CASE OF IMAKAYEVA v. RUSSIA
(Application no. 7615/02)
9 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Imakayeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 19 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The facts
1. Disappearance of the applicant's son
2. Investigation into the disappearance of Said-Khuseyn Imakayev
3. Disappearance of the applicant's husband
4. Investigation into the disappearance of Said-Magomed Imakayev
“Before the initiation of this criminal case, in the course of examination and initial investigative actions no facts that Mr Said-Magomed Imakayev was detained by servicemen of Federal Forces were obtained. Mr Said-Magomed Imakayev was not conveyed to law machinery bodies or institutions of Penalty Execution System and he is not being kept there now. Moreover, law machinery bodies do not have grounds for his detention. ...
Shalinskiy district of Chechen Republic (and the village of Novye Atagi in particular) is an area of active criminal activities of terrorist and extremist organisations that commit crimes with a view to discredit Federal Forces in Chechen Republic using camouflage uniforms and motor vehicles that are similar to uniforms and vehicles used by servicemen and employees of law machinery bodies in Chechen Republic. Along with other crimes, illegal armed formations perpetrate abduction and kidnapping of persons who live or stay in Chechen Republic. In this connection the main version as regards this criminal case is kidnapping of Mr Said-Magomed Imakayev by members of one of the terrorist organisations acting in Chechen Republic and using an outfit of servicemen of Federal Forces with a view to disguise”.
5. Questioning of the applicant
6. Requests for the investigation files
“A wide range of investigative actions have been carried out in the mentioned criminal case, many possible eye-witnesses of the crime scene were identified. The major part of them are military servicemen and at present have moved out from the territory of Chechen Republic to other regions of the Russian Federation. The relevant investigative commissions were forwarded to places of their whereabouts. A part of the commissions have been executed and an additional [time] is required to complete the others”.
B. Documents submitted by the parties
1. Documents from the investigation file no. 23001
2. Documents from the investigation file no. 36125
3. Relevant information submitted within application no. 29133/03
II. RELEVANT DOMESTIC LAW
1. The Code of Criminal Procedure
2. The Suppression of Terrorism Act
Section 3. Basic Concepts
“For purposes of the present Federal Law the following basic concepts shall be applied:
... 'suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities;
'counter-terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
'zone of a counter-terrorist operation' shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...”
Section 13. Legal regime in the zone of an anti-terrorist operation
“1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled:
... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification;
(3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;
(4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health;
(5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...”
Section 15. Informing the public about terrorist acts
“...2. Information that cannot be released to the public includes:
(1) information disclosing the special methods, techniques and tactics of an antiterrorist operation; ...
(4) information on members of special units, officers of the operational centre managing an antiterrorist operation and persons assisting in carrying out such operation.
Section 21. Exemption from liability for damage
In accordance with the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
3. The State Secrets Act (Law no. 5485-1 of 21 July 1993)
I. ESTABLISHMENT OF FACTS
1. General principles
2. Application in the present case
(a) As regards Said-Khuseyn Imakayev
(b) As regards Said-Magomed Imakayev
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
A. The alleged failure to protect the right to life of Said-Khuseyn Imakayev
1. Arguments of the parties
2. The Court's assessment
“... where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue arises under Article 3 of the Convention .... In the same vein, Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities.... Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee's fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody...
In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. In this respect the Court considers that this situation gives rise to issues which go beyond a mere irregular detention in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention....”
B. The alleged inadequacy of the investigation into Said-Khuseyn Imakayev's abduction
1. Arguments of the parties
2. The Court's assessment
(a) General considerations
(b) Application in the present case
C. The alleged failure to protect the right to life of Said-Magomed Imakayev
D. The alleged inadequacy of the investigation into Said-Magomed Imakayev's abduction
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
1. Submissions of the parties
2. The Court's assessment
V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 2, 3, 5 AND 8 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
VIII. OBSERVANCE OF Articles 34 and 38 § 1 (a) of the convention
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
“1. If the Court declares the application admissible, it shall
(a) pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities.”
A. As regards the submission of the documents
B. As regards the hindrance of the right to individual petition
IX. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. Pecuniary damage
2. Non-pecuniary damage
B. Costs and expenses
EUR 500 for the preparation of the initial application in relation to her son's disappearance;
EUR 1,475 for the preparation of the initial application in relation to her husband's disappearance;
EUR 2,250 for the preparation of full applications in respect of the disappearance of the applicant's son and husband;
EUR 3,400 for the preparation of additional submissions;
EUR 1,775 for the preparation of the applicant's reply to the Government's memorandum;
EUR 825 in connection with the preparation of additional correspondence with the ECHR;
EUR 2,300 in connection with the preparation of the applicant's response to the ECHR decision on admissibility;
EUR 1,850 in connection with the preparation of legal documents submitted to the domestic law-enforcement agencies;
EUR 1,006 for administrative costs (7% of legal fees);
EUR 378 for international courier post to the ECHR.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 20,000 (twenty thousand euros) in respect of pecuniary damage;
(ii) EUR 70,000 (seventy thousand euros) in respect of non-pecuniary damage;
(iii) EUR 9,114 (nine thousand one hundred and fourteen euros) in respect of costs and expenses, to be paid to the applicant's representatives' bank account in the Netherlands;
(iv) any tax that may be chargeable on the above amounts.
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 9 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
1 The application was subsequently dealt with in the name of Mrs Imakayeva.
1 Their relatives later applied to the European Court of Human Rights and their applications are registered under no. 29133/03, Utsayeva and Others v. Russia.
1 The applicant informed the Court that Mr Dakayev had died in October 2003.