Thursday, 28 October 2010

ECHR Delivers Ruling On Disappearance Of Two Brothers In Chechnya

In a 28 October Chamber judgment in the case Sasita Israilova and Others v. Russia (application no 35079/04), which is not final , the European Court of Human Rights held, unanimously, that there had been a:

Violation of Article 2 (right to life: disappearances) of the European Convention on Human Rights concerning the applicants’ relatives, Ilyas and Isa Yansuyev;

Violation of Article 2 (right to life: lack of effective investigation into disappearances);

Violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) in respect of the applicants’ mental suffering;

Two violations of Article 5 (right to liberty and security: unacknowledged detention);

A violation of Article 13 (right to an effective remedy) in conjunction with Article 2;

A violation of Article 38 (obligation ro furnish necessary facilities for the examination of the case).

The case concerned the applicants’ allegation that Ilyas and Isa were abducted and killed by Russian servicemen during an unacknowledged security operation in February 2003 in Grozny (the Chechen Republic).

Principal facts

The seven applicants in this case belong to the same family and are the parents, brother wives and children of Ilyas and Isa Yansuyev, brothers who were born respectively in 1978 and 1980. They all live in the Chechen Republic (Russia).

The applicants have had no news of the two brothers since the early hours of the morning of 13 February 2003 when they were abducted by a group of around 15 armed men in camouflage uniforms who broke into Ilyas Yansuyev’s flat in Grozny.

According to Ilyas Yansuyev’s wife, she was hit during the attack with an automatic rifle butt, had her hands tied behind her back and her mouth covered with adhesive tape. She was then made to lie on the floor for an hour with one of the abductors sitting on her back while the others searched the flat.

During that time, her sleeping eight-month old daughter had a pillow put over her face. Her husband was also beaten with a rifle butt before being forced, with his brother, into the street and taken away. Neighbours apparently saw the abductors arrive in two armoured personnel carriers. Isa Yansuyev’s wife, who had spent the night at her parents’ house in the same block of flats, was woken by the noise of the raid and, rushing into the street saw military vehicle tracks leading in the direction of the main federal military base. The Yansuyev family assumed that the men who had taken the brothers away belonged to the Russian military as they spoke Russian without an accent.

The applicants contacted, both in person and in writing, various official bodies, including the local administration, the Chechen administration and President, military commanders’ offices and prosecution offices at different levels, describing in detail the circumstances in which the two men were apprehended and asking for help to find them. An investigation was launched into the disappearances, which has been pending for over seven years. During that time it has been suspended and reopened on at least 18 occasions and has been plagued with inexplicable periods of inactivity. Despite specific requests by the Court, the Government did not disclose the full contents of the criminal investigation file, claiming that such a step was incompatible with domestic legislation.

The Russian Government denied the applicants’ allegations, claiming that their evidence was not reliable and that the abductions could have been carried out by mercenaries or illegal armed groups who had participated in the armed conflict in Chechnya and had been involved in stealing weapons from Russian arsenals.

Complaints, procedure and composition of the Court

Relying on Articles 2, 3, 5, 13 and 38, the applicants complained about the abduction, unlawful detention and ultimate disappearance of their relatives, about having themselves suffered as a result, about there not having been an effective investigation into the disappearances, and about not having had an effective remedy to challenge effectively their complaints related to the disappearances.

The application was lodged with the European Court of Human Rights on 23 August 2004.

Decision of the Court

Article 2

The Court considered that the relatives of the two disappeared brothers had provided a coherent and consistent account of the abductions, which had been corroborated by the eye-witness account of Ilyas Yansuyev’s wife. The abductors, arriving early in the morning to carry out a search, had acted in a manner similar to a security operation and had spoken Russian without an accent.

The fact that a group of armed men in camouflage uniform, equipped with automatic firearms and, most probably, military vehicles, had been able to move freely through an area under the formal control of the federal forces and secured by check-points and had apprehended several people in their own homes, had strongly supported the applicants’ allegations that those men had been Russian servicemen.

Further drawing inferences from the Russian Government’s failure to submit all documents related to the investigations to which it exclusively had access or to provide any other plausible explanation for the disappearances in question, the Court considered that Ilyas and Isa Yansuyev had to be presumed dead following their unacknowledged detention by Russian servicemen. Accordingly, there had been a violation of Article 2 in respect of both men.

The Court also found that there had been a further violation of Article 2 on account of the authorities’ failure to carry out effective criminal investigations into the circumstances in which the applicants’ relatives disappeared.

Article 3

The applicants, the parents, brother, wives and children of Ilyas and Isa Yansuyev, had suffered distress and anguish as a result of the disappearance of their close relatives and their inability – despite their repeated enquiries – to find out what had happened to them. The manner in which the applicants’ complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment, in violation of Article 3.

Article 5

The Court held that the Yansuyev brothers 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.

Article 13

The criminal investigations into the disappearance of the Yansuyev brothers had been ineffective and the effectiveness of any other remedy that might have existed had consequently been undermined. Consequently there had been a violation of Article 13 in conjunction with Article 2.

Article 38

Lastly, the Court held that, despite repeated requests, Russia had failed to submit the criminal investigation file on the applicants’ case and had therefore breached its obligations under Article 38 § 1 (a) to cooperate with the Court in its task of establishing the facts.

Article 41

The Court held that Russia was to pay Isa and Ilyas Yansuyev’s parents and Isa Yansuyev’s wife 6,000 euros (EUR) each and Ilyas Yansuyev’s children EUR 4,500 each in respect of pecuniary damage. In respect of non pecuniary damage the Court further held that Isa and Ilyas Yansuyev’s brother was to be paid EUR 10,000, their parents EUR 25,000 each, Ilyas Yansuyev’s children EUR 15,000 each and Isa Yansuyev’s wife EUR 30,000. EUR 8,000 was to be paid respect of costs and expenses.

1 comment:

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