Gekhayeva and Others v. Russia
The ECHR case of Gekhayeva and others v. Russia (application no. 1755/04).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
GEKHAYEVA AND OTHERS v. RUSSIA
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Gekhayeva and Others v. Russia (application no. 1755/04).
The Court 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 applicants’ daughters and sister: Kurbika Zinabdiyeva and Aminat Dugayeva;
· a violation of Article 2 concerning Russia’s failure to conduct an effective investigation into the disappearances of Kurbika Zinabdiyeva and Aminat Dugayeva;
· a violation of Article 3 (prohibition of inhuman or degrading treatment) in respect of the applicants;
· a violation of Article 5 (right to liberty and security) in respect of Kurbika Zinabdiyeva and Aminat Dugayeva; and,
· a violation of Article 13 (right to an effective remedy).
Under Article 41 (just satisfaction) of the Convention, the Court awarded 35,000 euros (EUR) in respect of non-pecuniary damage to Aminat Dugayeva’s mother, and EUR 35,000, jointly, to Kurbika Zinabdiyeva’s mother and sisters. The applicants were awarded, jointly, EUR 5,150 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicants are five Russian nationals and all members of the same family: Rumani Gekhayeva, Zlikhat Dugayeva, Subani Akhyadova, Zubidat Gekhayeva and Aynet Malgasarova, born in 1947, 1950, 1965, 1971 and 1975, respectively. They live in Chechnya. Rumani Gekhayeva is the mother and Zubidat Gekhayeva and Aynet Malgasarova the sisters of Kurbika Zinabdiyeva, born in 1968. She suffered from a brain tumour and epilepsy and, due to migraines, was often confined to bed. Zlikhat Dugayeva is the mother of Aminat Dugayeva, who was born in 1988 and, at the relevant time, was in 9th grade at secondary school.
The case concerned the applicants’ allegation that Kurbika Zinabdiyeva and Aminat Dugayeva disappeared following a raid by Russian servicemen on Rumani Gekhayeva’s home in Ulus-Kert, a village in Chechnya.
According to the applicants, in the early hours of 16 May 2003 a group of 20 men wearing blue uniforms and balaclavas who spoke Russian raided the family home in Ulus-Kert. Rumani Gekhayeva was ordered to lie on the floor: her eyes, nose and mouth were wrapped up in masking tape, as were her wrists and ankles. She could not see and could barely breathe. She heard the men leave and it wasn’t until later that she was freed by neighbours and Ms V., a local official. They found the house ransacked and Kurbika and Aminat gone. They have had no news of them since.
The applicants claimed that Kurbika and Aminat were abducted by Russian servicemen and killed. The neighbours and Ms V. testified that the servicemen had come to the village in armoured personnel carriers and UAZ all-terrain military vehicles.
Immediately following the disappearances, there were reports in the media about two women, suspected of terrorism, having been arrested. According to the applicants, public officials stated, during an interview on regional television, that Kurbika and Aminat had been arrested. The Chechen newspaper Schit I Mech also reported that two women, suspected to be recruiters of suicide bombers and involved in organising a terrorist attack in Dubrovka (Moscow), had been arrested.
In the years that followed, the applicants requested the authorities, both in person and in writing for assistance. Zlikhat Dugayeva, in particular, demanded that urgent steps be taken to find her daughter, Aminat, who was 15 and therefore a minor when she disappeared. The two mothers were granted victim status in June and July 2003 but had no access to the case file concerning the investigation into the disappearances and were only informed of the adjournments and reopenings of those proceedings.
The Government denied that Russian servicemen were responsible for the disappearances and submitted that the two women had been kidnapped by unidentified armed men. Although the authorities initially refused to bring criminal proceedings as they considered that the women had been arrested, on 7 June 2003 a criminal investigation was launched. Furthermore, on 20 May 2004 a decision was issued which, finding that the investigation had not been comprehensive enough, requested that Ms V. be questioned, that the sources of the report in Schit I Mech be identified and that it be clarified whether Aminat and Kurbika had been involved in terrorism.
The investigation was suspended on 27 June 2004 and resumed again on 11 August 2006, but to date, has failed to identify those responsible for the disappearance of Aminat and Kurbika.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 11 November 2003.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Anatoly Kovler (Russian),
Elisabeth Steiner (Austrian),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian),
Giorgio Malinverni (Swiss),
George Nicolaou (Cypriot), judges,
and also Søren Nielsen, Section Registrar.
The applicants alleged that Kurbika Zinabdiyeva and Aminat Dugayeva disappeared after being detained by Russian servicemen and that the Russian authorities failed to carry out an effective investigation into their allegations. They also claimed that they endured mental suffering as a result of the disappearances and the failure by the authorities to investigate. They relied 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).
Decision of the Court
Concerning the disappearance of Kurbika Zinabdiyeva and Aminat Dugayeva
The Court found that the fact that a large group of armed men in uniform had been able to move freely in armoured personnel carriers during curfew hours strongly supported the applicants’ allegation that the abductors had been Russian servicemen.
Furthermore, 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 disappearances, the Court considered that Kurbika Zinabdiyeva and Aminat Dugayeva had been arrested in the early hours of 16 May 2003 by Russian servicemen during an unacknowledged security operation.
There had been no reliable news of the two women since 16 May 2003. Their names had not been found in any official detention facility’s records and the Government had not submitted any explanation as to what had happened to them after their abduction.
In the context of the conflict in Chechnya, when a person had been detained by unidentified servicemen without any subsequent acknowledgment of their detention, the situation could be regarded as life-threatening. The absence of Kurbika Zinabdiyeva and Aminat Dugayeva or any news of them for more than three years and five months corroborated that assumption. Furthermore, the investigation into the disappearances, dragging on for more than 40 months, had been incomplete and inadequate. Moreover, the authorities’ attitude immediately after the news of the two women’s abduction had contributed significantly to the likelihood of their disappearance.
The Court therefore considered that the two women had to be presumed dead following their unacknowledged detention by Russian servicemen. Noting that the authorities had not justified the use of lethal force by their agents, the Court concluded that there had been a violation of Article 2 in respect of Kurbika Zinabdiyeva and Aminat Dugayeva.
Concerning the investigation into the disappearances
Despite not having access to a complete investigation file, it was clear to the Court that a number of crucial steps had been delayed where prompt action had been vital. The investigation had only been opened 22 days after the crime as the authorities had initially refused to investigate. Furthermore, it was only in May 2004 that the investigating authorities had been requested to take such basic steps as questioning Ms V., verifying Schit I Mech’s sources and clarifying whether the applicants’ relatives had been implicated in terrorist activities. The investigation had also failed to establish promptly whether, as alleged by the applicants, public officials had made comments on television concerning the arrest of the two women.
The investigation had been adjourned and reopened a number of times and for more than two years, between 27 June 2004 and 11 August 2006, had been inactive. Even though the two women’s mothers had been granted victim status, they had only been informed of those adjournments and reopenings, and not of any other significant developments. In any event, the applicants had no access to the case file and had not been properly informed of the progress of the investigation, so they could not have effectively challenged before the domestic courts any failings in the investigation. Besides, the effectiveness of the investigation had already been undermined in its early stages by the authorities’ failure to take necessary and urgent investigative measures, which made it highly doubtful that any domestic remedy would have had a prospect of success.
The Court therefore concluded that the authorities had failed to carry out an effective criminal investigation into the circumstances of the disappearance of Kurbika Zinabdiyeva and Aminat Dugayeva, in further violation of Article 2.
The Court noted that the applicants were close relatives of the women who had disappeared. For more than three years they had had no news of them. During that period they had applied to various official bodies, both in writing and in person. Despite their enquiries, they had never received any plausible explanation or information as to what had happened following their relatives’ detention. The responses they had received mostly denied the State’s responsibility for their arrest or simply informed them that an investigation had been ongoing.
The fact that the servicemen had tied Rumani Gekhayeva up and left her lying on the floor had further contributed to her profound moral suffering.
The Court therefore found that the applicants had suffered, and continued to suffer, distress and anguish as a result of the disappearance of their close relatives and their inability to find out what had happened to them. The manner in which their complaints had been dealt with by the Russian authorities had to be considered to constitute inhuman treatment, in violation of Article 3
The Court reiterated that Kurbika Zinabdiyeva and Aminat Dugayeva had been arrested by Russian servicemen on 16 May 2003 and had not been seen since. Their detention had not been logged in any custody records and there existed no official trace of their subsequent whereabouts or fate. That fact in itself had to be considered a most serious failing, since it enabled those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee.
The Court further considered that the authorities should have been more aware of the need for a thorough and prompt investigation of the applicants’ complaints that their close relatives had been taken away and detained in life-threatening circumstances. However, there was no doubt that the authorities had failed to take prompt and effective measures to safeguard their relatives against the risk of disappearance.
Consequently, the Court found that Kurbika Zinabdiyeva and Aminat Dugayeva had been held in unacknowledged detention without any of the safeguards contained in Article 5. There had therefore been a particularly grave violation of Article 5.
The applicants should have had available to them effective remedies such as a thorough and effective investigation capable of leading to the identification and punishment of those responsible for their relatives’ death and the possibility to claim compensation.
In circumstances where, as in the applicants’ case, the criminal investigation into the disappearances had been ineffective and the effectiveness of any other remedy that might have existed, had consequently been undermined, the State had failed in its obligations under Article 13 in conjunction with Article 2.
No separate issues arose under Article 13 in conjunction with Articles 3 and 5.