The ECHR cases of Akhmadov and Others v. Russia (application no. 3026/03), Askharova v. Russia (application no. 13566/02), Bersunkayeva v. Russia (application no. 27233/03), Ilyasova and Others v. Russia (application no. 1895/04), Musikhanova and Others v. Russia (application no. 27243/03), Tagirova and Others v. Russia (application no. 20580/04), Gandaloyeva v. Russia (application no. 14800/04), Umayeva v. Russia (application no. 1200/03).

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EUROPEAN COURT OF HUMAN RIGHTS

883

4.12.2008

Press release issued by the Registrar

CHAMBER JUDGMENTS

AKHMADOV and OTHERS v. RUSSIA

ASKHAROVA v. RUSSIA

BERSUNKAYEVA v. RUSSIA

ILYASOVA and OTHERS v. RUSSIA

MUSIKHANOVA and OTHERS v. RUSSIA

TAGIROVA and OTHERS v. RUSSIA

GANDALOYEVA v. RUSSIA

UMAYEVA v. RUSSIA

Akhmadova and Others v. Russia (no. 3026/03)

Askharova v. Russia (no. 13566/02)

Bersunkayeva v. Russia (no. 27233/03)

Ilyasova and Others v. Russia (no. 1895/04)

Musikhanova and Others v. Russia (no. 27243/03)

Tagirova and Others v. Russia (no. 20580/04)

The applicants in the first case are four Russian nationals: Madina Bilalovna Akhmadova, born in 1954; Magomad Musayevich Akhmadov, born in 1979; Kazbek Musayevich Akhmadov, born in 1982; and, Turpal Musayevich Akhmadov born in 1984. They live in Grozny (Chechen Republic). They are the wife and children of Musa Mausurovich Akhmadov who has not been seen since he was detained at a military checkpoint on 6 March 2002.

The applicant in the second case is Larisa Askharova, a Russian national who was born in 1964 and lives in the village, Serzhen-Yurt (Chechen Republic). She has had no news of her husband, Sharani Askharov, born in 1956, since he was taken away from their home on 18 May 2001 by armed men in camouflage uniforms and masks.

The applicant in the third case is Raisa Shamayevna Bersunkayeva, a Russian national who was born in 1954 and lives in Urus-Martan (Chechen Republic). She has had no news of her son, Artur Bersunkayev, born in 1979, since he was taken away from the family home on 13 June 2001 by armed men in camouflage uniforms and masks.

The applicants in the fourth case are four Russian nationals: Mingi Khalidovna Ilyasova, born in 1952; Ayub Abubakarovich Ilyasov, born in 1973; Markha Abubakarovna Ilyasova, born in 1975; and, Maret Abubakarovna Ilyasova, born in 1978. They live in Mesker-Yurt (Chechen Republic). They are the mother, brother and sisters of Adam Abubakarovich Ilyasov, born in 1983, who has not been seen since he was taken away from the family home on 15 November 2002 by armed men wearing masks and uniforms.

The applicants in the fifth case are 11 Russian nationals: Yakhita Ibragimovna Musikhanova, born in 1951; Vakha Idisovich Musikhanov, born in 1949; Luiza Iznorovna Umysheva (Musikhanova), born in 1975; Markha Vakhidovna Musikhanova, born in 1995; Seda Vakhidovna Musikhanova, born in 1997; Nokha Vakhidovich Musikhanov, born in 2001; Naib Vakhidovich Musikhanov, born in 2002; Asiyat Idisovna Musikhanova, born in 1953; Valid Vakhayevich Musikhanov, born in 1980; Roman Vakhayevich Musikhanov; born in 1983; and, Timur Vakhayevich Musikhanov, born in 1986. They live in Urus-Martan (Chechen Republic). They are the parents, wife, children, brothers and aunt of Vakhid Musikhanov, born in 1976, who has not been seen since he was taken away from the family home on 9 November 2002 by armed men wearing camouflage uniforms and masks.

The applicants in the sixth case are seven Russian nationals: Zaynap Zhazhayevna Tagirova, born in 1950; Taus Daudovich Tagirov, born in 1950; Musa Tausovich Tagirov, born in 1982; Zarema Abdullayevna Tagirova, born in 1983; Madina Tausovna Tagirova, born in 1983; Milana Tausovna Tagirova, born in 1981; and, Ratkha Tausovna Tagirova, born in 1972. They live in Urus-Martan (Chechen Republic). They are the parents, wife, brother and sisters of Movsar Tausovich Tagirov, born in 1978, who has not been seen since he was taken away from the family home on 7 February 2003 by armed men wearing camouflage uniforms.

All the applicants alleged that their relatives disappeared after being detained 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).

In the cases of Askharova, Bersunkayeva, Ilyasova and Others and Musikhanova and Others, the Court considered that the applicants had presented a coherent and convincing picture of their relatives’ abduction. The applicants, mostly eyewitnesses to the incidents, and other eyewitnesses including family and/or neighbours, all stated that the abductors had acted in a manner similar to that of a security operation and had spoken Russian without an accent. The servicemen had also, on the whole, used military vehicles which could not have been available to paramilitary groups. In all four cases, the Court found the fact that a large group of armed men in uniform, equipped with armoured vehicles, were able to move freely during curfew hours and apprehend people at their homes strongly supported the applicants’ allegation that the men had been State agents.

The Court found that those elements in particular in the above four cases strongly supported the allegation that the applicants’ relatives had been apprehended by Russian servicemen. Drawing inferences from the Russian Government’s failure to submit documents – despite specific requests from the Court – to which it exclusively had access and the fact that it had not provided any other plausible explanation for the events in question, the Court considered that the applicants’ relatives had been arrested by Russian servicemen during security operations.

In the case of Akhmadova and Others, the Court considered it established, on the basis of the eyewitness statements and official documents (in particular letters from the military prosecution authorities) in the case file, that Musa Akhmadov had been detained by a group of servicemen at a military road block. He had then been handed over to the military servicemen stationed at the regiment headquarters who transferred him to the Federal Security Service based at the same camp.

There had been no reliable news of those five men since their disappearances and the Russian Government had not submitted any further explanations. In the context of the conflict in Chechnya, when a person had been detained by unidentified servicemen without any subsequent acknowledgment of their detention, that situation could be regarded as life-threatening. The absence of the applicants’ relatives or any news of them for more than six or seven years corroborated that assumption. Therefore the Court found that the five men had to be presumed dead following their unacknowledged detention by Russian servicemen. In the cases of Akhmadova and Others, Askharova and Ilyasova and Others, the Court, noting that the authorities had not justified the use of lethal force by their agents, concluded that there had therefore been a violation of Article 2 in respect of all three of the applicants’ relatives. In the cases of Bersunkayeva and Musikhanova and Others, noting the absence of any plausible explanation at all on the part of the Government, the Court therefore found that Russia had been responsible for the death of the applicants’ two relatives and also concluded that there had been a violation of Article 2.

However, in the case of Tagirova and Others, the Court noted that all but one of the witness statements submitted by the applicants had been anonymous. Furthermore, the group of armed men who had abducted the applicants’ relative had been wearing uniforms without recognisable insignia. The abductors had arrived on foot and no military vehicle had allegedly been seen in the vicinity. Indeed, the applicant’s relative, a future officer of the Chechen Republic special task force, could have been, as suggested by the Government, the target of illegal armed groups fighting against federal forces in the Chechen Republic. The Court therefore found that the applicants had not submitted persuasive evidence to support their allegations that Russian servicemen had been implicated in the abduction of their relative. Nor had it therefore been established “beyond reasonable doubt” that Movsar Tagirov had been deprived of his life by State agents and, in such circumstances, the Court found that there had been no violation of Article 2.

In all six cases, the Court further held that there had been violations of Article 2 concerning the Russian authorities’ failure to carry out effective criminal investigations into the circumstances in which the applicants’ relatives had disappeared.

Furthermore, with the exception of the case of Tagirova and Others and eight of the applicants in the case of Musikhanova and Others, the Court found that the applicants 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. However, the Court found that it had not been established exactly how Sharani Askharov and Artur Bersunkayev had died and whether they had been subjected to ill-treatment and therefore held that there had been no violation of Article 3 in respect of the alleged ill-treatment of those two men.

The Court found that the applicants’ relatives in the first five cases 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 also found in the first five cases that there had been a violation of Article 13 as regards the alleged violation of Article 2. In the case of Ilyasova and Others it found a further violation of Article 13 as regards the alleged violation of Article 3. It held, however, that there had been no violation of Article 13 as regards the alleged violation of Article 3 in respect of the applicants’ relatives in the cases of Askharova and Bersunkayeva, and no violation of this provision as regards eight of the applicants in the case of Musikhanova and Others.

Lastly, the Court held unanimously that in the cases of Akhmadova and Others, Askharova, Bersunkayeva and Musikhanova and Others there had been a failure to comply with Article 38 § 1 (a) in that the Government had refused to submit documents requested by the Court.

In the case of Akhmadova and Others, the Court awarded EUR 3,101, jointly, to Musa Akhmadov’s wife and youngest son, in respect of pecuniary damage, EUR 35,000 to the applicants, jointly, in respect of non-pecuniary damage and EUR 8,150 for costs and expenses.

In the case of Askharova, the Court awarded Sharani Askharov’s wife EUR 6,440 in respect of pecuniary damage, EUR 35,000 in respect of non-pecuniary damage and EUR 6,150 for costs and expenses.

In the case of Bersunkayeva, the Court awarded Artur Bersunkayev’s mother EUR 35,000 in respect of non-pecuniary damage and EUR 4,700 for costs and expenses.

In the case of Ilyasova and Others v. Russia, the Court awarded Adam Ilyasov’s mother EUR 4,000 in respect of pecuniary damage, EUR 35,000 to the applicants, jointly, and EUR 6,000 for costs and expenses.

In the case of Musikhanova and Others, the Court awarded EUR 15,000, jointly, to Vakhid Musikhanov’s wife and children in respect of pecuniary damage. In respect of non-pecuniary damage, the Court awarded EUR 15,000, jointly, to his parents, EUR 20,000, jointly, to his wife and four children, and EUR 1,000, each, to his aunt and brothers. For costs and expenses, the applicants were awarded EUR 7,150.

In the case of Tagirova and Others, the Court awarded, in respect of non-pecuniary damage, EUR 3,000, jointly, to Movsar Tagirov’s parents, EUR 3,000 to his wife, and EUR 850, each, to his brother and sisters, and EUR 3,650 for costs and expenses. (The judgments are available only in English.)

Gandaloyeva v. Russia (no. 14800/04)

The applicant is a Russian national, Lyuba Gandaloyeva, who was born in 1942 and lives in Achkhoy-Martin (Chechnya).

The case concerned Ms Gandaloyeva’s allegation that her husband, Alaudin Ayubovich Gandaloyev, born in 1938, was killed by Russian servicemen on 17 September 2003 in woods where he had worked as a forester. His son, Emir Gandaloyev, who had driven him to work that day survived the attack and brought his father’s body to Chechen police officers. The death certificate issued noted that the applicant’s husband had died as a result of gunshot wounds to his head and body. In the days following the incident a radio announcement and newspaper article stated that federal forces had killed two “rebel fighters”, one of whom had been Alaudin Gandaloyev. The applicant also claimed that the authorities’ ensuing investigation into the incident was ineffective. She relied, in particular, on Articles 2 (right to life) and 13 (right to an effective remedy).

The Court noted, in particular, that the applicant’s allegation had been supported by her son’s eyewitness statement and the media coverage of the incident. Indeed, a decision of
Achkhoy-Martan District Court on 24 November 2004 had even considered that the investigation had obtained sufficient information to conclude that military servicemen had been involved in the murder. Furthermore, there had been a discrepancy between the Government’s suggestion that illegal armed groups could have been involved in the murder and the investigators’ conclusions that military servicemen had been implicated in the crime. The Court considered that those elements in particular strongly supported the allegation that Alaudin Gandaloyev had been killed by Russian servicemen. Drawing inferences from the Russian Government’s failure to submit documents – despite specific requests from the Court – to which it exclusively had access and the fact that it had not provided any other plausible explanation for the events in question, the Court found that the applicant’s husband had been killed by Russian servicemen during an unacknowledged security operation. In the absence of any justification by the Government, the Court concluded that there had been a violation of Article 2 on account of the killing of the applicant’s husband.

The Court further found that despite the numerous investigative measures taken by the
inter-district prosecutor’s office, such as examining the crime scene and the body and ordering ballistic expertises as well as questioning Emir Gandaloyev and employees of the forestry agency, after the transfer of the case to the military prosecutor’s office, the ensuing investigation had been far from satisfactory. In particular, the officers who had allegedly opened fire on Alaudin Gandaloyev had never been identified or questioned. The applicant, although granted victim status in the proceedings, had only been informed of the suspension and reopening of the proceedings and not of any significant developments. The Court therefore held unanimously that there had been a further violation of Article 2 concerning the Russian authorities’ failure to conduct an effective investigation into the circumstances surrounding the murder of the applicant’s husband.

The Court further held unanimously that there had been a violation of Article 13 in conjunction with Article 2.

Mrs Gandaloyeva was awarded EUR 35,000 in respect of non-pecuniary damage and EUR 2,650 for costs and expenses. (The judgment is available only in English.)

Umayeva v. Russia (no. 1200/03)

The applicant is a Russian national, Lipatu Makhmudovna Umayeva, who was born in 1959 and lives in Grozny. She has a third-degree disability.

In October 1999 hostilities resumed between Russian forces and Chechen armed groups and Grozny came under heavy aerial and artillery bombardment. The case concerned the applicant’s allegation that on 23 January 2000 she and a group of other civilians, who were tying to leave the fighting through what they had been told was a humanitarian corridor, came under attack; the applicant received several shell and bullet wounds. She continues to suffer from the consequences of those wounds and has difficulty walking. The applicant claimed that she was wounded by the Russian military and that the authorities failed to carry out an effective investigation into the attack. She relied, in particular, on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 13 (right to an effective remedy), 34 (right of individual petition) and 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).

The Court noted in particular the applicant’s insistence that she and other residents of the Staropromyslovskiy district had been informed of a safe exit route from the fighting and had followed it on 23 January 2003, having taken steps to identify themselves as civilians. In her statements to the Court and to the domestic investigation she had consistently claimed that the shelling and shooting had come from the direction of the Russian troops, as well as from helicopters. In support of her allegations she had submitted a sketch map of the scene of the incident, indicating the place where she had been wounded and the direction from which the attack had come, namely a canning factory where Russian troops had been temporarily stationed at the time. She also submitted four witness statements corroborating her allegations. Moreover, the ensuing domestic investigation had accepted the applicant’s submissions and even concluded in August 2002 that she had been wounded while trying to leave Grozny through the humanitarian corridor. Indeed, the Government had not denied that Russian troops had been stationed in the canning factory at that time but suggested that they had not been able to identify which particular military units had been there. The Court therefore accepted that the applicant had been attacked in the circumstances she had described and found it established that she had been wounded as a result of the use of lethal force by State agents. Noting that the authorities had not justified that use of lethal force by their agents, the Court concluded that there had been a violation of Article 2 in respect of the attack on Mrs Umayeva.

The Court further noted that the investigation had not apparently attempted to obtain general information about the operations, commanders and military units involved in the Staropromyslovskiy district on 23 January 2000, or to identify and question those who could have been aware of the circumstances of the attack. Furthermore, the investigation had not contacted Emercom’s field hospital, situated very near to the fighting, where the applicant and other residents had been given first aid, in order to obtain additional information about the incident. Most importantly, no efforts had been made to find out more about the announcement of the “safe passage” for civilians on 23 January 2000 or to identify anyone among the military or civil authorities who had been responsible for civilian safety. Indeed, nothing had been done to explain why the military had not taken into consideration the “safe passage” when planning and executing their mission. The investigation, repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years without tangible results. Lastly, the applicant, granted victim status, has had no access to the case file and has not been properly informed of the investigation’s progress. The Court therefore held unanimously that there had been a further violation of Article 2 concerning the Russian authorities’ failure to conduct an effective investigation into the circumstances of the attack on the applicant.

The Court also held unanimously that there had been a violation of Article 13 in conjunction with Article 2 and that no separate issues arose under Article 3. Finally, it held that there was no need to examine separately the applicant’s complaints under Article 34 and Article 38 § 1 (a).

The Court awarded Mrs Umayeva EUR 4,736 in respect of pecuniary damage, EUR 30,000 in respect of non-pecuniary damage and 1,783 pounds sterling (approximately EUR 2,100) for costs and expenses. (The judgment is available only in English.)