CASE OF VAKHAYEVA AND OTHERS v. RUSSIA
(Application no. 1758/04)
29 October 2009
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 Vakhayeva and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 8 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
The applicants are Russian nationals and live in Urus-Martan, the Chechen Republic.
A. Arrest and detention of Kazbek Vakhayev
1. The applicants' account
2. The Government's account
B. The search for Kazbek Vakhayev and the investigation
“Further to your application concerning the disappearance of your son, Kazbek Vakhayev, born in 1975, I can inform you that from 1 to 11 August 2000 he was detained in the detention facility of the Urus-Martan VOVD as a vagrant, after which he was released.”
“On 1 August 2000 officers of the Urus-Martan [VOVD] apprehended and brought to the [VOVD] [Mr G.], Kazbek Vakhayev, [Mr Ch.] and Yusup Satabayev pursuant to Decree no. 1815 of the President of the Russian Federation of 2 November 1993 'On Measures for the Prevention of Vagrancy and Mendicancy'.
On 14 August 2000 the detainees were released and sent to their places of residence.
However, to date [the detainees] have not returned to their places of residence, they are being searched for by their relatives and their whereabouts are not established.”
C. Court proceedings concerning the inactivity of investigating authorities
D. The Court's request to submit the investigation file
II. RELEVANT DOMESTIC LAW
“Placement of persons engaged in vagrancy and mendicancy in centres of social rehabilitation is permitted subject to the prosecutor's authorisation, for a term not exceeding ten days.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
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. Alleged violation of Yusup Satabayev's right to life
1. Arguments of the parties
2. The Court's assessment
(a) General principles
(b) Establishment of the facts
(c) The State's compliance with Article 2
B. The alleged inadequacy of the investigation into the abduction
1. Arguments of the parties
2. The Court's assessment
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:...
(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;
(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;
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 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.”
187. As regards the applicant's 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.
VI. OBSERVANCE OF Article 38 § 1 (a) of the convention
“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;
VII. 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. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
6. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
7. Holds that no separate issues arise under Article 13 of the Convention in conjunction with Articles 3 and 5 of the Convention;
8. Holds that there has been a failure to comply with Article 38 § 1 (a) of the Convention in that the Government have refused to submit documents requested by the Court;
(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:
(i) EUR 7,000 (seven 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 the second to seventh 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, to the applicants jointly in respect of non-pecuniary damage;
(iii) EUR 7,550 (seven thousand five hundred and fifty euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the representative's bank account;
(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 29 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis