CASE OF ABDULKADYROVA AND OTHERS v. RUSSIA
(Application no. 27180/03)
8 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 Abdulkadyrova and Others 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 4 December 2008,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
(1) Mrs Nurzhan Supyanovna Abdulkadyrova, born in 1973;
(2) Mr Shamkhan Ayndayevich Dzhabayev, born in 1995;
(3) Mr Zumrat Ayndayevich Dzhabayev, born in 1993;
(4) Ms Kheda Ayndayevna Dzhabayeva, born in 1991.
A. Arrest and detention of Ayndi Dzhabayev
B. Search and investigation into the “disappearance”
“I, the military commander of the Urus-Martan district Colonel G., on 8 September 2002 carried out an administrative investigation concerning the wounding of a serviceman of the military commander's office, senior assistant to the head of the intelligence unit Captain I. The investigation established the following.
On 8 September 2002 an operation was carried out under the command of Colonel G. in order to check the operative information in Urus-Martan, at the crossroads of Krasnoarmeyskaya and Budyennogo Streets. At 10.10 a.m., at 28 Krasnoarmeyskaya Street, during the inspection of the premises, bandits who were staying there mounted armed resistance. During the battle engagement a serviceman of the special forces of the Interior Troops was wounded. Upon the order of Colonel G. the district was cordoned off by the servicemen of the commander's company, the district FSB [Federal Security Service] and the Ministry of the Interior.
During the continuation of the special operation at 11.55 a.m., as a result of an exchange of fire, Captain I. received a firearm wound to the head. ... During the special operation two members of the ILG [illegal armed groups] were killed, and arms and ammunition were seized. ...The wounding of Captain I. was brought to the attention of the Urus-Martan district prosecutor.”
C. Information from the Government
D. The applicants' property complaints
II. RELEVANT DOMESTIC LAW
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
B. Article 38 § 1 (a) and consequent inferences drawn by the Court
C. The Court's evaluation of the facts
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 Ayndi Dzhabayev
B. The alleged inadequacy of the investigation into the abduction
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 VIOLATIONS OF ARTICLE 8 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL NO 1 TO 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. ”
Article 1 of Protocol No. 1 (protection of property)
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
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 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
1. Damage to the applicants' property
2. Damage resulting from the loss of earnings
B. Non-pecuniary damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
5. Holds that there has been a violation of Article 3 on account of the applicants' mental suffering;
10. Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Articles 2 and 8 of the Convention and of Article 1 of Protocol No. 1 to 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:
(i) EUR 1,509 (one thousand five hundred and nine euros) to the applicants jointly, 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 pecuniary damage caused to the applicants' property;
(ii) EUR 10,000 (ten thousand euros) to the applicants jointly, 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 pecuniary damage resulting from the loss of earnings;
(iii) EUR 35,000 (thirty-five thousand euros) to the applicants jointly, 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;
(iv) GBP 1,837 (one thousand eight hundred and thirty-seven pounds sterling), 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 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 8 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis