ECHR Fines Russia and Georgia
The European Court of Human Rights (ECHR) has fined Georgia at 1100 Euro for unlawful detention of two Chechen refugees; and Russia at 550 thousand Euro for disappearances of 8 Chechen civilians between March 2002 and July 2004.
Here are the press releases:
EUROPEAN COURT OF HUMAN RIGHTS
ECHR 456 (2012)
Baisuev and Anzorov v. Georgia (no. 39804/04)
The applicants, Adam Baisuev and Rustam Anzorov, are Russian nationals who were born in 1980 and 1979 respectively. They are of Chechen origin. Residing at the time in Tbilisi (Georgia), where they had refugee status, they were detained for three hours at a police station in the course of a large-scale identity check operation conducted by the Georgian police on 7 December 2002 targeted at Russian citizens of Chechen origin. Relying in particular on Article 5 §§ 1 and 2, (right to liberty and security), they complained that their detention had had no legal basis and that they had not been informed about the reasons for their detention.
Violation of Article 5 § 1
Violation of Article 5 § 2
Just satisfaction: EUR 500 (non-pecuniary damage) to each applicant and EUR 100 (costs and expenses) jointly to both applicants.
EUROPEAN COURT OF HUMAN RIGHTS
ECHR 456 (2012)
Court finds non-investigation of disappearances in Russia’s North Caucasus a systemic problem and recommends measures to address continuing human rights violations
In today’s Chamber judgment in the case of Aslakhanova and Others v. Russia (application nos. 2944/06, 8300/07, 42509/10, 50184/07 and 332/08), which is not final, the European Court of Human Rights 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 disappearances of the applicants’ eight relatives, and a violation of Article 2 on account of the authorities’ failure to conduct an effective investigation into those disappearances;
a violation of Article 3 (prohibition of torture and of inhuman or degrading treatment) in respect of all applicants, on account of their relatives’ disappearance and the authorities’ response to their suffering, and a violation of Article 3 in respect of one of the applicants, Akhmed Shidayev, on account of his inhuman and degrading treatment in October 2002 and the failure to effectively investigate his allegations;
a violation of Article 5 (right to liberty and security) in respect of the applicants’ disappeared relatives, and a violation of Article 5 in respect of Akhmed Shidayev’s illegal detention in October 2002; and,
a violation of Article 13 (right to an effective remedy) in conjunction with Articles 2 and 3.
The case concerned the disappearances of eight men in Chechnya between March 2002 and July 2004, after having been arrested in a manner resembling a security operation.
The Court has regularly found violations of the same rights in similar cases in more than 120 judgments, resulting from the disappearances that have occurred in the Northern Caucasus since 1999. It concluded that the situation in the case of Aslakhanova and Others resulted from a systemic problem of non-investigation of such crimes, for which there was no effective remedy at national level.
The Court outlined two types of general measures, under Article 46 (binding force and execution of judgments), to be taken by Russia to address those problems: to alleviate the continuing suffering of the victims’ families; and, to remedy the structural deficiencies of the criminal proceedings. A corresponding strategy was to be prepared by Russia without delay and to be submitted to the Committee of Ministers for the supervision of its implementation. At the same time, the Court decided not to adjourn the examination of similar cases pending before it.
The applicants are 16 Russian nationals, belonging to five families, all of whom live in Chechnya. Their eight male relatives disappeared after having been arrested between March 2002 and July 2004, in Grozny or the Grozny District, by groups of armed and masked men in a manner resembling a security operation.
As confirmed by several witness statements and other documents collected by Satsita Aslakhanova, the applicant in the first case, her husband was abducted in Grozny on 10 March 2002 by a group of armed men using military vehicles. By a decision of the district court, he was declared missing as of that date.
According to evidence presented by the applicants in the second and third case, in the morning of 23 and 25 October 2002, respectively, a group of armed men drove a vehicle through a military checkpoint in Grozny. The group searched several houses and arrested four men, three of whom, Larisa Barshova’s two sons and the father and husband, respectively, of Akhmed Shidayev and Belkis Shidayeva, subsequently disappeared. The fourth man, Akhmed Shidayev, 18 years old at the time, was released several days later. He gave a detailed testimony about the abduction, ill-treatment and his detention together with the three missing men.
According to the submissions of the applicants in the fourth case, their son, husband and father, respectively, was arrested at his house in Grozny on 1 July 2004 by a group of up to twenty persons, heavily armed and wearing camouflage uniforms, communicating by radio. The group searched the applicants’ flat and neighbouring flats and checked the residents’ documents. Its vehicles, some of them armoured, had no number plates and were driven through police roadblocks. Two other persons detained with the applicants’ relative were released the same day and gave statements about their detention and questioning.
According to the submissions of the applicants in the fifth case, in the morning of 22 February 2003, a group of up to ten masked men in camouflage uniforms, armed with automatic weapons, broke into several houses in Dachu-Borzoy in the Grozny District. The men, who spoke Russian and communicated with their superiors by radio, arrested three of the applicants’ relatives and took them away, barefoot and in their underwear, in military vehicles. The convoy then passed by a roadblock and a military base.
In each case, a criminal investigation was eventually opened by the local prosecutor’s office. In none of the cases it has produced results as to the whereabouts of the applicants’ relatives or the identity of the perpetrators of the abductions.
The Russian Government did not dispute the principal facts of each case as presented by the applicants, but noted that as the investigations were pending, any conclusions about the exact circumstances of the crimes would be premature. They argued that it had not been established with sufficient certitude that the applicants’ relatives had been detained by State officials or that they were dead.
Complaints, procedure and composition of the Court
The applicants complained that there had been a violation of Article 2 in respect of their relatives’ disappearance and on account of the authorities’ failure to conduct an effective investigation. They further alleged a violation of Article 3 and Article 5, in particular as a result of the mental suffering caused to them by their relatives’ disappearance and the unlawfulness of their detention. They argued that they did not have any effective remedy in Russia in respect of their complaints, in breach of Article 13. Finally, they pointed to the systemic nature of the failure to investigate such crimes, referring to Article 46.
The application in the case of Satsita Aslakhanova v. Russia was lodged with the European Court of Human Rights on 13 January 2006; the applications in the cases of Larisa Barshova v. Russia, Akhmed Shidayev and Belkis Shidayeva v. Russia, Malika Amkhadova and others v. Russia, and Satsita Sagaipova and Others v. Russia were lodged on 9 January 2007, 28 July 2010, 23 October 2007 and 16 November 2007, respectively.
Judgment was given by a Chamber of seven judges, composed as follows:
Isabelle Berro-Lefèvre (Monaco), President,
Anatoly Kovler (Russia),
Khanlar Hajiyev (Azerbaijan),
Mirjana Lazarova Trajkovska (“the former Yugoslav Republic of Macedonia”),
Julia Laffranque (Estonia),
Linos-Alexandre Sicilianos (Greece),
Erik Møse (Norway),
and also Søren Nielsen, Section Registrar.
Decision of the Court
As to the facts, the Court was satisfied that the applicants in all five cases had presented a prima facie case that their respective relative(s) had been abducted by State agents. The burden of proof had thus been shifted to the Russian Government. The Government, while questioning the validity of some of the evidence and pointing to the unfinished nature of the criminal investigations, had not provided the Court with a satisfactory and convincing alternative explanation for the events. The Court then concluded that the applicants’ relatives should be presumed dead, in view of the absence of any news of them for many years and life-threatening nature of the unacknowledged detention in the given context.
In view of that finding, the liability for the presumed death of the applicants’ relatives rested with the State. Noting that the Russian Government had not given any justification of the deaths, the Court found that there had been violations of Article 2 in respect of Apti Avtayev, Sulumbek Barshov, Anzor Barshov, Abuyazid Shidayev, Ayub Temersultanov, Ayub Nalbiyev, Badrudin Abazov and Ramzan Tepsayev.
The investigations into the abductions had been pending for many years without bringing about any significant developments as to the identities of the perpetrators or the fate of the applicants’ missing relatives. Moreover, the criminal proceedings in all cases had been plagued by a combination of the same defects that the Court had previously identified in many other cases concerning disappearances in Chechnya and Ingushetia between 1999 and 2006, namely: delays in the opening of the proceedings and in the taking of essential steps; lengthy periods of inactivity; failure to take vital investigative steps, especially those aimed at the identification and questioning of the military and security officers who could have witnessed or participated in the abduction; failure to involve the military prosecutors even where there was sufficient evidence of the servicemen’s involvement in the crimes; inability to trace the vehicles, their provenance and passage through military roadblocks; belated granting of victim status to the relatives; and failure to ensure public scrutiny by informing relatives of key investigative steps and by granting them access to the results of the investigation.
In the light of those shortcomings, the Court dismissed the Russian Government’s objection of non-exhaustion of the national remedies. It accordingly found another violation of Article 2 on account of the authorities’ failure to conduct effective investigations into the circumstances of the disappearance of the applicants’ relatives.
Articles 3 and 5
In view of the State’s responsibility for the abductions and the failure to carry out a meaningful investigation into the fates of the disappeared men, the Court further found that the applicants had to be considered victims of a violation of Article 3. Close relatives of the disappeared men, they had suffered, and continued to suffer, distress and anguish as a result of their inability to ascertain the fate of their family members and of the manner in which their complaints had been dealt with.
The Court then found that since it had been established that the applicants’ relatives had been detained by State agents, without any legal grounds or acknowledgement of such detention, this constituted a particularly grave violation of Article 5.
There had been a separate violation of Article 5 in respect of Akhmed Shidayev on account of his unacknowledged detention and a violation of Article 3 in so far as it prohibits inhuman and degrading treatment. The mere fact of being held incommunicado in unacknowledged detention, witnessing the ill-treatment of his father and neighbours, had to have caused Mr Shidayev considerable anguish and distress, and put him in acute and constant fear of being subjected to ill-treatment or even killed. The Court did not consider it necessary to examine his further allegations of ill-treatment. There had also been a violation of Article 3 on account of the failure to investigate his allegations of illtreatment.
Finally, given the absence of any results of the criminal investigation, any other remedy in civil proceedings became inaccessible in practice. Accordingly, the Court found that the applicants had not had an effective remedy at national level at their disposal for their grievances under Articles 2 and 3, in breach of Article 13 of the Convention.
The Court noted that it had regularly found violations of the same rights in similar cases in more than 120 judgments, resulting from the disappearances that have occurred in the Northern Caucasus since 1999. It concluded that the situation in the applicants’ case resulted from systemic problem of non-investigation of such crimes, for which there was no effective remedy at national level.
Given the scope and nature of the problems, the Court was not in a position to order the exact measures to be implemented by Russia or set a deadline in order to comply with the judgment. However, a number of urgent measures appeared inevitable to end or to alleviate the continuing violations of the Convention. A number of recommendations had been made in this regard by Russian and international authorities and expert bodies.
Referring to those recommendations, the Court found that the measures fell into two principal groups. The most pressing need concerned the continued suffering of the relatives of the victims of disappearances. The Court supported the idea of creating a single body in charge of solving disappearances in the region with unrestricted access to all relevant information; it suggested the allocation of funds for large-scale forensic work, location and exhumation of presumed burial sites; and the possibility of paying financial compensation to victims’ families. The Court welcomed the steps taken already in this direction and a pending initiative to pay compensation to victims’ relatives.
The second group of measures would concern the effectiveness of the investigations. In particular, they would include: The adoption of a general action plan to shed light on questions common to all cases where it was suspected that State officials had carried out abductions; granting investigators unhindered access to the relevant data of military and security agencies; ensuring that the investigation was not entrusted to or supervised by persons possibly implicated in the abductions; granting victims access to the case files; and avoid terminating proceedings solely on the grounds of expiry of time-limits.
A comprehensive and time-bound strategy was to be prepared by Russia and submitted to the Committee of Ministers without delay, for the supervision of its implementation.
The Court decided not to adjourn the examination of similar cases pending before it, in view of the serious and continuing nature of the alleged violations of the Convention.
Just satisfaction (Article 41)
The court held that Russia was to pay:
– to Satsita Aslakhanova 14,000 euros (EUR) in respect of pecuniary damage, EUR 60,000 in respect of non-pecuniary damage and EUR 3,000 in respect of costs and expenses;
– to Larisa Barshova EUR 120,000 in respect of non-pecuniary damage and EUR 3,000 in respect of costs and expenses;
– to Akhmed Shidayev and Belkis Shidayeva EUR 60,000 jointly, and EUR 7,500 to Akhmed Shidayev in respect of inhuman treatment suffered by him during unlawful detention, in respect of non-pecuniary damage and EUR 3,000 to both applicants in respect of costs and expenses;
– to the five applicants in the case of Malika Amkhadova and others v. Russia jointly EUR 16,000 in respect of pecuniary damage, EUR 60,000 in respect of non-pecuniary damage and EUR 1,182 in respect of costs and expenses; and,
– in the case of Satsita Sagaipova and Others v. Russia, to Satsita Sagaipova, Aminat Nalbiyeva and Abu Nalbiyev EUR 14,000 jointly in respect of pecuniary damage; to Satsita Sagaipova, Khadizhat and Aminat Nalbiyeva and Abu Nalbiyev EUR 60,000 jointly, to Seda Abazova EUR 60,000, to Tatyana and Aminat Magomerzayeva EUR 60,000 jointly in respect of non-pecuniary damage and EUR 9,000 jointly in respect of costs and expenses.