants in the first case, Zara Giriyeva, Musost Aygumov and Zarema Aygumova, are Russian nationals who were born in 1957, 1982 and 1991 respectively. They live in Grozny and Avtury (Chechen Republic). They are the mother, brother and sister of Isa Aygumov, born in 1977, who has not been seen since 9 January 2002 when armed men in camouflage uniforms broke into the family home in Avtury while Isa, his brother and a number of neigbours were chopping up firewood in the courtyard. Isa, scared, ran to his neigbours’ house and hid. Four of the abductors pursued him there, and, finding him in one of the rooms, tied his hands behind his back and took him away in a UAZ vehicle. The abduction was witnessed by Isa’s sister, who had been shut by the abductors inside the family home along with other women relatives, as well as by his brother and neigbours who had been made to lie down in the snow where they had been chopping firewood.
Makharbiyeva and Others
The applicants in the second case, Zura Makjarbiyeva, Khamid Makharbiyev, Olga Grigoryeva, Movsar Makharbiyev and Malika Makharbiyeva, are Russian nationals who were born in 1951, 1943, 1980, 1999 and 2001 respectively. They live in Grozny and Gekhi. They are the parents, wife and children of Adam Makharbiyev, born in 1973.
Adam was stopped at a military checkpoint on 24 March 2001 when returning to Gekhi with two of his cousins; the three men were all arrested and taken for questioning at the Russian military command in Urus-Martan. His cousins were released soon afterwards; the applicants were told by the military commander that Adam had been detained in Urus-Martan but had stolen a pistol and escaped. They have had no news of him since.
In both cases, the Government argued that both men had been kidnapped by unidentified armed men, who could easily have purchased military uniforms and vehicles; and that there was no convincing evidence that the applicants’ relatives were in fact dead.
Decision of the Court
Article 2 (right to life)
The Court considered that the applicants in both cases had presented a consistent account of their relatives’ abduction, corroborated by witness statements.
The fact that, in the case of Giriyeva and Others, a large group of armed men in uniform had been able to move freely in broad daylight with military vehicles through an area under the formal control of the federal forces and secured by check-points, such as was the case in the village of Avtury at that time, and had apprehended the applicants’ relative, had strongly supported their allegation that those men had been Russian servicemen.
In the case of Makharbiyeva and Others there has been no reliable news of him since his detention at the checkpoint. His name has not been found in any official detention facility record and the Government has not submitted any explanation as to what happened to him after his arrest. The Court reiterated that the detention of a person, in the context of the conflict in the Chechen Republic, by unidentified servicemen without any subsequent acknowledgment of the detention, could be regarded as life-threatening. The absence of Adam Makharbiyev or of any news of him for more than nine years supported that assumption.
In both cases, the Court therefore concluded that the applicants’ relatives had to be presumed dead following their unacknowledged detention by Russian servicemen. In the case of Giriyeva and Others it further drew inferences from the Government’s failure to submit documents in its exclusive possession, despite specific requests from the Court, or to provide any other plausible explanation for Isa Aygumov’s disappearance. The Court therefore concluded that there had been a violation of Article 2 regarding each of the abducted men.
In both cases the Court found further violations of Article 2 on account of the authorities’ failure to conduct effective criminal investigations into the disappearance of the applicant’s relatives.
Despite the limited information available to the Court in the case of Giriyeva and Others:
– the Government having failed to submit most of the documents from the investigation
– it was nonetheless apparent that numerous essential steps had not been taken.
For example, the investigators had not identified the owners of the UAZ vehicles used by the abductors or questioned the applicants’ relatives or neighbours who had witnessed the abduction. Similarly, in Makharbiyeva and Others no steps had been taken to identify the servicemen who had been manning the checkpoint on the day of Adam Makharbiyev’s abduction or even question the military commander about his alleged escape.
Those most basic investigative measures should have been taken immediately if they were to produce any meaningful results. However, in both cases the investigations had only been launched more than 20 days after the abductions. The Court stressed that with respect to abductions in life-threatening circumstances a delay of several days was by itself liable to undermine the effectiveness of any investigation.
Finally, the Court noted that the investigation was repeatedly suspended and resumed and undermined by lengthy periods of inactivity on the part of prosecutor’s office.
Article 3 (applicants’ mental suffering)
The Court found that all the applicants – except Adam Makharbiyev’s children – had suffered and continued to suffer distress and anguish as a result of the disappearances and their inability, despite their repeated inquires, to find out what had happened to their relatives. The manner in which those applicants’ complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3. However, the Court held that there had been no violation of Article 3 as concerned Adam Makharbiyev’s children, only two or not even born at the time of their father’s disappearance, as the Court made a distinction between the distress of being raised without a father and the mental anguish experienced by the other older applicants on account of their relatives’ disappearance and the authorities’ attitude to it.
Article 5 (unacknowledged detention)
The Court held that in both cases the applicants’ relatives had been held in unacknowledged detention without any of the safeguards contained in Article 5, which represented a particularly grave violation of the right to liberty and security.
The criminal investigations into the disappearance and killing of the applicants’ relatives had been ineffective, and the effectiveness of any other remedy that might have existed had consequently been undermined. The State had therefore failed in its obligation under Article 13 of the Convention. As a result, there had been a violation of Article 13 in conjunction with Article 2 in both cases.
Article 41 (just satisfaction)
The Court held that:
In the case of Giriyeva and Others, Russia was to pay in respect of pecuniary damage 12,000 euros (EUR) to Isa Aygumov’s mother and in respect of non-pecuniary damage EUR 60,000, jointly, to all three applicants. EUR 5,500 was awarded for costs and expenses; and that,
In the case of Makharbiyeva and Others, Russia was to pay in respect of pecuniary damage EUR 7,000, jointly, to Adam Makharbiyev’s parents and EUR 10,000 to his wife and children; and, in respect of non-pecuniary damage EUR 60,000, jointly, to all five applicants. EUR 4,500 was awarded for costs and expenses.
EUROPEAN COURT OF HUMAN RIGHTS
ECHR 061 (2011)
Russia cannot be made responsible for young man’s injury in armed clashes in Chechnya, but failed to investigate alleged crime effectively
In today’s Chamber judgment in the case Nakayev v. Russia (application no. 29846/05), which is not final, the European Court of Human Rights held, unanimously, that there had been:
A violation of Article 2 (right to life) of the European Convention on Human Rights in respect of the failure to conduct an effective investigation and no violation of Article 2 in respect of the attack on the applicant.
The case concerned the applicant’s serious wounding in 1999 during the armed clashes in Chechnya.
The applicant, Ibragim Nakayev, is a Russian national who was born in 1979 and lives in Urus-Martan (the Chechen Republic). In December 1999, he was wounded to the head during an attack on the area around the village in Chechnya where he was staying with a relative. According to Mr Nakayev’s submissions, Russian federal forces subjected the area to indiscriminated shelling during which his relative’s yard was hit by a projectile, splinters from which wounded him. He also submitted that parts of the projectile remained in the yard. Following the attack, he was hospitalised for more than two weeks and subsequently had to undergo further treatment.
As a result of the wounding, he was no longer able to work and has been diagnosed with a second-degree disability. In May 2003, Mr Nakayev’s mother informed the district prosecutor’s office of her son’s injury, alleging that the shelling had been carried out by federal servicemen, and in August she complained to the district police department requesting a criminal investigation. In September 2003, the police department refused to open criminal proceedings in connection with Mr Nakayev’s wounding, stating that it was impossible to establish which party to the armed conflict had launched the projectile which had hit him. In 2004, Mr Nakayev brought proceedings against the Ministry of Finance, claiming damages. His claims were rejected in a judgment upheld by the Chechnya Supreme Court in December 2004.
In January 2005, Mr Nakayev asked the town court to set aside the decision not to open criminal proceedings, and in February the court allowed his complaint, stating that the police had failed to carry out basic investigative measures. Despite the court’s order for a new set of proceedings, it was only in April 2008, after Mr Nakayev had repeatedly enquired about the case, that further investigative steps were taken. In particular, witnesses were questioned and Mr Nakayev was examined by forensic medical experts, who concluded that his wound, with damage to the brain, could have been caused by a shell splinter. The investigation was adjourned in July 2008 for failure to identify the perpetrators; it was subsequently resumed and is still pending.
Complaints, procedure and composition of the Court
Relying on Article 2, Mr Nakayev complained that the attack in which he had been wounded constituted a violation of his right to life and that no effective investigation was carried out into it.
The application was lodged with the European Court of Human Rights on 27 June 2005. Judgment was given by a Chamber of seven, composed as follows:
Nina Vajić (Croatia), President,
Anatoly Kovler (Russia),
Peer Lorenzen (Denmark),
Elisabeth Steiner (Austria),
Khanlar Hajiyev (Azerbaijan),
George Nicolaou (Cyprus),
Mirjana Lazarova Trajkovska (“the Former Yugoslav Republic of Macedonia”), Judges,
and also Søren Nielsen, Section Registrar.
Decision of the Court
The Court considered that Mr Nakayev’s injuries, resulting in a permanent serious disability, were sufficient to bring his complaint within the ambit of Article 2. The authorities had thus been required to conduct an investigation into the potentially lethal attack against him.
The Court was unable to conclude, however, that they had been made aware of the alleged crime shortly after the attack. Given that the region of Chechnya where Mr Nakayev lived at the time was then the scene of a violent confrontation between the federal armed forces and rebel fighters, it appeared reasonable that if he considered that a crime had been committed, he should have informed the law-enforcement authorities at around the time when he was treated in hospital. Although it should have been apparent to Mr Nakayev that the authorities remained passive after the attack, it was not until 2003 that he lodged a complaint.
Once a domestic court had allowed his appeal against the decision not to open an investigation and had ordered a new set of proceedings, there had been another delay of more than three years until further investigative steps were taken. The Court considered that at least some of the eventual problems of the investigation resulted from Mr Nakayev’s failure to raise his complaint in due time. While his medical treatment and factors such as feelings of insecurity and vulnerability might have accounted for part of the time in question, they fell short of explaining why allegations of such a serious crime reached the prosecutor with a delay of three and a half years.
However, the authorities had not directly cited the passage of time as the reason for their subsequent inactivity, nor was Mr Nakayev reproached for it in the proceedings. Furthermore, the delays which occurred after May 2003 in taking the most important steps were not attributable to him. In particular, it remained unexplained why the court order to resume the investigation had not been complied with for more than three years.
Although according to Mr Nakayev parts of the projectile which had hit the village were still present at the time of his complaint, no steps had been taken – judging from the documents submitted by the Government – to collect and examine those parts, which was to be regarded as a major failure of the investigation. In view of these failures, the Court further dismissed the Government’s objection that Mr Nakayev had not exhausted the domestic remedies available to him within the context of the criminal investigation.
There had accordingly been a violation of Article 2 in respect of the authorities’ failure to carry out an effective investigation into the circumstances of Mr Nakayev’s injuries.
As regards the alleged failure to protect his right to life, the Court reiterated that, according to its case-law, the State bore the burden of providing a plausible explanation for injuries and deaths occurring where individuals were found injured or dead in areas under the exclusive control of the authorities and there was prima facie evidence that State agents could be involved.
However, Mr Nakayev’s contention that the attack in December 1999 had been perpetrated by the State was for the first time raised in March 2003. While the Government acknowledged that he had received splinter wounds, it denied that the State was responsible for them, as it had been impossible to establish the perpetrators of the injuries. The investigation had been unable to come up with any definitive answers explaining the origins of the explosion. Having regard to the fact that Mr Nakayev significantly contributed to the delay in the investigation, the Court did not find that he had made an arguable claim of the State’s responsibility for the attack. In such circumstances, the burden of proof could not be shifted to the Government. Nor was the evidence submitted by the parties sufficient to establish beyond reasonable doubt the responsibility of the State.
There had accordingly been no violation of Article 2 in respect of in respect of the authorities’ failure to protect Mr Nakayev’s right to life.
Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to pay Mr Nakayev 24,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,150 in respect of costs and expenses.