Thursday, 2 December 2010

ECHR Says Russia Responsible for Disappearance and Presumed Death A Chechen Man

In a 2 December Chamber judgment in the case Dzhabirailova and Dzhabrailova v. Russia (application no. 15563/06), which is not final , the European Court of Human Rights held, unanimously, that there had been human rights violations.

The case concerned the applicants’ allegation that Isa Aytamirov was abducted and killed by Russian servicemen during an unacknowledged security operation in February 2003 in Grozny.

Principal facts

The applicants are Amynt Dzhabirailova and Zaynab Dzhabrailova, the mother and aunt of Isa Aytamirov, born in 1983. They lived in Grozny (the Chechen Republic) at the relevant time.

The applicants claimed that Isa was abducted in the early hours of 19 February 2003 while sleeping at his aunt’s home in Novy Tsentoroy - when the village was under curfew - wearing only his underwear and barefoot, by masked intruders in camouflage uniforms. They have had no news of him since. They maintained that the abductors were part of a group of around 30 Russian servicemen travelling in armoured personnel carriers (APCs) and UAZ vehicles. Isa’s aunt stated that she saw him being taken away in an APC, before she was knocked unconscious by a soldier with a rifle butt. She was injured and her leg was subsequently put in a splint.

The applicants reported the incident to various official bodies, including the local Department of the Interior and the Grozny District Prosector’s Office, and requested help and information to enable them to find Isa.

On 15 June 2005 the applicants were informed that an investigation had been opened on 20 February 2003 into Isa’s abduction. In a letter dated 25 September 2008 the relevant investigating department of the Prosecutor’s office of the Chechen Republic notified Isa’s aunt that the investigation had been suspended as of that day on the ground that the perpetrators had not been identified.

The Russian Government submitted that on 19 February 2003 Isa Aytamirov was kidnapped and his aunt injured by unidentified armed men travelling in three APCs and two UAZ vehicles. They maintained that there was no proof that servicemen were responsible. Also, the investigation had been adequate, prompt and conducted by an independent authority.

Complaints, procedure and composition of the Court

Relying on Articles 2, 3, 5 and 13, the applicants complained about: the abduction, unlawful detention and ultimate disappearance of their close relative; having themselves suffered as a result; the lack of an effective investigation into his disappearance (including no inspection of the crime scene or questioning of State agents); and, having no effective remedy to complain effectively about his disappearance.

The application was lodged with the European Court of Human Rights on 5 April 2006.

Decision of the Court

Article 2

Noting that the Russian Government had refused to produce most of the documents from the case file, the Court judged their vague reference to “legally protected interests” of unspecified subjects utterly unconvincing and reiterated that Article 161 of the Russian Criminal Procedure Code could not justify the withholding of key information requested by the Court.

The Court considered that the applicants presented a coherent, convincing and consistent account of Isa Aytamirov’s abduction, supported by witness statements.

The fact that a large group of armed men in uniforms, driving in a convoy of military vehicles, including three APCs, were able to pass freely through checkpoints during curfew hours and that they proceeded to arrest the applicants’ relative in a manner similar to that of State agents, strongly supported the applicants’ allegation that they were State servicemen and that they were conducting a special operation in Novy Tsentoroy on the night of Isa Aytamirov’s abduction.

The applicants had made a prima facie case that their relative was abducted by State servicemen. Drawing inferences from the Government’s failure to submit necessary documents, which were in their exclusive possession, or to provide another plausible explanation for the events in question, the Court found that Isa Aytamirov was arrested on 19 February 2003 by State servicemen during an unacknowledged security operation.

Also, there had been no news of him since, no record of any detention and no explanation from the Russian Government concerning what had happened to him after his arrest. The Court reiterated that the detention of a person, in the context of the conflict in the Chechen Republic, by unidentified servicemen without any subsequent acknowledgment of the detention, could be regarded as life-threatening. The absence of Isa Aytamirov or of any news of him for more than seven years supported that assumption. Isa Aytamirov had therefore to be presumed dead following his unacknowledged detention by State servicemen, in violation of

Article 2.

The Court also found that there had been a further violation of Article 2 on account of the authorities’ failure to carry out an effective criminal investigation into the circumstances of his disappearance.

Article 3

Isa’s aunt provided a consistent account of her ill-treatment, confirmed by witnesses. Drawing inferences from the Government’s refusal to provide the medical documents attesting to those injuries, which were in their exclusive possession, the Court concluded that she had been beaten and injured by Isa’s abductors, in a way that was “inhuman” and “degrading”, in violation of Article 3.

In addition, the investigation into her allegations of ill-treatment was not thorough, adequate or effective, in a further violation of Article 3.

The Court further noted that the applicants were close relatives of a person who had disappeared and that Isa’s aunt had witnessed his abduction. For more than seven years they had not had any news of their missing relative. During that period, and despite their efforts, they had never received any plausible explanation or information about the fate of their relative. There had therefore been a third violation of Article 3 concerning the inhuman treatment of both applicants.

Article 5

The Court found that Isa Aytamirov was held in unacknowledged detention without any of the safeguards contained in Article 5, in a particularly serious violation of Article 5.

Article 13

The Court held that there had been a violation of Article 13 in conjunction with Article 2 because the criminal investigation into Isa’s disappearance had been ineffective and the effectiveness of any other remedy that might have existed had consequently been undermined. (No separate issue arose in respect of Article 13 read in conjunction with Article 3.)

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that Russia was to pay 5,000 euros (EUR) to Isa Aytamirov’s mother, and EUR 5,000 to his aunt, in respect of pecuniary damage; and, EUR 40,000 to his mother, and EUR 25,000 to his aunt, in respect of non-pecuniary damage. The Court awarded the applicants EUR 5,500, jointly, in respect of costs and expenses.

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