Khamila Isayeva v. Russia
The ECHR case of Khamila Isayeva v. Russia (application no. 6846/02).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
KHAMILA ISAYEVA v. RUSSIA
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the European convention on human rights concerning the disappearance and presumed death of the applicant’s husband;
· a violation of Article 2 concerning the failure to conduct an effective investigation into the circumstances of his disappearance;
· a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the applicant;
· a violation of Article 5 (right to liberty and security) concerning her husband’s unacknowledged detention;
· a violation of Article 13 (right to an effective remedy); and
· a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case) in that the Government had refused to submit documents requested by the Court.
Under Article 41 (just satisfaction), the Court awarded the applicant 15,000 euros (EUR) in respect of pecuniary damage, EUR 35,000 in respect of non-pecuniary damage and EUR 7,285 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Khamila Isayeva, is a Russian national who was born in 1961. At the time of the events, she and her husband, Sultan Isayev, lived in Alkhan-Kala (Chechnya). The applicant currently lives in Grozny (Chechnya).
The case concerned the disappearance of the applicant’s husband in Chechnya during a mopping-up operation conducted by the Russian military.
On 29 April 2001 Mr Isayev was having a steam bath at a house near his parent’s home in Alkhan-Kala. Two armoured personnel carriers (APCs) stopped outside and he was taken away, half-naked, in an APC along with the owner of the house.
According to the applicant, her husband was abducted by Russian servicemen. His father and five neighbours testified that armed soldiers had been responsible. Three eyewitnesses stated that they had seen Sultan Isayev being shoved into an APC by Russian servicemen. He has not been seen since.
In total ten men, aged between 25 and 45, were detained and taken away in Alkhan-Kala that day. The severely mutilated body of one of them was found two weeks later; the others are still missing.
According to the Russian Government, a special military operation was underway in Alkhan-Kala that day, during which Mr Isayev was taken away by unidentified armed men. They denied that State agents were responsible for his disappearance.
On 2 May 2001 the applicant, who was then in Ingushetia, learnt of her husband’s detention and went immediately to Chechnya to search for him. In the years that followed, she made numerous applications to the authorities, both in person and in writing.
On 4 May 2001 the Grozny District Prosecutor’s Office opened a criminal investigation into the disappearance of ten people in Alkhan-Kala, including the applicant’s husband. The investigation was suspended on 6 January 2005 because no suspects had been identified. However, according to the Government, on 27 December 2006, the Chechen Republic Prosecutor’s Office quashed that decision and resumed the investigation.
It is not clear whether the applicant was eventually granted victim status in the criminal proceedings.
The Russian Government failed to submit the investigation file in the case – despite specific requests from the European Court – on the ground that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 28 December 2001 and declared admissible on 24 October 2006.
Judgment was given by a Chamber of seven judges, composed as follows:
Loukis Loucaides (Cypriot), President,
Nina Vajić (Croatian),
Anatoli Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Giorgio Malinverni (Swiss), judges,
and also Søren Nielsen, Section Registrar.
Ms Isayeva complained that her husband was the victim of an unacknowledged detention by Russian servicemen and that his subsequent disappearance and the discovery of the body of a fellow detainee, showing signs of a violent death, indicated that her husband had been killed by State agents. She further claimed: that no effective investigation had been carried out into the circumstances of his detention and disappearance; that she had reason to believe her husband had been ill-treated prior to his death; and, that she had personally suffered extreme distress and anguish. She lastly complained that she had no access to a court, to compensation or to an effective remedy and that the Russian Government had failed in their obligation to provide information required by the European Court.
She relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 § 1 (right to a fair hearing) and 13 (right to an effective remedy), 34 (right of individual petition) and 38 (obligation to furnish necessary facilities for the examination of the case).
Decision of the Court
Concerning Mr Isayev’s disappearance
The Court drew inferences from the Russian Government’s failure to supply a copy of the relevant investigation file. It also considered that the applicant had presented a coherent and convincing picture of her husband’s detention on 29 April 2001, having collected statements from six witnesses, which referred to the involvement of the military or security forces in the abduction.
The Government did not deny that Mr Isayev was abducted by armed men and, at the same time, confirmed that a special operation had been conducted in the village on the date of his abduction. The fact that a large group of armed men in uniform, equipped with military vehicles, proceeded in broad daylight to apprehend several people at their homes in a village during a special operation conducted by Russian forces strongly supported the applicant’s allegation that they were State servicemen. The Court therefore concluded that, on 29 April 2001, Mr Isayev had been apprehended by Russian servicemen.
The Court observed that there had been no reliable news of the applicant’s husband since then. His name had not been found in any of the detention facilities records and the Government had not submitted any plausible explanation as to what had happened to him after his detention.
The Court considered that, in the context of the conflict in the Chechen Republic, where a person had been detained by unidentified servicemen without any subsequent acknowledgement of their detention, the situation could be regarded as life-threatening. The absence of Mr Isayev or any news of him for over six years corroborated that assumption, as did, to some extent, the fact that one of the villagers who had also disappeared during the special operation, was found dead two weeks later. Furthermore, the Government had failed to provide any explanation for Mr Isayev’s disappearance and the official investigation into his abduction, dragging on for more than six years, had produced no tangible results.
The Court therefore considered that Mr Isayev had to be presumed dead following his unacknowledged detention. Noting that the authorities had not justified the use of lethal force by their agents, it followed that liability for his presumed death was attributable to the Russian Government. There had therefore been a violation of Article 2 concerning Mr Isayev’s presumed death.
Concerning the investigation into Mr Isayev’s disappearance
The Court observed that the investigation into Mr Isayev’s disappearance following his apprehension on 29 April 2001, opened on 4 May 2001 and was plagued by inexplicable failures to perform the most essential tasks in a situation where prompt action had been vital. It appeared that witnesses and the servicemen directly involved were not questioned at all. Those failures alone compromised the effectiveness of the investigation and must have had a negative impact on the prospects of arriving at the truth. It also appeared that no real effort had been made by the authorities to identify the units taking part in the operation and ultimately the whereabouts and fate of Mr Isayev.
As to the manner in which the investigation had been conducted, the Court noted that, in a period of six years, it had been adjourned and reopened at least four times. Neither was it clear whether the applicant was ever granted victim status in the proceedings. In any event, she was not duly informed of the progress of the investigation and had no access to the case file, so she could not have effectively challenged the actions or omissions of the investigating authorities before a court.
The Court concluded that the authorities had failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance and presumed death of Mr Isayev, in violation of Article 2.
The Court noted that the applicant was the wife of an individual who had disappeared. For more than six years she had had no news of him. During that period she had applied to various official bodies with enquiries about her husband, both in writing and in person. Despite her attempts, she had never received any plausible explanation or information as to what had happened to him. The responses she had received mostly denied the State’s responsibility for his arrest or simply informed her that an investigation was ongoing.
Her uncertainty about the fate of her husband was aggravated by the fact that she was prevented from monitoring the progress of the investigation.
The Court concluded that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of her husband and her inability to find out what happened to him. The manner in which her complaints were dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3.
The Court reiterated that Mr Isayev had been detained by State servicemen and had not been seen since. His detention was not logged in any custody records and there existed no official trace of his 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. Furthermore, the absence of proper detention records was incompatible with the very purpose of Article 5.
The Court further considered that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicant’s complaints that her husband had been detained and taken away in life-threatening circumstances. However, there was no doubt that the authorities had failed to take prompt and effective measures to safeguard Mr Isayev against the risk of disappearance.
The Court concluded that Mr Isayev was held in unacknowledged detention without any of the safeguards contained in Article 5, in violation of the right to liberty and security enshrined in Article 5.
The Court noted that, in circumstances where, as in the applicant’s case, the criminal investigation into a person’s disappearance and death 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, in violation of Article 13 in conjunction with Article 2.
No other separate issue arose under Article 13.
The Court did not consider it necessary to examine the applicant’s complaint under Article 6.
Article 38 § 1 (a) and Article 34
The Court recalled that it had, on several occasions, requested the Russian Government to submit a copy of the investigation file opened into the disappearance of the applicant’s husband. The evidence contained in the file was regarded by the Court as crucial for the establishment of the facts in the case. It also reiterated that it found the reasons given by the Government for their refusal to disclose the documents requested to be inadequate.
Referring to the importance of a Government’s cooperation in Convention proceedings and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court found that, in failing to submit the documents requested, the Russian Government had failed to meet their obligations under Article 38 § 1.
In view of that finding, the Court considered that no separate issues arose under Article 34.