The ECHR cases of Basayeva and others (application nos. 15441/05 and no. 20731/04); Khumaydov and Khumaydov v. Russia (no. 13862/05); Nenkayev and others v. Russia (no. 13737/03).

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EUROPEAN COURT OF HUMAN RIGHTS

423

28.5.2009

Press release issued by the Registrar

Three Chamber judgments against Russia concerning disappearances and deaths in Chechnya

The European Court of Human Rights has today notified in writing the following three Chamber judgments concerning Russia, none of which is final. The applicants allege in particular that their relatives disappeared after being unlawfully detained by Russian servicemen and that the domestic authorities failed to carry out an effective investigation into their allegations. One of the applicants, Isa Nenkayev, also complains about his unlawful detention and lack of compensation on that account. They rely 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.

1. Basayeva and Others v. Russia (application nos. 15441/05 and no. 20731/04)

The applicants are 11 Russian nationals who all live in the village of Martan-Chu in the Urus-Martan district of the Chechen Republic. They are family members of Lecha Basayev (born in 1965) and of Lema Dikayev (also born in 1965).

Lecha Basayev and Lema Dikayev were abducted by a group of armed men in camouflage uniforms in the early hours of 6 July 2002 and have not been seen since. According to an applicant, Lecha Basayev was gagged, his eyes covered with adhesive tape and his hands tied behind his back, and taken by the uniformed men to the village centre. According to witness statements made by members of his family, he was beaten before being taken away in an armoured vehicle, his hands tied behind his back and adhesive tape over his mouth.

Allegedly the two men were subsequently seen on the premises of the Urus-Martan district department of the interior (ROVD) by one of its employees. The applicants contacted various state authorities in early July complaining about the disappearance of their relatives. An investigation was opened into the two abductions and was subsequently suspended and resumed several times over a period of more than six years, because the perpetrators could not be identified. The military authorities denied having any information concerning a special operation conducted that night in the village of Martan-Chu or having detained the two men. Those of the applicants who were granted victim status in October 2002 alleged that the investigation into the abductions had been ineffective. The investigation is apparently still in progress. Despite an express request from the Court, the Government disclosed only a small portion of the documents in the investigation file, referring to the incompatibility of such disclosure with domestic legislation.

Violations of Article 2 (right to life in respect of Lecha Basayev and Lema Dikayev, and lack of effective investigation into their disappearance)

Violations of Article 3 (inhuman treatment in respect of Lema Dikayev during his abduction)

Violations of Article 3 (inhuman treatment in respect of the mental suffering of the applicants)

Violation of Article 5 (unacknowledged detention of Lecha Basayev and Lema Dikayev)

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

The Court awarded the applicants sums ranging from EUR 900 to EUR 35,000 in respect of pecuniary and non-pecuniary damage and EUR 12,000 for costs and expenses.

2. Khumaydov and Khumaydov v. Russia (no. 13862/05)

The applicants in the second case are two Russian nationals who live in the Chervlennaya village in the Chechen Republic. They are the husband and son of Khava Magomadova, born in 1956, who disappeared on her way to work on the morning of 16 December 2002 and has not been seen since. The applicants submitted that their neighbours, as well as a colleague of Ms Magomadova walking behind her towards the railway station that morning, had seen a white Gazel vehicle around her house, which had later followed her on her way to work. Ms Magomadova had then turned into a road and gone out of sight; the Gazel vehicle could be seen swaying slightly; there was no sign of Ms Magomadova. The authorities submitted that they had no knowledge of the circumstances of Ms Magomadova’s disappearance other than that she had not been seen since the morning of 16 December 2002. An investigation was opened into the circumstances of her disappearance, and was discontinued and restarted several times for failure to identify those responsible. It is still pending. Despite specific requests by the Court, the Government refused to disclose the entire investigation file, referring to the incompatibility of such disclosure with domestic legislation.

No violation of Article 2 (right to life in respect of Ms Magomadova)

Violation of Article 2 (lack of effective investigation into the disappearance of Ms Magomadova)

The Court awarded EUR 5,000 to each applicant in respect of non-pecuniary damage and EUR 4,500 for costs and expenses.

3. Nenkayev and Others v. Russia (no. 13737/03)

The applicants in the third case are ten Russian nationals who live in Urus-Martan (Chechen Republic). They are the relatives of Muslim Nenkayev, born in 1982, who has not been seen since the early hours of 8 June 2002 when he and his brother, Isa Nenkayev, an applicant in the case and an officer of the special police unit of the Chechen Republic, were abducted from their family home by a large group of armed, masked men wearing camouflage uniforms. Isa Nenkayev submitted that he and his brother were led on foot for some 50 minutes to a building he assumed to be the military commander’s office in the centre of Urus-Martan. According to his account of the ensuing events, he and his brother, blindfolded and handcuffed, were detained together there in a cell. Isa was questioned and released after 24 hours, but was told that his brother, Muslim, would be taken to a prosecutor’s office. The Government submitted that they had no other information apart from the fact that both Isa and Muslim had been abducted on 8 June 2002 and the former had been released the following day.

Since 8 June 2002, the applicants have tried to establish the whereabouts of Muslim, and have repeatedly applied to various State authorities, including prosecutors’ offices at different levels. An investigation was opened into Muslim’s disappearance; it was discontinued and restarted several times for failure to identify those responsible. In April 2003, the applicants complained before the Urus-Martan Town Court that the district prosecutor’s office had failed to conduct an effective investigation into the kidnapping of the two brothers. The complaint was not examined. The versions of the parties differ as to the reasons why: while the applicants submitted that they were told by that court in January 2006 that they needed to bring a new copy of their complaint because there had been a fire in the court building, the Government submitted that the complaint had been returned to the applicants for failure to sign it. The investigation is ongoing.

Violation of Article 2 (right to life in respect of Muslim Nenkayev and lack of effective investigation into his disappearance)

No violation of Article 3 (inhuman treatment as regards Muslim Nenkayev)

Violation of Article 3 (inhuman treatment in respect of the mental suffering of the parents of Muslim, and of his brother Isa) and no violation of Article 3 (in respect of the rest of the applicants)

Violation of Article 5 (unacknowledged detention of Muslim and Isa Nenkayev)

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

No violation of Article 13 (lack of an effective remedy) taken in conjunction with Articles 3 and 8 (private and family life).

The Court awarded the applicants sums ranging from EUR 750 to EUR 20,000 in respect of non-pecuniary damage and EUR 6,650 for costs and expenses.

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Additional information concerning the Court’s findings in these cases

In the cases Basayeva and Others and Nenkayev and Others the Court considered that the applicants had presented a coherent and convincing picture of their relatives’ abduction, corroborated by witness statements.

The Court found that the fact that a large group of armed men in uniform had been able to move freely late at night in controlled areas and to abduct people from their homes strongly supported the applicants’ allegation that these were State servicemen. The Court considered it rather dubious that in the course of their fifty-minute march through Urus-Martan a visible assembly of fifteen to thirty armed men escorting the Nenkayev brothers could have remained unnoticed by military patrols or any other law enforcement agencies.

The Court therefore held in those two cases that the evidence available to it established that the applicants’ relatives had to be presumed dead following their unacknowledged detention by Russian servicemen during security operations. The Court came to these conclusions by drawing inferences from the Government’s failure to submit the documents from the investigation files which were in their exclusive possession or to provide another plausible explanation for the events in question. Noting in the case of Muslim Nenkayev that the authorities had not justified the use of lethal force by their agents and in the case of Muslim Nenkayev, Lecha Basayev and Lema Dikayev that the Government had failed to give any plausible explanation for the events in question, the Court concluded that there had been a violation of Article 2 in respect of Lecha Basayev, Lema Dikayev and Muslim Nenkayev.

However, in the case of Khumaydov and Khumaydov, the Court considered that the account of the events given by the applicants was rather disjointed. It thus held that in the absence of relevant information, it had been unable to find that security forces had been implicated in the disappearance of Khava Magomadova, neither had it established that she had been deprived of her life by State agents.

In all three cases, the Court further held 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 that the applicants in the Basayeva case and, in the case of Nenkayev, the parents of Muslim Nenkayev and his brother Isa, 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 this respect, in the case of Nenkayev, the Court noted that Isa Nenkayev – who had been arrested together with his brother and then detained for twenty-four hours – had directly been involved in communication with the authorities concerning Muslim’s disappearance and that the domestic investigation had concerned the kidnapping of the two Nenkayevs. In respect of the other seven applicants however, no evidence had been submitted that they had participated in the search of their relative. The Court therefore could not conclude that their mental suffering fell within the ambit of Article 3.

The Court also noted that the fact that Lema Dikayev had been kicked and beaten with rifle butts in the presence of his family not only had to have caused him physical pain, taking into account his second-degree disability and abdominal sutures, but had also to have made him feel humiliated, and had thus constituted a violation of Article 3.

In the cases of Basayeva and Nenkayev, the Court found 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. In respect of Muslim and Isa Nenkayev’s detention, the absence of records – noting the date, time, location of detention, name of the detainee, reasons for the detention and name of the person effecting it – must be seen as incompatible with the very purpose of Article 5, and had enabled those responsible for Muslim Nenkayev’s deprivation of liberty to conceal their involvement in a crime.