The ECHR case of Magomed Musayev and Others v. Russia (application no. 8979/02).

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EUROPEAN COURT OF HUMAN RIGHTS

753

23.10.2008

Press release issued by the Registrar

CHAMBER JUDGMENT

MAGOMED MUSAYEV and OTHERS v. RUSSIA

Magomed Musayev and Others v. Russia (no. 8979/02)

The applicants are four Russian nationals who live in Raduzhnoye (the Chechen Republic): Magomed Musayev, the father of Said-Rakhman Musayev, born in 1984; Zargan Mitayeva, the mother of Odes Mitayev, born in 1972; and, Magomed Magomadov and Aynap Magomadova, the brother and mother of Magomed Magomadov, born in 1969.

On 10 December 2000 a large-scale sweeping operation took place in Raduzhnoye and the neighbouring district during which 21 men were detained, three of whom were the applicants’ relatives. The applicants discovered the bodies of the three men on 21 February 2001 at a burial site in Zdorovye, near to the Khankala military base. 50 other bodies were also found at the site, which was only accessible with a military escort. Documents subsequently issued by a medical clinic and Grozny civil registration office certified that Said-Rakhman Musayev and Odes Mitayev had died from “numerous gunshot and knife wounds to the body and head”.

The case concerned the applicants’ allegation that their three relatives were killed after being abducted by Russian servicemen on 10 December 2000 and that the domestic authorities failed to carry out an effective investigation into their allegation. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair hearing) and 13 (right to an effective remedy).

The Court held unanimously that there had been a failure by the State to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case) in that the Government refused to submit documents requested by the Court.

The Court noted that the applicants’ version of events was supported by witness statements, notably by men who had been detained on the same day as the applicants’ relatives but had subsequently been released. The abductors had allegedly acted in a manner similar to that of a security operation: they had arrived in a large group, wearing camouflage uniforms, spoken Russian among themselves and to residents, rounded up a large number of men and taken them to a prepared location where each detainee had been questioned about their alleged liaisons with illegal fighters. The abductors had used military vehicles such as APCs and Ural trucks, which could not have been available to paramilitary groups. The Court found that the fact that a large group of armed men in uniforms, equipped with military vehicles proceeded in broad daylight to check identity documents and to arrest over 20 persons in a town area strongly supported the applicants’ allegation that these were Russian servicemen.

Drawing inferences from the Government’s failure, despite specific requests from the Court, to submit documents from the criminal investigation file which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considered that Said-Rakhman Musayev, Odes Mitayev and Magomed Magomadov had been arrested on 10 December 2000 by Russian servicemen during an unacknowledged security operation.

There had been no news of the applicants’ relatives between their arrest and the discovery of their bodies. The Government had not disputed the fact that the men had been found within the security zone of the military base in Khankala or that a military escort had been necessary to access the site. Nor, most disturbingly, had they disputed the fact that the three bodies had been discovered at a burial site containing over 50 bodies, some bearing traces of summary executions and some identified as having been detained by Russian servicemen. The Court therefore considered that, as in a number of other “disappearance” cases before it, the facts supported the assumption that those detainees had been extra-judicially executed by agents of the State. In those circumstances, the Court concluded that Russia had been responsible for the deaths of the applicants’ three relatives and, noting that the authorities had not justified the use of lethal force by their agents, the Court held unanimously that there had been a violation of Article 2 in respect of Said-Rakhman Musayev, Odes Mitayev and Magomad Magomadov.

The Court also noted that the investigation had only been launched almost two-and-half months after the arrest and, according to the limited information available, had not made any progress in almost seven years. The Court therefore also 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 in which the applicants’ relatives had been killed.

Furthermore, the Court considered that the applicants had suffered distress and anguish as a result of the disappearance of their relatives and their inability to find out what had happened to them during the period when they had been missing. The manner in which their complaints had been dealt with by the authorities had to be considered as inhuman treatment, in violation of Article 3. It did not, however, find that it had been established exactly how the applicants’ relatives had died and whether they had been subjected to ill-treatment and therefore held that there had been no violation of Article 3 in that respect.

The Court further found that Said-Rakhman Musayev, Odes Mitayev and Magomad Magomadov 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.

Lastly, the Court held unanimously that there had been a violation of Article 13 in conjunction with Article 2.

The Court awarded EUR 10,000 to Zargan Mitayeva in respect of pecuniary damage. In respect of non-pecuniary damage, the Court awarded EUR 35,000, each, to Magomed Musayev and Zargan Mitayeva. Magomed Magomadov and Aynap Magomadova made no claims for damages in respect of the killing of their relative. The applicants were awarded EUR 9,519 (less EUR 850 received by way of legal aid from the Council of Europe) for costs and expenses. (The judgment is available only in English.)