European Court of Human Rights

Information Note on the Court’s case-law No. 158

December 2012

Aslakhanova and Others v. Russia - 2944/06, 332/08, 42509/10 et al.

Judgment 18.12.2012 [Section I]

Article 46

Article 46-2

Execution of judgment

Measures of a general character

Respondent State required to take measures to resolve systemic problems with criminal investigations into missing persons

 

Facts - The cases concerned five joined applications lodged by families who complained about the disappearance of their eight male relatives in Grozny or the Grozny District between March 2002 and July 2004. The facts of the cases were similar in both the style of the abductions, which were conducted in a manner resembling a security operation, and the resulting criminal investigations, which remained pending without having produced any tangible results. The parties disputed the level of State involvement in the disappearances as well as whether the abducted men could be presumed dead.

Law - Following an analysis of the disputed facts, the Court found it established that the applicants’ family members must be presumed dead following their unacknowledged detention by State agents. Accordingly, a substantive violation of Article 2 was found. The Court also found a procedural violation of Article 2 on account of the failure to carry out effective investigations into the disappearances. In doing so, it noted that the criminal investigations in these cases had suffered similar defects to those in other cases concerning disappearances in Chechnya and Ingushetia. The Court also found a violation of Article 3 on account of the distress and anguish suffered by the families of the abducted men and a “particularly grave” violation of Article 5 as the applicants’ relatives had been held in detention by State agents without legal grounds or acknowledgement. Lastly, the Court held that there had been a violation of Article 13 as, while the Russian Code of Criminal Procedure provided for the possibility of judicial review of investigators’ decisions, the Court was not satisfied that this provided an adequate remedy where, as in this case, the investigations were repeatedly adjourned and reopened.

Article 46: Violations of the same rights had regularly been found in similar cases against the Russian Federation, the majority of which concerned disappearances in Chechnya and Ingushetia between 1996 and 2006. More than 120 judgments had been adopted by September 2012 with more applications communicated or pending.

The Court stressed that Article 2 rights would be rendered illusory if an applicant’s victim status were to be remedied by damages alone. There is a clear obligation to conduct effective investigations capable of leading to the identification and punishment of those responsible. In cases of missing persons, there arises an additional obligation of investigating in order to locate the missing person or find out what happened to him or her. Article 3 also requires that the State should be compassionate and respectful to relatives of deceased or missing persons and that it should assist in obtaining information and uncovering facts.

With regard to the number of applications before the Court concerning similar issues, the Court found that the Russian Federation had systemic problems with investigating disappearances. This was attested in particular by reports of the Council of Europe Committee of Ministers which showed that the problems remained largely unresolved. The Court was therefore compelled to provide some guidance on certain measures that had to be taken, as a matter of urgency, to address these systemic failures. These measures fall into two principal groups:

(a)  Situation of the victims’ families - This was the more pressing group of measures as ineffective criminal investigations resulted in a sense of acute helplessness and confusion on the part of the victims’ families. A key proposal of the Court was for the State to establish a single, sufficiently high-level body responsible for solving disappearances in the region, which would enjoy unrestricted access to all relevant information, would work on the basis of partnership with the families, and could compile a unified database of disappearances.

In addition, the Court stated that greater resources should be allocated to the forensic and scientific work necessary for the investigations.

The Court welcomed the State’s developments towards better compensating victims’ families. It noted that substantial compensation, coupled with a clear and unequivocal admission of State responsibility for the relatives’ frustrating and painful situation, could resolve Article 3 issues.

(b)  Effectiveness of the investigation - Even where Article 3 concerns were resolved, there was a continuing obligation to investigate the situations of known or presumed deaths of individuals, where there was at least prima facie evidence of State involvement. The Court reaffirmed its position in Varnava and Others where it was noted that, inter alia: insufficient evidence resulting from delay in investigating could not absolve the State from making the requisite investigative efforts; a preference for a “politically-sensitive” approach to avoid drawing attention to the circumstances of the disappearances could have no bearing on the application of the Convention; and investigations should be prompt, independent, under public scrutiny, and capable of leading to a determination of whether the death was caused unlawfully and, if so, to the identification and punishment of those responsible.

While the Court recognised the problem of illegal militant groups facing the Russian Federation, it also considered it possible to ensure accountability of the anti-terrorist and security services without compromising the legitimate need to combat terrorism. In view of the similar patterns surrounding the cases, it was held to be vital to form a general strategy to help elucidate a number of questions common to the cases as well as to review the adequacy of current existing legal definitions of relevant criminal acts.

Additionally, the Court judged that there should be stronger cooperative efforts between investigating authorities and the military and security agencies. This would demand that the investigators be given the power to identify the agencies responsible for capturing insurgents and to retrieve important records including details of personnel involved in operations concerning the subject matter of the investigation and of the passage of service vehicles through security roadblocks. More generally, investigators should be given unhindered access to the relevant data of the military and security agencies and it was necessary to ensure that the investigation and its supervision was not entrusted to persons or structures potentially implicated in the events at issue.

It was stressed that relatives should have better access to case files, particularly where the cases had been suspended. It was also found that invoking the statute of limitations as a bar to investigation would be contrary to the State’s Article 2 obligations.

Considering the serious and continuous nature of the alleged violations, the Court declined to adjourn similar cases.

Article 41: Sums ranging between EUR 14,000 and EUR 16,000 in respect of pecuniary damage. Sums ranging between EUR 60,000 and EUR 120,000 in respect of non-pecuniary damage.

(See Varnava and Others v. Turkey [GC], nos. 16064/90 et al., 18 September 2009, Information Note no. 122)

 

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