CASE OF DZHAMBEKOVA AND OTHERS v. RUSSIA
(Applications nos. 27238/03 and 35078/04)
12 March 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 Dzhambekova 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 17 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
Ms Zaynap Khadushovna Dzhambekova, born in 1959;
Mr Adlan Lukayevich Dzhambekov, born in 1953;
Ms Markha Adlanovna Dzhambekova, born in 1998;
Mr Islam Adlanovich Dzhambekov, born in 1990;
Ms Aminat Dodayevna Ependiyeva, born in 1949;
Mr Ali Magomedovich Soltymuradov, born in 1992;
Ms Toita Dodayevna Soltymuradova, born in 1954;
Ms Aysha Magomedovna Soltymuradova, born in 1997;
Ms Madina Magomedovna Soltymuradova, born in 1990;
Mr Uvays Soltymuradovich Soltymuradov, born in 1930;
Ms Zulpa Uvaysovna Soltymuradova, born in 1958;
Ms Umisat Dodyevna Nakayeva, born in 1965;
Ms Ayza Shaidovna Tokayeva, born in 1966;
Ms Zara Baidovna Tatariyeva, born in 1940;
Ms Kheda Rezvanovna Tatariyeva, born in 2000;
Ms Zura Shamsudinovna Tatariyeva, born in 1967.
Ms Marina Dukvakhayevna Islamova, born in 1980.
The applicants in application no. 35078/04 are:
Vakha Salmanovich Visaitov, born in 1944;
Zulay Sayd-Khasanovna Magomadova, born 1949.
A. The applicants' relatives' arrest
1. Apprehension of Imran Dzhambekov
2. Apprehension of Magomed Soltymuradov
3. Apprehension of Rizvan Tatariyev
4. Apprehension of Sharpudi Visaitov
B. The search for Imran Dzhambekov, Magomed Soltymuradov, Rizvan Tatariyev and Sharpudi Visaitov and the investigation
1. Search for Imran Dzhambekov
2. Search for Magomed Soltymuradov
3. Search for Rizvan Tatariyev
4. Search for Sharpudi Visaitov
5. Summary of the investigations as submitted by the applicants
C. Information submitted by the Government about the investigation
1. Investigation into the kidnapping of Imran Dzhambekov
2. Investigation into the kidnapping of Magomed Soltymuradov
3. Investigation into the kidnapping of Rizvan Tatariyev and Sharpudi Visaitov
4. Information relating to all three investigations
D. Detention of the first, fifth and fourteenth applicants and subsequent events
1. Events of 11-15 December 2002
2. Subsequent proceedings
II. RELEVANT DOMESTIC LAW
III. RELEVANT INTERNATIONAL DOCUMENTS RELATING TO POLICE CUSTODY
“42. Custody by the police is in principle of relatively short duration... However, certain elementary material requirements should be met.
All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”
The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47).
“25. Similar to the situation observed during previous visits, none of the district commands (RUVD) and local divisions of Internal Affairs visited were equipped with facilities suitable for overnight stays; despite that, the delegation found evidence that persons were occasionally held overnight at such establishments... The cells seen by the delegation were totally unacceptable for extended periods of custody: dark, poorly ventilated, dirty and usually devoid of any equipment except a bench. Persons held overnight were not provided with mattresses or blankets. Further, there was no provision for supplying detainees with food and drinking water, and access to a toilet was problematic.
The CPT reiterates the recommendation made in its report on the 1999 visit (cf. paragraph 27 of document CPT (2000) 7) that material conditions in, and the use of, cells for administrative detention at district commands and local divisions of Internal Affairs be brought into conformity with Ministry of Internal Affairs Order 170/1993 on the general conditions and regulations of detention in administrative detention cells. Cells which do not correspond to the requirements of that Order should be withdrawn from service.
Further, the Committee reiterates the recommendation made in previous visit reports that administrative detention cells not be used for accommodating detainees for longer than 3 hours.”
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. Arguments of the parties
B. The Court's assessment
II. THE COURT'S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS
A. The parties' arguments
1. The applicants
2. The Government
(a) Concerning the abduction of Imran Dzhambekov
(b) Concerning the abduction of Magomed Soltymuradov
(c) Concerning the abduction of Rizvan Tatariyev and Sharpudi Visaitov
B. Article 38 § 1 (a) and consequent inferences drawn by the Court
C. The Court's evaluation of the facts
1. General principles
2. Whether the applicants' relatives were detained by State agents
(a) The abduction of Imran Dzhambekov
(b) The abduction of Magomed Soltymuradov
(c) The abduction of Rizvan Tatariyev and Sharpudi Visaitov
3. Whether Imran Dzhambekov, Magomed Soltymuradov, Rizvan Tatariyev and Sharpudi Visaitov can be presumed dead
III. 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 Imran Dzhambekov, Magomed Soltymuradov, Rizvan Tatariyev and Sharpudi Visaitov
B. The alleged inadequacy of the investigation of the abductions
1. Investigation into the abduction of Imran Dzhambekov
2. Investigation into the abduction of Magomed Soltymuradov
3. Investigation into the abduction of Rizvan Tatariyev and Sharpudi Visaitov
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ”
V. 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.”
VI. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
”In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal... ”
VII. 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. ”
VIII. 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.”
IX. ALLEGED VIOLATION OF ARTICLE 3 IN RESPECT OF THE FIRST AND FIFTH APPLICANTS
X. ALLEGED VIOLATION OF ARTICLE 5 IN RESPECT OF THE FIRST AND FIFTH APPLICANTS
A. The Government's preliminary objection
B. Whether the first and the fifth applicants are still victims of the violation alleged
C. The parties' submissions
D. The Court's assessment
40. The main issue to be determined in the present case is whether the disputed detention was 'lawful', including whether it complied with 'a procedure prescribed by law'. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness ...
41. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with.
42. A period of detention will in principle be lawful if it is carried out pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily retrospectively affect the validity of the intervening period of detention. For this reason, the Strasbourg organs have consistently refused to uphold applications from persons convicted of criminal offences who complain that their convictions or sentences were found by the appellate courts to have been based on errors of fact or law.”
XI. 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
(i) EUR 10,000 to the sixth, eighth, ninth and thirteenth applicants jointly;
(ii) EUR 11,000 to the fourteenth, fifteenth and seventeenth applicants jointly; and
(iii) EUR 5,000 to the eighteenth and nineteenth applicants jointly.
B. Non-pecuniary damage
(i) EUR 35,000 to the first, second, third and fourth applicants jointly;
(ii) EUR 35,000 to applicants five to thirteen jointly;
(iii) EUR 35,000 to applicants fourteen to seventeen jointly;
(iv) EUR 35,000 to the eighteenth and nineteenth applicants jointly; and
(v) EUR 10,000 to the first and fifth applicants each.
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
6. Holds that there has been a violation of Article 3 of the Convention in respect of all the applicants, except applicants ten and eleven, on account of their moral suffering;
9. Holds that no separate issues arise under Article 8 of the Convention in respect of the searches of the applicants' homes;
10. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Article 2 of the Convention;
11. Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;
(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, save in the case of the payment in respect of costs and expenses:
(i) EUR 10,000 (ten thousand euros) to the sixth, eighth, ninth and thirteenth applicants jointly;
(ii) EUR 11,000 (eleven thousand euros) to the fourteenth, fifteenth and seventeenth applicants jointly;
(iii) EUR 5,000 (five thousand euros) to the eighteenth and nineteenth applicants jointly;
(iv) EUR 35,000 (thirty-five thousand euros) to the first, second, third and fourth applicants jointly;
(v) EUR 35,000 (thirty-five thousand euros) to applicants five to thirteen, jointly;
(vi) EUR 35,000 (thirty-five thousand euros) to applicants fourteen to seventeen jointly;
(vii) EUR 35,000 (thirty-five thousand euros) to the eighteenth and nineteenth applicants jointly;
(viii) EUR 10,000 (ten thousand euros) to the first and fifth applicants each;
(ix) EUR 14,653 (fourteen thousand six hundred and fifty-three euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, 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 12 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis