The judgment of the European Court of Human Rights in the case of Imakayeva v. Russia was delivered on 9 November 2006 and will become final in the circumstances set out in Article 44 § 2 of the European Convention on Human Rights.
EUROPEAN COURT OF HUMAN RIGHTS
676
9.11.2006
Press release issued by the Registrar
CHAMBER JUDGMENT
IMAKAYEVA v.
The European Court of Human Rights has today notified in writing its Chamber judgment[1] in the case of Imakayeva v. Russia (application no. 7615/02).
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 of the applicant’s son;
· a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the disappearance of the applicant’s son;
· a violation of Article 2 concerning the disappearance of the applicant’s husband;
· a violation of Article 2 concerning the failure to conduct an effective investigation into the disappearance of the applicant’s husband;
· a violation of Article 3 (prohibition of inhuman or degrading treatment) concerning the applicant;
· a violation of Article 5 (right to liberty and security) concerning the applicant’s husband and son;
· a violation of Article 8 (right to respect for private and family life); and,
· a violation of Article 13 (right to an effective remedy).
The Court also found unanimously that the Russian Government failed to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).
Under Article 41 (just satisfaction), the Court awarded the applicant 20,000 euros (EUR) in respect of pecuniary damage, EUR 70,000 for non-pecuniary damage and EUR 9,114 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Marzet Imakayeva, is a Russian national who was born in 1951 and lived in Novye Atagi (
The case concerned the disappearance of the applicant’s husband, Said-Magomed Imakayev, born in 1955, and one of their three children, Said-Khuseyn, born in 1977. The applicant is a school teacher by profession. Said-Khuseyn graduated from medical school in 1999 as a dentist and continued his studies in the Grozny Oil Institute.
The applicant alleged that her son disappeared after being detained by servicemen on 17 December 2000. She referred to eye-witnesses’ statements describing the abductors as “military personnel”, asserting that they had used military vehicles and that the abduction had occurred at the entry to the village of Novye Atagi, in the immediate vicinity of a military roadblock. She has had no news of her son since.
On 18 December 2000 the applicant and her husband began applying to prosecutors at different levels for news of their son. They also visited detention centres and prisons in
On 5 January 2001 the applicant was informed that on 4 January 2001 criminal proceedings had been started in respect of the suspected kidnapping of her son.
In the early hours of 2 June 2002, the applicant alleged that about 20 servicemen in military camouflage uniforms came and searched her house without a warrant, confiscated a number of items and forced her husband to leave with them. She relied on her own statements and the statements of 30 witnesses collected by her and stressed that, on the same night, four other men from Novye Atagi had been detained by the same group. The applicant and other witnesses submitted details of some of the servicemen who had conducted the operation and noted the registration numbers of the military vehicles (APCs and a UAZ) involved. They later saw one of those vehicles at the district military commander’s office. The applicant has had no news of her husband since.
On 16 July 2002 the applicant was informed that, on 28 June 2002, criminal proceedings had been started concerning her husband and that the investigation established that he had not been detained by the law-enforcement agencies.
She was also informed that day that the criminal investigation into her son’s disappearance had failed to establish his whereabouts. On 24 July 2002 she was granted victim status regarding her son’s abduction.
On 9 July 2004 the criminal investigation into the abduction of the applicant’s husband was closed on the ground that no criminal offence had been committed. The applicant was informed at that stage that in fact her husband had been detained by military servicemen in accordance with the Federal Laws on the Suppression of Terrorism and on the Federal Security Service and had been subsequently released. On 9 July 2004 her victim status was withdrawn. According to the Government, on 2 June 2002, military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. His involvement was not established, however, and he was transferred to the head of the Shali administration (who later died) to be returned home. No abduction had been committed and the actions of the servicemen who had detained Mr Imakayev did not constitute an offence. Mr Imakayev’s further absence from his place of residence was not connected to his detention by military servicemen, so the applicant had suffered no pecuniary or non-pecuniary damage.
In October 2005, the Government submitted that the investigation into the kidnapping of the applicant’s son established that, at about 3 p.m. on 17 December 2000, Said-Khuseyn Imakayev had been stopped by a group of armed persons near the
The Government also stated that a new criminal investigation was opened on 16 November 2004 into the abduction of the applicant’s husband. It was adjourned on 16 February 2005.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 12 February 2002 and declared admissible on 20 January 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot),
Françoise Tulkens (Belgian),
Nina Vajić (Croatian),
Anatoli Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani), judges,
and also Søren Nielsen, Section Registrar.
3. Summary of the judgment[2]
Complaints
The applicant alleged that first her son and then her husband “disappeared” following their apprehension by Russian servicemen in
Decision of the Court
Establishment of the facts
The Court observed that the applicant presented very serious allegations, supported by evidence she had collected. The Government refused to disclose any documents which could shed light on the fate of her son and husband and did not present any plausible explanation concerning their alleged detention or subsequent fate. In view of that patent denial of cooperation, the Court was therefore obliged to take a decision on the facts of the case with the materials available.
Concerning the applicant’s son, the Court made four requests to the Russian Government for access to documents from the criminal investigation file opened into his abduction.
The Government did not submit any relevant information about his whereabouts, merely stating that an investigation into the kidnapping was under way. They refused to disclose any documents of substance from the criminal investigation file and the explanations given were insufficient to justify the withholding of such key information.
The Court considered that the applicant had presented a coherent and convincing picture of her son’s detention on 17 December 2000. It had reviewed no material which could cast doubt on the credibility of her statements or the information submitted by her. She identified three eye-witnesses and collected their statements, which referred to the involvement of the military or security forces in the abduction. Despite the statement by the Government that the abduction could have been committed by members of illegal armed groups for the purpose of discrediting the federal forces, no evidence had been submitted to the Court to support such an allegation.
The Court noted that the absence of any custody records concerning Said-Khuseyn Imakayev could not as such be regarded as conclusive evidence that he was not detained. In the similar situation concerning his father, Said-Magomed Imakayev, detention had initially also been denied by the authorities, but was acknowledged two years later without the production of any custody records.
Furthermore, the Court found it particularly regrettable that there should have been no thorough investigation into the relevant facts by the domestic prosecutors or courts. The few documents submitted by the Government from the investigation file did not suggest any progress in more than five years and, if anything, showed the incomplete and inadequate nature of those proceedings.
Accordingly, the Court found that the evidence available enabled it to establish to the requisite standard of proof that Said-Khuseyn Imakayev was last seen in the hands of unknown military or security personnel during the afternoon of 17 December 2000. His subsequent fate and whereabouts could not be established with any degree of certainty.
Concerning the applicant’s husband, the Court made four requests to the Russian Government for the documents from the criminal investigation file opened into his abduction.
The Government first denied that Said-Magomed Imakayev had been apprehended by law-enforcement or security bodies and that he had been abducted by members of a terrorist organisation with a view to discrediting the federal forces. However, in July 2004 the investigation established that the applicant’s husband had indeed been detained on suspicion of involvement in a terrorist organisation. It also established that he had been released and transferred to the head of the district administration, who later died. The applicant’s husband had then disappeared. That was apparently established on the basis of witness statements by a number of servicemen involved in the operation. The Government refused to produce any documents or to disclose any details of the investigation, referring to the Suppression of Terrorism Act and to the facts that the case file contained state secrets and that its disclosure would be in violation of the Code Criminal Procedure.
The Court concluded that the Russian Government’s explanations were wholly insufficient to justify the withholding of the key information specifically sought by the Court.
The Court found that the applicant submitted a comprehensive and coherent account of the events of 2 June 2002, complete with several dozen witness statements and detailed descriptions of the individual servicemen and vehicles involved in the operation. That information was immediately available to the authorities to whom the applicant applied with requests to carry out an investigation and to ensure her husband’s release. However, they failed to act with the promptness which could possibly have prevented his disappearance. Instead, for more than two years, officials denied that Said-Magomed Imakayev had ever been detained. In the meantime, investigators appeared to have obtained information that the applicant’s husband had indeed been detained on suspicion of involvement in illegal activities. On the basis of witness statements by unnamed servicemen, the investigators also concluded that he had been released after a certain time in custody, even though no records of his detention, questioning or release existed. In July 2004 the investigation conducted by the military prosecutor was closed and the applicant’s victim status was withdrawn, thus depriving her of the possibility to have access to the case file and to learn who had detained her husband and why.
The Court noted that the mere acknowledgement of detention took more than two years and that no significant information was given to any interested party at the conclusion of the investigation by the military prosecutor. In November 2004 the local prosecutor in
Accordingly, the Court found it established to the standard of proof “beyond reasonable doubt” that Said-Magomed Imakayev was detained by the security forces on 2 June 2002. No records were drawn up in respect of his detention, questioning or release. After that date he “disappeared” and his family had had no news of him.
Article 2
Failure to protect the right to life of the applicant’s son
The Court recalled that it had found it established that the applicant’s son was last seen on 17 December
Noting that the Russian authorities did not rely on any ground of justification in respect of the use of lethal force by their agents, it followed that liability for Said-Khuseyn Imakayev’s presumed death was attributable to the Russian Government. Accordingly, there had been a violation of Article 2.
Inadequacy of the investigation into the abduction of the applicant’s son
The Court observed that the only known important procedural step in the investigation into the abduction of the applicant’s son - that of granting the applicant victim status - occurred only in July 2002, more than one-and-a-half years after it was opened. The information provided in July 2002 and October 2005 did not suggest that the investigation had made any progress whatsoever in the task of solving Said-Khuseyn Imakayev’s disappearance, while the Government refused to submit other documents from the file or to disclose their contents. The Court further noted the inconsistencies in the various documents regarding the adjournment of the investigation communicated by the different authorities.
In those circumstances the Court found that there had been a further violation of Article
Failure to protect the right to life of the applicant’s husband
It had been established that Said-Magomed Imakayev was detained by military servicemen during a special operation on 2 June 2002. His family have had no news of him since. No records were drawn up of his detention, questioning or release, and until July 2004 the authorities denied that he had ever been detained, both to the applicant and to the
The Court found that Said-Magomed Imakayev was detained in circumstances that could be described as life-threatening. The absence of any news from him for almost four years supported that assumption. Moreover, the stance of the prosecutor’s office and other law-enforcement authorities after the news of his detention had been communicated to them by the applicant significantly contributed to the possibility of disappearance, because no necessary actions were taken in the crucial first days or weeks after the detention. Their behaviour in the face of the applicant’s well-established complaints gave a strong presumption of at least acquiescence in the situation and raised strong doubts as to the objectivity of the investigation.
The Court therefore considered that Said-Magomed Imakayev had to be presumed dead following unacknowledged detention by State authorities. The Russian Government did not invoke any reasons as to the lawfulness of the deprivation of life. Accordingly, there had been a violation of Article 2 on that account in respect of Said-Magomed Imakayev.
Inadequacy of the investigation into the abduction of the applicant’s husband
In view of the above considerations, the Court further found that there had been a violation of Article 2 concerning inadequacy of the investigation into the abduction of the applicant’s husband.
Article 3
The Court noted that the applicant was a close relative of the two men who had disappeared and was present when her husband was detained. She had had no news of her son for five-and-a-half years or her husband for three-and-a-half years. During that period she had applied to various official bodies with inquiries about her family members, both in writing and in person. Despite her attempts, she had never received any plausible explanation or information as to what had become of them following their detention. The responses received by the applicant mostly denied the responsibility of the State or simply informed her that an investigation was ongoing. As an additional element contributing to the applicant’s sufferings, the Court noted the authorities’ unjustified denial to the applicant of access to the documents of the criminal investigation files, which could shed light on the fate of her relatives.
In view of the above, the Court found that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of her son and husband and of her inability to find out what had happened to them. The manner in which her complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment contrary to Article 3. The Court concluded therefore that there had been a violation of Article
Article 5
The Court reiterated that it had found it established that Said-Khuseyn Imakayev was detained on 17 December 2000 by the federal authorities and had not been seen since. The Government submitted no explanation of his detention and provided no documents of substance from the domestic investigation into the apprehension. The Court thus concluded that Said-Khuseyn Imakayev was a victim of unacknowledged detention, in violation of Article 5.
As far as Said-Magomed Imakayev’s detention was concerned, the Government had not submitted any material concerning the applicant’s arrest which would enable it to evaluate its reasonableness. The mere reference to the provisions of the Suppression of Terrorism Act could not replace a proper assessment of the reasonableness of suspicion in respect of the person in question.
Furthermore, it appeared from the materials of the case that Imakayev’s detention was not logged in the relevant custody records and there existed no official trace of his questioning, release or subsequent whereabouts. For more than two years the authorities denied that he had ever been detained, before they collected witness statements from unnamed servicemen involved in his apprehension. The Government declined to disclose any information concerning the exact timing and place of Said-Magomed Imakayev’s detention, the agency and officials responsible for his apprehension and release and the legal and factual basis for those actions. 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 holding data recording such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it had to be seen as incompatible with the very purpose of Article 5.
The Court further considered that the authorities should have been alert to the need to investigate more thoroughly and promptly the applicant’s complaints that her son and then her husband were detained by the security forces and taken away in life-threatening circumstances. However, the authorities failed to take prompt and effective measures to safeguard Said-Khuseyn and Said-Magomed Imakayev against the risk of disappearance.
Accordingly, the Court found that Said-Khuseyn and Said-Magomed Imakayev were held in unacknowledged detention in the complete absence of the safeguards contained in Article 5 and that there had been a violation of Article 5.
Article 8
The Court noted that no search warrant was produced to the applicant during the search of her house and that no details were given of what was being sought. Furthermore, it appeared that no such warrant was drawn up at all. The Government were unable to submit any details about the reasons for the search or give any details about the items seized at the Imakayevs’ house, because they had allegedly been destroyed.
The Government’s reference to the Suppression of Terrorism Act could not replace an individual authorisation of a search, delimiting its object and scope, and drawn up in accordance with the relevant legal provisions either beforehand or afterwards. The provisions of that Act were not to be construed so as to create an exemption to any kind of limitations of personal rights for an indefinite period of time and without clear boundaries to the security forces’ actions. The application of those provisions in the applicant’s case was even more doubtful, given the Government’s failure to indicate what kind of counter-terrorist operation took place on 2 June
Finding that the search and seizure measures in the applicant’s case were implemented without any authorisation or safeguards, the Court concluded that there had been a violation of Article 8.
Article 13
The Court found that there had been a violation of Article
Articles 38 § 1 (a)
The Court found that the Government fell short of their obligations under Article 38 § 1 on account of their failure to submit copies of the documents requested in respect of Said-Khuseyn and Said-Magomed Imakayev’s disappearances.
Other findings
The Court also held, unanimously, that no separate issues arose concerning the applicant’s
other complaints.
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The European Court of Human Rights was set up in
[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
[2] This summary by the Registry does not bind the Court.