Kukayev v. Russia
The ECHR case of Kukayev v. Russia (application no. 29361/02).
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
KUKAYEV 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 death of Aslanbek Kukayev;
· a violation of Article 2 of the Convention concerning the authorities’ failure to carry out an adequate and effective investigation into the disappearance and death of Aslanbek Kukayev;
· a violation of Article 3 (prohibition of inhuman treatment) concerning the applicant;
· 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 Mr Kukayev 7,000 euros (EUR) in respect of pecuniary damage, EUR 35,000 in respect of non-pecuniary damage and EUR 7,150 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Khamzat Khasanovich Kukayev, is a Russian national who was born in 1945 and lives in Grozny. His son, Aslanbek Kukayev, was an officer of the Chechen Department of the Interior Special Police Unit (“the Chechen OMON”) and lived in Grozny with his parents.
The case concerned Aslanbek Kukayev’s disappearance on 26 November 2000. He remained missing until 22 April 2001 when he was found dead from a gunshot wound to the head.
According to the applicant, on 26 November 2000 Russian servicemen carried out a special military operation near Grozny’s central market place. On that same day his son and another police officer, D., on their way by car to report for duty, were stopped and taken away by armed men in camouflage uniforms. Later that day, the applicant’s son, D., and other Chechen police officers were put into a GAZ 66 truck with an emblem representing a rearing horse. At Ordzhonikidze Avenue, the applicant’s son and D. were ordered to get out. The last time they were seen alive, they were being escorted towards the former Grozny Educational College building. To corroborate his version of events, the applicant submitted eyewitness statements by a civilian and two police officers, in particular, Mr Dzh., who was detained along with the applicant’s son but later released.
The Government denied the applicant’s account of events. It submitted that no special military operation was carried out on 26 November 2000 in the centre of Grozny and that unidentified, armed men in camouflage uniforms abducted the applicant’s son and others on that day.
The applicant actively searched for his son following his disappearance. He made enquiries in person at the headquarters of the Chechen OMON and Grozny central market and applied repeatedly to the authorities, including the military, prosecutors, the Special Envoy of the Russian President in Chechnya for Rights and Freedoms and the Russian President’s Office.
On 22 April 2001, during a military inspection of central Grozny, two bodies were found in the basement of Grozny Educational College. They were later identified as being Aslanbek Kukayev and D.. In May 2001 a death certificate was issued stating that the applicant’s son had died on 26 November 200 as a result of gunshot wounds. In June 2001 another certificate recorded the date of death as 26 November 2000.
On 10 August 2001 a report by the Chechen OMON stated that the applicant’s son and D. had gone missing on 26 November 2000 during a special operation by Russian servicemen near Grozny central market. Their bodies, bearing signs of a violent death, were found on 22 April 2001 in the basement of a derelict building on Ordzhonikidze Avenue.
In the meantime, on 13 December 2000 Grozny Prosecutor’s Office launched a criminal investigation into the disappearance of the applicant’s son and D.. The investigation was suspended in November 2001 but resumed again on 22 December 2005 when criminal proceedings were ordered concerning kidnapping and murder.
The Government claimed that all possible measures under national law were taken to identify those responsible for the death of the applicant’s son. In particular, a forensic examination of Aslanbek Kukayev’s body was carried out and the investigating authorities questioned the applicant, his wife, the servicemen who had found the bodies and four other people, including Mr Dzh, who, in the Government’s words, “were apprehended by Russian servicemen on 26 November 2000 during a special operation”. The applicant and his wife were also apparently granted victim status in December 2005.
The applicant submitted that information concerning the investigation was provided to him occasionally and only in fragments. On one occasion in March 2006 he was summoned to Zavodskoy District Prosecutor’s Office and he was informed that the investigation had been resumed but was not given access to the case file.
Between December 2000 and January 2007 the investigation was adjourned and reopened at least six times but, to date, has failed to identify those responsible for the killing of the applicant’s son.
The Russian Government failed to submit a complete 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 23 April 2002 and declared admissible on 23 October 2006.
Judgment was given by a Chamber of seven judges, composed as follows:
Peer Lorenzen (Danish), President,
Snejana Botoucharova (Bulgarian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Margarita Tsatsa-Nikolovska (citizen of “the former Yugoslav Republic of Macedonia”),
Rait Maruste (Estonian),
Anatoli Kovler (Russian), judges,
and also Claudia Westerdiek, Section Registrar.
Relying on Article 2, Mr Kukayev alleged that his son disappeared and was killed after being unlawfully apprehended and that the Russian authorities failed to carry out an adequate investigation into those allegations. He complained under Article 3 of the mental suffering he had to endure on account of his son’s disappearance and death and the failings of the domestic investigation. He further complained under Article 13 of the lack of effective remedies in respect of the alleged violations under Articles 2 and 3.
Decision of the Court
Concerning the disappearance and death of Aslanbek Kukayev
It was common ground between the parties that, on 26 November 2000, the applicant’s son had been abducted by armed men in camouflage uniforms near Grozny central market and that he had been murdered. 26 November 2000 was the official date of death on the certificates of May and June 2001 and had not been contested by the Government.
It was, however, a matter of disagreement as to whether Russian servicemen had carried out a special operation on that day.
The Court noted that the Chechen OMON report of 10 August 2001 as well as a number of witness statements, including those quoted by the applicant and even the Government, confirmed that a special operation had indeed taken place on 26 November 2000. The material in the Court’s possession did not show that any armed people other than Russian servicemen had been present at the scene of the abduction. In fact officer Dzh.’s statements clearly indicated that Russian servicemen had been involved in Aslanbek Kukayev’s detention. The Court therefore found it to be established that the applicant’s son had been apprehended by Russian servicemen in the course of a special operation on 26 November 2000.
Furthermore, the Government had never provided evidence or even suggested that the applicant’s son had been released immediately after having been apprehended. The Court was therefore led to conclude that the applicant’s son had died while being detained by Russian forces. As the Government had not given any plausible explanation for his death, it concluded that the State had been responsible and held that there had been a violation of Article 2.
Concerning the lack of an adequate and effective investigation
The Court observed that the investigation had repeatedly been stayed and reopened with one considerable period of inactivity, namely four years, between November 2001 and December 2005. The Government had not given any plausible explanation for that inactivity.
Once the investigation into the disappearance of the applicant’s son had been launched on 13 December 2000, it had been plagued with inexplicable shortcomings in taking the most essential steps in a situation where prompt action had been vital.
In particular, despite the fact that a number of eyewitnesses had pointed out that Aslanbek Kukayev had been apprehended by Russian servicemen and had indicated their military unit, its location and emblem, no meaningful efforts had been made to investigate their possible involvement in his abduction.
Even though Aslanbek Kukayev’s body had been found on 22 April 2001, the investigation into his murder had not been officially opened until 22 December 2005.
No examination had ever been carried out of the place where the applicant’s son had been abducted or of where his body had been discovered. The Court was sceptical about the Government’s statement that a forensic examination had been carried out on 23 April 2001, as it had not provided the Court with the resulting report.
The delay, not explained by the Government, in granting the applicant victim status had resulted in him having been unable to study the case file until December 2005. Even then, the applicant alleged that he had been denied access to the file in March 2006. Indeed, it was not quite clear whether the applicant had ever been recognised as a victim in the criminal proceedings as the Government had not substantiated their claim with any relevant decision or document.
The Court drew inferences from the Government only having supplied limited material from the investigation file and, along with the above failings in the investigation, concluded that the authorities had failed to carry out a thorough and effective investigation into the circumstances surrounding the death of Aslanbek Kukayev. It therefore held that there had been a further violation of Article 2.
The applicant’s son remained missing for almost five months. During that period the applicant had searched for him in person and made numerous attempts to prompt the authorities to investigate his son’s disappearance.
His uncertainty about the fate of his son had been aggravated by his exclusion from monitoring the progress of the investigation.
The Court concluded that the applicant had suffered distress and anguish as a result of his son’s disappearance and of his inability to find out what had happened to him. The manner in which the applicant’s complaints were dealt with by the authorities therefore had to be considered to constitute inhuman treatment, in violation of Article 3.
The Court noted that, in circumstances where, as in the applicant’s case, the criminal investigation into the 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.
It did not consider that any separate issue arose under Article 13 in connection with Article 3.
Article 38 § 1 (a)
The Court recalled that it had, on several occasions, asked the Government to submit a copy of the file on the investigation opened into the abduction and murder of the applicant’s son. The evidence contained in that file was regarded by the Court as crucial to the establishment of the facts. The Government had not provided an adequate response to those requests: notably it had refused to submit transcripts of witness interviews, reports on investigative actions, the report on the forensic examination or the decision granting the applicant victim status.
The Court also found the reasons given by the Government for its 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.