CASE OF LYANOVA AND ALIYEVA v. RUSSIA
(Applications nos. 12713/02 and 28440/03)
2 October 2008
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 Lyanova and Aliyeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 September 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Detention of the applicants' sons
“I can report that during the night of 28 to 29 June 2000, [a group of servicemen], together with a reconnaissance unit of Obron-8, staged an ambush in Sadovaya Street, where explosive devices had previously been found, in order to prevent the planting of mines and explosive devices.
At about 11.30 p.m. the group detained three persons covertly moving in the area. A search revealed a number of components and parts of explosive devices, notably:
a warhead from a 152-mm shell with an opening for a detonator;
a round for a portable anti-tank gun, also prepared as an explosive device;
One of the detainees attempted to flee. The detainees had no identity documents in their possession. They were taken to Obron-8 headquarters where they were brought to the special [counter-intelligence] unit for questioning. One of the detainees resembled the description of a rebel fighter (“boyevik”) who had attacked roadblock no. 17 on 24 June 2000 using a flamethrower. ... On the morning of 29 June 2000 the individuals concerned were taken to “Pamir” by the servicemen of Obron-8. No shots were fired during their arrest.”
B. The search for the applicants' sons and the authorities' replies
C. Official investigation
“Criminal case no. 12113 was opened on 8 August 2000... into abduction of [T.], M. A. Lyanov and I. K. Dombayev in the night of 28-29 June 2000 around 12 midnight in First Sadovaya Street in Grozny... [by] unidentified persons in camouflage uniform...
Commander of [the Pskov OMON], [P. I.], who was questioned on this subject, submitted that on 28 June 2000 at around 9 p.m. servicemen of Obron-8 arrived at their location and informed them about the need to lie in ambush in Sadovaya Street where members of illegal armed groups used to install explosive devices... most frequently. ...[E]ight servicemen proceeded to the street indicated. There they split into two groups of four, concealed themselves and set up an ambush on both sides of the street... In a while a group of three young men passed by. Approximately one minute later the second group informed them by the portable radio transmitter that they had apprehended those young men. When [P. I.] approached them with his group, he noticed the three young men lying on the ground with an artillery shell... and a wire reel near them. After the arrest they had taken the young men to the Obron-8 headquarters and transferred [them] to the head of intelligence of Obron-8 whose name was Volodya. The latter told them that he had reported the arrest to Khankala. The apprehended [persons] did not have identification papers with them. [P. I.] had no information about their religious affiliations.
Similar statements were made by officers of [the Pskov OMON] [V.], [A.] and [K-v].
According to the report of [Yu. G.], the commander of [the Pskov OMON], ... in the night of 29 June 2000 officers of [the Pskov OMON] together with Obron-8 in the course of a special operation in Sadovaya Street apprehended three persons who had with them the components of an explosive device. They took the persons to Obron-8 headquarters and transferred [them] to a special unit. In the morning of 29 June 2000 [officers of] Obron-8 took [the apprehended persons] to “Pamir”... From the report of the head of Obron-8 headquarters [Yu. G.] knew that the apprehended persons had been transferred to Khankala.
The head of Obron-8 headquarters, [Kal-v.], when questioned denied that his servicemen had apprehended and sent to Khankala anybody in the night of 29 June 2000. [He also denied that] an ambush in Sadovaya Street had been set up that night.
[The second applicant submitted that]... official of the Leninskiy VOVD [temporary office of the interior], [K.], had told them that their sons had been apprehended by servicemen of Obron-8 and taken to Khankala. [K.] also handed over to them the guitar of I. Dombayev which, according to him, had been found at Obron-8 headquarters.
[T.'s mother and the first applicant] made similar statements.
[K.] submitted that on 30 June 2000 he formed a part of ... a group that searched for Dombayev and others who had disappeared in the night of 29 June 2000. ...[T]hey established that on 29 June 2000 Islam Dombayev, Murad Lyanov and [T.] had been detained by officers of [the Pskov OMON] and transferred to servicemen of Obron-8. In the beginning of July [K.] seized from private [O.] a guitar which belonged to I. Dombayev and handed it over to his mother. The latter recognised her son's guitar. Officers of the OMON explained to [K.] that the young men had been apprehended in Sadovaya Street [because they had an] explosive device. The servicemen refused to provide any explanations in this respect.
Officers of [the Pskov OMON] [A.], [K-v], [V.] and [G-v] confirmed that together with servicemen of... Obron-8 in the night of 28-29 June 2000 they had apprehended three [persons] and taken them to Obron-8 headquarters. They had not known the personal particulars [of the persons concerned], and the apprehended persons had not had their identification papers with them. However, while they were being questioned witness [K-v] noted the surnames of the apprehended persons – [T.], Lyanov and Dombayev. They had learned from the servicemen that the apprehended persons had had an explosive device. They had provided explanations concerning the circumstances of the arrest of three persons in the night of 29 June 2000 to the Grozny Prosecutor's Office...
Witness [G.] (Volodya)... submitted that... since 1998 he had been serving in military unit no. 3723... From June to August 2000 he had been seconded to Grozny as a head of [intelligence unit]. Their unit, [Obron-8] had been located not far from Sadovaya Street... Because of the nature of his post he had always remained at headquarters, had not planned any special operations, and had not previously heard the surnames Dombayev, Lyanov and [T.]...
Taking into account the evidence obtained and having sufficient grounds to believe that servicemen of Obron-8 had been involved in the abduction of Dombayev, [T.] and Lyanov, on 5 November 2000 the Prosecutor's Office of the Chechen Republic transferred the present criminal case to the Prosecutor's Office of military unit no. 20102 for further investigation.
The investigation conducted by the military prosecutor's office established the following.
According to the inspection report of the register of military actions of Obron-8... the entries of 27, 28, 29 and 30 June 2000 contained no information that any persons had been arrested...
According to the extract of the register of military actions of military unit no. 3723 on _8.06 (the year is not indicated, the digit before 8 is missing...), in the course of [an intelligence operation] in Sadovaya Street the mine clearing group had found a mine. The mine was destroyed. A joint operation on passport check had been conducted between 5 and 7 [it is not clear a.m. or p.m.]... Three persons had been apprehended upon suspicion of participation in an illegal armed group.
[Eight servicemen of military unit no. 3723, including [G.], submitted that they did not know anything about the arrest of Dombayev, Lyanov and [T.]. Two of the servicemen added that it had not been within the responsibilities of their unit to effect arrests and that they had not conducted any joint operations with OMON.]
[B.], the commandant of military unit no. 3723's headquarters submitted that from May to August 2000 he had served as a commander of the military operational reserve of military unit no. 3723 in Grozny [VOrez]. The responsibilities of [VOrez] had included accompanying officials of the Ministry of the Interior during passport checks and “sweeping” operations [зачистка]. Effecting arrests had not been within their responsibilities. Every special operation had been organised according to a military instruction from the headquarters in Khankala. The instructions had been kept at [VOrez's archives]. Results of the special operations had been reflected in the register of military actions... Not less than fifteen servicemen had participated in every such operation together with a similar number of officials of the Ministry of the Interior. His servicemen had never taken part in an ambush... [The Pskov OMON] had been located not far from them. [However, [B.'s]] servicemen had never interacted with it. He had never met [Yu. G.]. No OMON officers had ever spent a night at his unit's headquarters. In the end of June 2000 an investigator of the Grozny Prosecutor's Office of Chechen origin and a woman of Chechen origin had arrived at his unit. They had alleged that his servicemen had apprehended three young men on 28 June 2000, which had been proved by a guitar [at unit headquarters]. He offered him access to all the premises of the unit, but they had refused [to examine them]. However, the investigator had seized a guitar from a serviceman [B. did not remember his surname], which, according to the woman, had belonged to her son. According to the serviceman, he had found this guitar in the street in the course of engineering intelligence... [B.'s] servicemen had not arrested anybody with an explosive device on 28-29 June 2000 and had not taken anybody to their headquarters either... After [B.] had seen the report of the commander of [the Pskov OMON] [Yu. G.] concerning the arrest together with servicemen of Obron-8 of three persons in the night of 29 June 2000, [B.] said that the information contained in the report was not accurate.
The inspection report of the register of encrypted telegrams from [VOrez] of military unit no. 3723 contained no information concerning the arrest of three persons by servicemen on 28-29 June 2000 ...
Following the results of the preliminary investigation, on 6 March 2001 the military prosecutor's office suspended the present criminal case... in the part related to involvement in the offence of servicemen of [VOrez] of military unit no. 3723 and on 7 March 2001 transferred the case to the Prosecutor's Office of the Chechen Republic.
In the course of the additional investigation the Grozny Prosecutor's Office instructed the Prosecutor's Office of the Pskov Region to take additional investigative steps with officers of [the Pskov OMON], who had apprehended the applicants' sons, so as to clarify discrepancies between [their] statements and those of Obron-8 servicemen.
Witnesses [P. I.], [Yu. G.] and [D. I.] confirmed their previous statements as well as the fact that on 28-29 June 2000 in Sadovaya Street in Grozny they had arrested together with servicemen of Obron-8 three young men of [Chechen] origin aged between 15 and 20. [Yu. G] also confirmed the contents of his report concerning the arrest in the course of [the operation described].
[Neither the Ministry of the Interior nor other law-enforcement agencies] had any information on the applicants' sons whereabouts. Requests had also been sent to [detention facilities and law-enforcement agencies of other regions], however, it appeared impossible to establish the whereabouts of the disappeared persons. The investigating authorities had no information that the applicants had visited [detention facilities] in the north Caucasian area.
The preliminary investigation in the criminal case had been suspended on numerous occasions, most recently on 26 March 2002, on account of the failure to identify persons to be charged with the offence...
On 14 February 2005 the decision to suspend the investigation... was quashed, the investigation was resumed. ...[A]t present the investigation is under way.”
D. Proceedings against law-enforcement officials
E. Request for information
II. RELEVANT DOMESTIC LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. Arguments of the parties
B. The Court's assessment
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 violation of the right to life of Murad Lyanov and Islam Dombayev
1. Arguments of the parties
2. The Court's assessment
(a) General principles
(b) Establishment of the facts
(c) The State's compliance with the substantive obligation under Article 2
B. The alleged inadequacy of the investigation into the abduction
1. Arguments of the parties
2. The Court's assessment
(a) General principles
(b) The State's compliance with the procedural obligation under Article 2
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”
A. Alleged ill-treatment of the applicants' sons
B. Alleged violation of Article 3 in respect of the applicants
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:...
(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;
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.”
V. 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. ”
VI. ALLEGED VIOLATION OF ARTICLE 13 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.”
139. As regards the applicants' reference to Article 5 of the Convention, the Court notes that according to its established case-law the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention by unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.
VII. OBSERVANCE OF Article 34 and ARTICLE 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;
VIII 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.”
A. Pecuniary damage
B. Non-pecuniary damage
C. The first applicant's request for an investigation
D. Costs and expenses
GBP 566.67 for 5 hours and 40 minutes of legal work by a United Kingdom-based lawyer at a rate of GBP 100 per hour;
GBP 747.80 for translation costs, as certified by invoices; and
GBP 175 for administrative and postal costs.
EUR 1,200 for the preparation of documents submitted to the domestic authorities in relation to the present proceedings;
EUR 8,475 for the preparation of the initial application and subsequent submissions before the Court;
EUR 1,521.57 for translation expenses, as certified by invoices;
EUR 136.80 postal expenses, and;
EUR 677.25 (corresponding to 7% of the legal fees) for administrative costs, such as telephone, fax and e-mail, photocopying and paper expenses and other items.
E. Default interest
FOR THESE REASONS, THE COURT
4. Holds unanimously that there has been no violation of Article 3 of the Convention in respect of the alleged ill-treatment of Murad Lyanov and Islam Dombayev;
8. Holds unanimously that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention;
9. Holds unanimously that there has been no violation of Article 13 of the Convention as regards the alleged violation of Article 3 of the Convention in respect of Murad Lyanov and Islam Dombayev;
10. Holds unanimously that no separate issues arise under Article 13 of the Convention as regards the alleged violations of Article 3 in respect of the applicants and of Articles 5 and 8;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, to each of the applicants in respect of pecuniary damage;
(ii) EUR 35,000 (thirty five thousand euros), plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage to each of the applicants;
(iii) GBP 1,489.47 (one thousand four hundred eighty nine pounds forty seven pence) in respect of the first applicant's costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into her representatives' bank account in the United Kingdom;
(iv) EUR 7,000 (seven thousand euros) in respect of the second applicant's costs and expenses, plus any tax that may be chargeable to the applicant, to be paid into the representatives' bank account in the Netherlands;
(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 2 October 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinion is annexed to this judgment:
(a) partly dissenting opinion of Judge Kovler joined by Judge Hajiyev.
PARTLY DISSENTING OPINION OF JUDGE KOVLER JOINED BY JUDGE HAJIYEV
I am unable to agree with the conclusions of the majority on one point, namely the issue of pecuniary damage.
In some previous cases concerning disappearances in Chechnya the Court routinely made awards in respect of pecuniary damage where the disappeared adult persons were unemployed. The awards were based on the assumption that they would eventually have had some earnings from which the applicants would have benefited (see, among other cases, Imakayeva v. Russia, no. 7615/02, § 213, ECHR 2006 XIII).
It should be noted in this connection that the Constitution of the Russian Federation provides: “Able-bodied children over eighteen years old must take care of disabled parents” (Article 38 part 3). This is a moral imperative laid down as a constitutional norm subject to certain conditions (children over eighteen, disabled parents). The first applicant submitted that her son had been a student aged seventeen and that his brother had been unemployed, but that in the future she would have benefited from his financial support (paragraph 151). The text of the judgment reproduces the second applicant's argument that “although her son had been unemployed at the time of his disappearance as he had been only fifteen years old, according to the regional tradition he was supposed to become the breadwinner for his parents as the youngest son in the family” (paragraph 153). The conclusions of the Court on this issue are thus largely based on assumption and on customary law (“regional tradition”).
The assumption, largely speculative as such, appears to be particularly far-fetched in the present case. As justly noted by the Government (paragraph 154), the applicants' sons were minors, and not only were they not breadwinners, but were themselves dependent on the applicants. The Court indirectly agrees with this argument: “[t]he Court notes that the applicants' sons were unemployed at the time and, being only fifteen and seventeen years old, were dependent on the applicants” (paragraph 155). But it appears that this conclusion is counterbalanced by others, namely that “the applicants' sons were close to coming of age” and “they would eventually [sic!] have had some earnings”...
The award in respect of pecuniary damage on account of the loss of possible future financial support from persons who, being the applicants' dependants, had all their means of subsistence provided by the applicants at the time of their presumed death, runs counter to the logic of civil law. Taken to an extreme, such logic would lead the Court to make awards for
pecuniary damage to parents on account of the expected loss of income of deceased babies as “potential breadwinners”. Furthermore, this approach appears inconsistent with the Court's cases where an award in respect of pecuniary damage has been made to real dependants, including children, of disappeared persons (see, among other cases, Sangariyeva and Others v. Russia, no. 1839/04, §§ 121-129, 29 May 2008).
It is noteworthy that in reducing the initial claim in respect of pecuniary damage (based moreover on the “Ogden tables”!) the Court observes that “[f]urthermore, ... each applicant has other children from whose financial support they must be able to benefit” (paragraph 155).
I am aware that my reasoning could be interpreted as a kind of exercise in cynicism in relation to the real and irreplaceable loss sustained by the applicants. But my position on other issues in this tragic case will vouch for my bona fide intentions.