CASE OF MEDOVA v. RUSSIA
(Application no. 25385/04)
15 January 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 Medova 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 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Capture and detention of Mr Adam Medov
1. The applicant’s account
2. The Government’s account
“In the evening of 17 June 2004 police officers stopped two cars at the “Volga-20” stationary road checkpoint, located on federal route “Kavkaz”, near the administrative border of the Chechen Republic. The six men sitting in the two cars refused to produce their documents. In this connection they were brought to the Sunzhenskiy [ROVD], where four of the above-mentioned six men introduced themselves as officers of the Department of the [FSB] in the Chechen Republic and produced their documents. The highest ranking officer of the group, Mr Beletskiy V.V., gave the following explanation of what had happened. He said that on 15 June 2004 in Ingushetia they had apprehended two men, Medov A.A. and [K.], who were wanted on suspicion of having committed grave crimes, and that they were taking them to the Chechen Republic. Mr Beletskiy produced documents that showed the lawfulness and validity of Mr Medov’s and [K.’s] arrest and detention. After that the above-mentioned officers ... and the two detained persons left for the Chechen Republic.
According to information provided by the Prosecutor’s Office of the Chechen Republic, officers of the law-enforcement bodies of the Chechen Republic had not apprehended Mr Medov and there was no information that the latter had been brought to the territory of the Chechen Republic. According to the Department of the FSB in the Chechen Republic, Mr Beletskiy V.V. was not on the staff of that Department. Moreover, the Department did not have any information regarding Mr Medov’s apprehension and whereabouts.
On 22 July 2004 the Public Prosecutor’s Office of the Republic of Ingushetia initiated a criminal case in respect of an offence defined by Article 126 § 2 (a) (abduction by a group of persons after preliminary collusion) in connection with Mr Medov’s and [K.’s] disappearance.
At present Mr Medov’s and [K.’s] location is not established. Mrs Medova’s allegations that her husband is being detained at the Khankala military base have not proved to be true”.
B. Investigation into the abduction
1. Applications to State authorities and courts
“In accordance with [the Code of Criminal Procedure] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation. Accordingly, [the investigator’s] refusal to familiarise the victim with the materials of the case file was lawful.”
2. Progress of the investigation
3. Request for information
C. Alleged intimidation of the applicant
1. The applicant’s account
2. The Government’s account
II. RELEVANT DOMESTIC LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
II. ESTABLISHMENT OF THE FACTS
A. The parties’ submissions
B. Article 38 § 1 (a) and consequent inferences drawn by the Court
C. The Court’s evaluation of the facts
1. Abduction of Mr Adam Medov
2. Whether Mr Adam Medov may 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. Alleged violation of the right to life of Mr Adam Medov
1. The parties’ submissions
2. The Court’s assessment
B. The alleged inadequacy of the investigation into the abduction
1. The parties’ submissions
2. The Court’s assessment
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 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.”
133. 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 failure to comply with the State’s positive obligation under Article 5 of the Convention, 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. ALLEGED FAILURE TO COMPLY WITH ARTICLE 34 OF THE CONVENTION
134. Having regard to the incidents which allegedly took place in 2005, the applicant complained that the respondent Government had failed to comply with its obligations under Article 34, the relevant parts of which provide as follows:
“The Court may receive applications from any person ... claiming to be the victim of a violation ... of the rights set forth in the Convention ... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
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.”
B. The applicant’s request for an investigation
C. Costs and expenses
(a) EUR 3,000 for fifty hours of research in Chechnya and Ingushetia at a rate of EUR 60 per hour;
(b) EUR 3,000 for fifty hours of drafting legal documents submitted to the Court and the domestic authorities at a rate of EUR 60 per hour by the lawyers in Moscow;
(c) GBP 500 for five hours of legal work by a United Kingdom-based lawyer at a rate of GBP 100 per hour;
(d) GBP 138,25 for translation costs, as certified by invoices;
(e) GBP 175 for administrative and postal costs incurred by the London office; and
(f) EUR 420 for administrative and postal costs incurred by the Moscow office.
D. Default interest
FOR THESE REASONS, THE COURT
6. Holds unanimously that there has been no violation of Article 3 of the Convention in respect of the alleged ill-treatment of Mr Adam Medov;
8. Holds unanimously that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;
9. Holds unanimously that there has been no violation of Article 13 of the Convention in conjunction with Article 3 of the Convention;
10. Holds unanimously that no separate issues arise under Article 13 of the Convention in conjunction with Article 5 of the Convention;
11. Holds unanimously that there has been no failure to comply with the State’s obligation under Article 34 of the Convention in respect of the alleged intimidation of the applicant;
(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 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;
(ii) EUR 6,420 (six thousand four hundred and twenty euros) and GBP 813,25 (eight hundred and thirteen pounds and twenty-five pence) in respect of 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;
(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 15 January 2009, 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 partly dissenting opinion of Judge Dean Spielmann is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE SPIELMANN
I voted against point 13 of the operative part because I am of the opinion that the applicant’s request for an investigation in line with Convention standards (see paragraph 142 of the judgment) should have been granted by the Court under Article 41 of the Convention.
This request concerns an investigation into the disappearance of Mr Adam Medov. In paragraph 112 of the judgment, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Adam Medov, in breach of Article 2 in its procedural aspect.
In paragraphs 105 to 111, the Court identifies multiple shortcomings in the investigation.
I am of the opinion that many of these shortcomings (for example those relating to the failure to question Mr B. (paragraph 106) and to the information about the numerous requests or other measures (paragraph 107) might still be redressed in the particular circumstances of this case if an investigation were conducted even after so many years.
Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.
It would therefore have been preferable to grant the applicant’s request.
1 There is clearly a clerical error in the date of the detention.