issued by the Registrar of the Court ECHR 211 (2011) 25.10.

2011

Russian authorities failed to effectively investigate young mans disappearance in Chechnya

In todays Chamber judgment in the case Tashukhadzhiyev v. Russia (application no. 33251/04), which is not final1, the European Court of Human Rights held, unanimously, that there had been a violation of Article 2 (right to life: obligation to conduct an effective investigation) and of Article 13 (right to an effective remedy) in conjunction with Article 2 of the European Convention on Human Rights. The Court further held, by a majority, that there had been a violation of Article 5 (right to liberty and security). The case concerned the disappearance of a young man in Chechnya after having been detained by a group of military servicemen in 1996.

Principal facts
The applicant, Abdulbek Tashukhadzhiyev, is a Russian national who was born in 1936 and currently lives in Shali (Chechen Republic, Russia). His then 26-year-old son, Elbek Tashukhadzhiyev, was working as a petrol tanker driver when he was stopped and detained in February 1996 by a group of military servicemen near the village of Berkat-Yurt in Chechnya; he has not been seen since. On the day after his sons disappearance, Abdulbek Tashukhadzhiyev started a search for him. He was informed by the commander of an air force squadron stationed in the area that a group of military intelligence officers had detained his son and had taken him away in a vehicle. According to Mr Tashukhadzhiyevs submissions, his sons lorry was found some time later being used by military servicemen. The Russian Government did not challenge most of the facts as presented by Mr Tashukhadzhiyev, but they submitted that Elbek Tashukhadzhiyev was detained because a grenade launcher had been found in his vehicle. In March 1996, the military prosecutors office instituted a criminal investigation into the disappearance. In the course of the investigation, the commanding major of the intelligence unit submitted that, detained by his unit, Elbek Tashukhadzhiyev had jumped out of the car, had run away, and had then been shot and left in the forest. However, the major later changed his statement, submitting that Elbek Tashukhadzhiyev had run away and had not been seen since. In September 1996, the criminal investigation was terminated for lack of evidence. It was reopened in April 1998, without Abdulbek Tashukhadzhiyev being informed. The authorities subsequently terminated and reopened the investigation on a number of occasions without informing Mr Tashukhadzhiyev in a timely manner. They have failed to establish Elbek Tashukhadzhiyevs whereabouts.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

According to the Russian Government, the investigation is still in progress. Despite specific requests by the European Court of Human Rights, the Government did not disclose any documents from the case file, stating that the investigation was pending and the file contained confidential information.

Complaints, procedure and composition of the Court

Abdulbek Tashukhadzhiyev alleged that his son was killed by Russian servicemen, that the investigation into his allegation was inadequate, that he had been detained in violation of the procedural guarantees contained in the Convention and that he had been deprived of an effective remedy in respect of those alleged violations. He relied in particular on Articles 2 (right to life), 5 (right to liberty and security) and 13 (right to an effective remedy). The application was lodged with the European Court of Human Rights on 5 August 2004. Judgment was given by a Chamber of seven, composed as follows: Nina Vaji (Croatia), PRESIDENT, Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Mirjana Lazarova Trajkovska (the Former Yugoslav Republic of Macedonia), Julia Laffranque (Estonia), Linos-Alexandre Sicilianos (Greece), JUDGES, and also Sren Nielsen, SECTION REGISTRAR.

Decision of the Court

Article 2
As the Government had not disclosed any of the documents from the investigation, the Court had to assess the effectiveness of that investigation on the basis of the few documents submitted by Mr Tashukhadzhiyev and the general information about its progress presented by the Government. The Government had further failed to provide detailed information on the actual investigative steps taken by the authorities. However, from the scarce information in its possession, the Court noted that the investigation into Elbek Tashukhadzhiyevs disappearance had been opened more than a month after the incident and it had subsequently been terminated and reopened on several occasions. Taking into account the Governments reluctance to provide information about the reasons for the various decisions to reopen the proceedings, the Court inferred that the decisions to terminate the criminal investigation were overruled as unsubstantiated. That factor in itself, and the fourteen-year timeframe of the currently ongoing criminal proceedings, demonstrated the ineffectiveness of the investigation into Elbek Tashukhadzhiyevs disappearance. Furthermore, as was clear from the copies of the authorities letters submitted to the Court, Abdulbek Tashukhadzhiyev had not received any meaningful information concerning the progress of the investigation. The authorities had thus failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings. In that light, the Court rejected the Governments objection that the domestic remedies had not been exhausted, given that the investigation was still pending. There had accordingly been a violation of Article 2 in its procedural aspect.

Article 5
It was not disputed that Elbek Tashukhadzhiyev had been arrested by military servicemen and had subsequently disappeared. The authorities had acknowledged his arrest, but they had not provided any documentary evidence giving traces of his whereabouts afterwards. The Court pointed out that the procedural safeguards applicable to a persons detention had been disregarded. While there was no evidence that Elbek Tashukhadzhiyev had still been in detention in the period under the Courts consideration after the entry into force of the Convention in respect of Russia in 1998 - it remained incumbent on the domestic authorities to show that they had since carried out an effective investigation into the arguable claim that he had been taken into custody and had not been seen subsequently. The Courts findings in relation to Article 2 left no doubt that the authorities had also failed to conduct the necessary investigation in regard to his arrest and detention, in violation of Article 5.

Article 13 in conjunction with Article 2

The Court reiterated that where, as in the case of Mr Tashukhadzhiyev, a criminal investigation into a disappearance 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 under Article 13. There had accordingly been a violation of Article 13 in conjunction with Article 2.

Article 41
Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to pay Abdulbek Tashukhadzhiyev 30,000 euros (EUR) in respect of non-pecuniary damage.

Separate opinion
Judge Kovler expressed a partly dissenting opinion, which is annexed to the judgment. The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int. To receive the Courts press releases, please subscribe to the Courts RSS feeds.

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