This ECHR judgment did not bring anything new to the Court’s case-law. In its findings the Court applied the same approach as in other cases concerning Chechnya, as well as in cases against the UK and Turkey related to human rights violations committed by the security forces during their fight against terrorism and illegal armed groups.
As in its previous judgments relating to Chechnya, the Court did not challenge the lawfulness of the Russia’s fight against illegal armed groups, but rather, implied that Russia’s authorities must respect human rights granted by the Convention even during the fight against terrorism.
The ECHR unanimously found that Russia violated Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy) of the Convention. Below is the detailed analysis of the ECHR’s findings.
Violation of Article 2 of the Convention:
The applicant claimed that Russia violated Article 2 of the Convention based on two grounds: first, the agents of Russian security forces had allegedly killed her son and, second, the domestic authorities had not conducted an effective investigation into this crime.
The ECHR sustained the applicant’s claims. The Court’s reasoning is stated below.
A. Alleged violation of the applicant’s right to life
1. First, the ECHR found that the burden of proof rests with the Russian authorities to provide “satisfactory and convincing explanation” why the applicant’s complaint should be dismissed. The Court supported this conclusion by the following reasons: (i) the applicant’s son was detained on suspicion of several crimes, and thus he was under the control of Russian authorities; (ii) the documents related to the detention of the applicant’s son were in exclusive possession of the Russian authorities; (iii) the applicant did not have access to the relevant investigative documents, since she was not granted victim status due to the authorities’ choice not to open a separate criminal case concerning her son’s disappearance; and (iv) in such circumstances “strong presumptions of fact will arise in respect of injuries and death occurring during that detention.”
2. Further, the applicant furnished the Court with written statements of a number of persons who had witnessed her son’s arrest, his subsequent departure with an OMON officer from the applicant’s house, and later had learned that this officer had taken the applicant’s son and delivered him to other security officials who then used force against him. The arrest of the applicant’s son by Russian state agents was also confirmed by the certificate of the District Department for Internal Affairs.
3. The above mentioned evidence was not disputed by the Russian Government. Moreover, despite the ECHR’s requests, the Russian Government also failed to provide the Court with most of the documents related to the investigation into the disappearance of the applicant’s son, without explaining the reasons for this. Therefore, the Court drew inferences from the Russian Government’s conduct, and found that the applicant had proved beyond reasonable doubt that her son had been abducted by Russian state agents and then had disappeared.
4. The Court also found that the applicant’s son must be presumed dead following his unacknowledged detention by state agents. The Court based this conclusion on the fact that (i) in the context of the Chechen conflict, unacknowledged detention by unidentified state agents may be life-threatening, and (ii) the Russian Government did not submit any explanation as to what had happened to the applicant’s son after his arrest.
5. Having established the applicant’s presumed death, the Court also acknowledged that, in certain circumstances set out in Article 2 of the Convention, deprivation of life may be justified. However, since the Russian Government failed to provide any justification in respect to any use of lethal force by their agents, the Court found the Russian Government liable for the presumed death of the applicant’s son.
B. Alleged inadequacy of the investigation into the applicant’s son abduction and disappearance
According to the ECHR’s case-law Article 2 of the Convention also requires an effective official investigation in cases of deprivation of life as a result of the use of force. The Court found the investigation conducted by the Russian authorities into the applicant’s son disappearance ineffective due to the following reasons:
1. It took investigative authorities more than three months after they had received the applicant’s complaint to react to it, to order the first investigative steps, and to interview the applicant. Given the presumed threat to the life of the applicant’s son, the Court stated that “crucial action has to be taken in the first days after the event.”
2. A number of crucial investigative steps were not taken at all. Thus, the investigators (i) did not make any attempts to interview an OMON officer, (i) did not take any steps to identify and interview the eyewitnesses to the arrest and abduction of the applicant’s son, and (iii) did not take any steps to verify the information contained in the certificate issued by the head of the District Department for Internal Affairs confirming the arrest of the applicant’s son.
3. The investigation has been “repeatedly suspended and resumed and plagued by inexplicable delays and omissions,” and “has been pending for many years with no tangible results.”
4. The Russian Government did not provide any explanation as to the above shortcomings in the investigation of the disappearance of the applicant’s son.
Violation of Article 3 of the Convention:
The applicant alleged that she endured mental suffering due to her son’s disappearance and the failure of the Russian authorities to investigate this case properly. The Court sustained this claim based on the following grounds:
1. According to the Court’s case-law, close relatives of the abductees can be victims of the violation of Article 3. The essence of such violation mainly “concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention.”
2. Thus, the applicant has not had any news of her son for more than six years. Despite her numerous enquiries and requests, the Russian authorities has not given her “any plausible explanation or information” about what had happened to her son after his detention, rather their responses “mostly denied State responsibility for her son’s arrest or simply informed her that the investigation was ongoing.”
3. Based on such reaction and attitude of the Russian authorities to the applicant’s requests, the Court found the Russian Government liable for violation of Article 3 of the Convention.
Violation of Article 5 of the Convention:
The applicant alleged that her son had been detained in violation of the guarantees stated in Article 5 of the Convention. The Court sustained this claim, providing the following reasoning:
1. The detention of the applicant’s son was unacknowledged and there is no detention record or official information about “his subsequent whereabouts or fate.” In the Court’s view “this fact in itself must be considered a most serious failing, since it enables 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.”
2. The Russian authorities did not take prompt and effective measures to safeguard the applicant’s son against the risk of disappearance.
3. Thus, the Court found that the applicant’s son had been held in unacknowledged detention without any of the safeguards contained in Article 5.
Violation of Article 13 of the Convention:
The applicant alleged that she had been deprived of effective remedies with respect to the above violations. The court supported the applicant’s claims based on the following grounds:
1. A criminal investigation into the abduction and disappearance of the applicant’s son has been ineffective.
2. Furthermore, the Court was not persuaded that the applicant could have effectively challenged any acts or omissions of the investigating authorities before a court, since she had no access to the case file and was not kept properly informed of the progress in the investigation.
The Russian authorities’ response to Chechnya cases:
To date there are approximately 163 judgments involving Chechnya that have found violations of Art 2,3, 5, 6, 8, 13 of the Convention by Russia. These judgments relate to disappearances, unacknowledged detentions, unlawful killings, torture and ill-treatment, destruction of property, and the inadequacy of official investigations conducted by the Russian authorities.
In order to improve the situation with the human rights in Chechnya, the Council of Europe organized bilateral consultations with the Russian authorities dedicated to such issues as the effectiveness of domestic investigations, victim’s rights in the criminal proceedings and remedies against violations of their rights by investigators, to guarantees against disappearances and ill-treatment, and to the use of force in anti-terrorist operations.
As a result of such bilateral consultations the Russian Government adopted individual and general measures aimed at preventing new and similar violations of the human rights in Chechnya in the future. Thus, according to the latest information document of the Committee of Ministers the Russian Government has adopted, inter alia, the following measures with respect to the situation in Chechnya:
1. A reform was introduced that created an Investigating Committee. One of its main functions is to analyze the ECHR judgments concerning the anti-terrorist operation in Chechnya and examine the investigations’ shortcomings revealed by the Court. The Investigating Committee brings these shortcomings to the attention of the investigators conducting the cases which give rise to the applications to the Court.
2. In 2008 a Special Investigating Unit was set up within the Directorate of the Investigating Committee in the Chechen Republic. Its main function is to investigate cases which gave rise to applications to the ECHR. Among such cases are those involving alleged crimes committed by persons dressed in camouflage or with firearms or military equipment. The quality of investigations performed by the Special Investigating Unit is supervised by the Special Supervising Unit that was set up within the Main territorial Office of the Investigating Committee in Chechen Republic.
3. Based on the experience of the Historical Enquiries Team set up by the United Kingdom, the Russian Government decided to prepare and to send to the victims a questionnaire. Its main purpose is to find out if there were any violations of domestic legislation and how to improve communication between the victims and the Russian authorities. In addition, the Council of Europe organized a study visit for the members of the Russian Investigating Committee to the office of the Historical Enquiries Team in Northern Ireland. As a result of such visit Russian investigators had an opportunity to study investigation methodology of cases involving anti-terrorism operations and how to contact the victim’s families.
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