CASE OF KHASUYEVA v. RUSSIA
(Application no. 28159/03)
11 June 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 Khasuyeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The disappearance of the applicant's son
1. General background information
2. Information submitted by the applicant
3. Information submitted by the Government
B. The applicant's search for Abu Khasuyev
C. The official investigation into the disappearance of Abu Khasuyev
1. Information submitted by the applicant
2. Information submitted by the Government
“...On 12 January 2007 the investigator of the Urus-Martan district prosecutor's office decided to suspend the investigation in criminal case no. 25170 for failure to establish the identity of the perpetrators...
This decision is unlawful and unsubstantiated, as in violation of Article 208 § 5 of the Criminal Procedure Code the investigation failed to take all possible measures in the absence of the culprits.
For instance, the investigation failed to establish or question the witnesses to Abu Khasuyev's abduction; to question the former head of the ROVD, as well as the head of the criminal search division of the ROVD and the head of the public safety division of the ROVD... during the questioning of Z. Khasuyeva the investigators failed to clarify a number of important circumstances surrounding her son's abduction and take other possible investigative and operational search measures.
The decision to suspend the investigation in the criminal case should be overruled and the case should be returned [for further investigation]...”
“1. To make a plan of the investigative and operational search measures ...
2. To establish the identity of eyewitnesses to Abu Khasuyev's abduction and question them about the incident.
3. ....to question the former head of the ROVD, as well as the head of the criminal search division of the ROVD and the head of the public safety division of the ROVD about the circumstances of the case; also, to find out what measures they had taken to establish the identity of the armed men who had been driving around in Urus-Martan on 30 August 2001 in a white VAZ-2107 or VAZ-2106 car, red Niva car [VAZ-2121] and a khaki UAZ Tabletka vehicle and had abducted Abu Khasuyev from his house.
4. ...to question Mr G. Gadzhiyev, the former Urus-Martan district military commander, who, according to Z.Khasuyeva...., knew who had arrested her son Abu Khasuyev and told her that her son had probably been taken to the remand detention centre in Chernokozovo; [the investigators] should establish officers of which law enforcement agency had been manning the checkpoint located across from Z. Khasuyeva's house...
5...to establish to the owners of the white VAZ-2107 or VAZ-2106, the red Niva car and the khaki UAZ Tabletka.
6. To establish which power structures had stationed people in August 2001 in Urus-Martan and to find out whether they used VAZ-2107 or VAZ-2106, the red Niva car and the khaki UAZ Tabletka.
7. ....to establish who was on duty at the checkpoint situated across the street from the house of Z. Khasuyeva on 30 August 2001 at about 1 p.m.....;
8. ...to request from the UGA information concerning special operations on 30 August 2001 in Urus-Martan and to find out whether any military orders to conduct operational-search measures had been issued [by them] to the units stationed [at the time] in Urus-Martan.
9. To request the same information from the Central Archives of the Ministry of Defence.
10. To question again Z. Khasuyeva and find out the following:
-which relatives of hers had received information “from unofficial sources” that after the abduction her son Abu Khasuyev had been taken to the Urus-Martan district military commander's office where he had been detained on the third floor?.....
11. To question the witnesses.... about the persons Z. Khasuyeva referred to as “unofficial sources of information”...
12. To establish .... the reasons for the failure [to act] by... the officers of the ROVD who.... had been on duty on the roof of the ROVD on 30 August 2001, from where [they] could clearly see the house....
13. ... to question Mr Kh.O., who on 30 August 2001 was walking down Sovetskaya Street in Urus-Martan with Mr R.D. and saw the abduction of Abu Khasuyev.....
14. ....to verify whether any information concerning Abu Khasuyev is available in the Main Information Centre of the Chechnya Ministry of the Interior, the Main Informational and Analytical Centre of the Russian Ministry of the Interior and its Data Base...
17. ... if there is sufficient information about the involvement of servicemen of the Russian federal forces ...to forward the case ... under the rules of jurisdiction... to an appropriate military investigating authority...”
“...upon examination of the criminal case file it was established that there were sufficient grounds to assume that the crime [the abduction of Abu Khasuyev] had been committed with the participation of servicemen of the Russian federal forces, and this had been confirmed, in particular, by the use of armoured vehicles during the crime and by the carrying out of the special operation...”
3. Documents submitted by the Government
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 Abu Khasuyev
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 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.”
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
3. Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Abu Khasuyev had disappeared;
4. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant;
6. Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2;
7. 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 for the payment in respect of costs and expenses:
(i) EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the applicant;
(ii) EUR 35,000 (thirty five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicant;
(iii) EUR 8,093 (eight thousand and ninety three euros), plus any tax that may be chargeable to the applicant, 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 11 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis