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Press release - 207(2007)
05.04.2007
EUROPEAN COURT OF HUMAN RIGHTS
Press release issued by the Registrar
CHAMBER JUDGMENT
BAYSAYEVA v. RUSSIA
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Baysayeva v. Russia (application no. 74237/01).
The Court held unanimously that there had been:
· a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the disappearance of the applicant’s husband;
· a violation of Article 2 concerning the failure to conduct an effective investigation into his disappearance;
· no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention concerning the applicant’s husband;
· a violation of Article 3 concerning the applicant;
· a violation of Article 5 (right to liberty and security) concerning the applicant’s husband;
· a violation of Article 13 (right to an effective remedy); and,
· a failure to comply with Article 38 § 1 (a) (obligation to furnish necessary facilities for the examination of the case).
Under Article 41 (just satisfaction), the Court awarded the applicant 1,732 euros (EUR) for pecuniary damage, EUR 50,000 in respect of non-pecuniary damage and EUR 12,994 for costs and expenses. (The judgment is available only in English.)
1. Principal facts
The applicant, Asmart Magomedovna Baysayeva, is a Russian national who was born in 1958 and lives in Pobedinskoye (Grozny, Chechnya).
The case concerns the disappearance of her husband Shakhid Baysayev, with whom she had five children. On 2 March 2000 he left for work in the neighbouring village of Podgornoye at about 6.30 a.m., taking a road through Russian military checkpoint no. 53. She has not seen him since.
The Russian Government submitted that a special operation was conducted in Podgornoye that day to identify members of illegal armed groups thought to have participated in an ambush on members of the special police forces. Various people were detained in the operation, but Shakhid Baysayev was not listed among them.
The applicant claimed that she spoke to various witnesses in the following days, a number of whom confirmed that her husband had been taken away by Russian soldiers from the checkpoint; others stated that he had been beaten. She also applied repeatedly to prosecutors at various levels for help in finding her husband, from 2 March 2000 onwards.
On 31 May 2000 Chechnya Prosecutor’s Office requested that a search be organised to find a number of missing persons, including the applicant’s husband.
At the beginning of August 2000 the applicant was stopped by a masked man in military uniform who claimed he could reveal who was behind her husband’s disappearance if she paid five thousand roubles. She paid him the next day and was shown a video, dated 2 March 2000, in which Shakhid Baysayev, wearing a dark brown sheepskin coat, could be seen lying on the ground, being kicked by a soldier. He was then taken away by soldiers towards partially destroyed buildings. The man gave the applicant photographs made from the video and a sketch map allegedly showing where her husband was buried. The applicant asked for the videotape and was told it would cost her 1,000 US dollars. She was also told that the tape was known to the prosecutor’s office.
The next day the applicant went to Grozny Prosecutor’s Office where the investigator confirmed that he had known about the tape and that a copy was probably in the Chechnya Prosecutor’s Office.
One week later the applicant managed to buy the videotape for 1,000 US dollars.
On 23 August 2000 the applicant went with an investigator to the location indicated on the sketch map, which was within a military compound near checkpoint no. 53, but they were denied entry.
On 8 December 2001 she went with two investigators to the area around checkpoint no. 53, where they found the building on the videotape. They also dug up a piece of brown cloth, resembling a piece of rotten sheepskin, at a site which the investigators considered might be a burial place. They intended to return to the site. However, the next day the applicant was told that the two investigators had died when their car blew up on their way to the Prosecutor’s Office. She claimed she was warned to stop searching for her husband’s body, or risk her own safety and that of her children.
On 15 August 2003 Grozny Town Prosecutor’s Office stated that Shakhid Baysayev had been caught in the shooting near the village of Podgornoye, had been wounded and had then been driven away by unknown persons. The investigation had been adjourned for failure to identify those responsible.
In February 2004 and December 2005 the European Court of Human Rights asked the Russian Government for a copy of the complete case file. The Government submitted certain documents, but stated that disclosure of the remaining documents would be in violation of Article 161 of the Code of Criminal Procedure.
It appears that the investigation into Shakhid Baysayev’s abduction was adjourned and reopened more than 12 times, it did not identify those responsible for the abduction and no one was charged with the crimes. The Government submitted in 14 March 2006 that the investigation was continuing.
The applicant submitted that, since the “disappearance” of her husband, her health had deteriorated, that she had had a stroke and suffered from restlessness, anxiety and insomnia.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 24 August 2001 and declared admissible on 1 December 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot),
Anatoli Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
and also Søren Nielsen, Section Registrar.
3. Summary of the judgment2
Complaints
The applicant alleged that her husband was unlawfully killed by agents of the State and that the authorities failed to carry out an effective and adequate investigation into his disappearance. She also alleged that he was subjected to inhuman and degrading treatment, that the authorities had failed to investigate that allegation and that she herself had suffered as a result of her husband’s disappearance. She further submitted that her husband was subjected to unacknowledged detention, that she was denied access to a court and that there had been no effective remedy in respect of those alleged violations. Lastly, she complained that the Russian Government failed to submit the entire criminal investigation file, as requested by the Court. She relied on Articles 2, 3, 5, 6 (right to a fair hearing), 13, 34 (individual applications) and Article 38 § 1 (a).
Decision of the Court
Article 2
Failure to protect the right to life of the applicant’s husband
The Court considered it established that Shakhid Baysayev’s apprehension coincided with a special security operation carried out in Podgornoye on 2 March 2000. Given that the authorities had at no point disputed the fact that the video depicted servicemen of the federal forces and the applicant’s husband, the Court concluded that Shakhid Baysayev was last seen being apprehended by State servicemen. In addition, there had been no news of the applicant’s husband since 2 March 2000, his name had not been found in any of the detention facilities’ records and the Government had not submitted any plausible explanation as to what had happened to him after his detention.
The Court noted with great concern that a number of cases had come before it which suggested that the phenomenon of “disappearances” was well known in Chechnya. In the context of the conflict in Chechnya, a person being detained by unidentified servicemen without any subsequent acknowledgement of detention could be regarded as life-threatening. The absence of Shakhid Baysayev or any news from him for over six years supported that assumption. Moreover, the stance of the prosecutor’s office and the other law-enforcement authorities after the news of his detention had been reported to them by the applicant significantly contributed to the likelihood of his disappearance, as the necessary steps were not taken in the crucial first days or weeks after his detention. Their behaviour in the face of the applicant’s well-established complaints gave a strong presumption of at least acquiescence in the situation and raised strong doubts as to the objectivity of the investigation.
The Court concluded that it had been established beyond reasonable doubt that Shakhid Baysayev had to be presumed dead following his unacknowledged detention by State servicemen. Noting that the authorities did not rely on any ground of justification in respect of the use of lethal force by their agents, it followed that liability for his presumed death was attributable to the Russian Government. Accordingly, there had been a violation of Article 2.
Lack of effective investigation into the abduction of the applicant’s husband
The Court noted that the authorities were immediately made aware of Shakhid Baysayev’s apprehension by the applicant in the days following his disappearance. However, the investigation was opened only in May 2000. When the investigation did begin, it was plagued by inexplicable delays in performing the most essential tasks. Such delays by themselves compromised the effectiveness of the investigation. While accepting that some explanation for these delays could be found in the exceptional circumstances that prevailed in Chechnya, the Court found that, in the applicant’s case, they clearly exceeded any acceptable limitations on efficiency that could be tolerated in dealing with such a serious crime.
In addition, the videotape was available to the authorities as far back as 2000. Yet, the Court found it astonishing to note, in February 2006 those depicted in it had still not been identified by the investigation, let alone questioned. It did not appear that the investigation identified and questioned the servicemen of the military units who manned roadblock no. 53 or those who carried out the special operation in Podgornoye. It also appeared that the information about the possible burial place of the applicant’s husband was not adequately pursued.
The Court noted that, in six years, the investigation was adjourned and reopened at least 12 times. The applicant, notwithstanding her procedural status as a victim, was not duly informed of its progress; the only information communicated to her concerned the adjournment and reopening of the proceedings.
In the light of the foregoing, and with regard to the inferences drawn from the Russian Government’s presentation of evidence, the Court found that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance and presumed death of Shakhid Baysayev, in violation of Article 2.
Article 3
Concerning the applicant’s husband
The Court considered that neither the witness statements collected by the applicant nor the video recording viewed by the Court contained evidence to support the allegations that Shakhid Baysayev was ill-treated upon arrest. The episode depicted in the videotape did not in itself appear to attain the threshold of severity required by Article 3. There had therefore been no violation of Article 3 concerning the applicant’s husband.
Concerning the applicant
The Court found that the applicant suffered, and continues to suffer, distress and anguish as a result of the disappearance of her husband and of her inability to find out what happened to him. The manner in which her complaints had been dealt with by the authorities had to be considered to constitute inhuman treatment contrary to Article 3. The Court concluded that there had been a violation of Article 3 in respect of the applicant.
Article 5
It had been established that the applicant’s husband was detained on 2 March 2000 by the federal authorities and had not been seen since. His detention was not logged in any custody record and there existed no official trace of his subsequent whereabouts or fate. That fact was in itself a most serious failing, since it enabled those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it, had to be seen as incompatible with the very purpose of Article 5.
The Court further considered that the authorities should have been alert to the need to investigate more thoroughly and promptly the applicant’s complaints that her husband had been detained by the security forces and taken away in life-threatening circumstances. Yet, the authorities failed to take prompt and effective measures to safeguard Shakhid Baysayev against the risk of disappearance.
Accordingly, the Court found that Shakhid Baysayev was held in unacknowledged detention in the complete absence of the safeguards contained in Article 5 and that there had therefore been a violation of Article 5.
Article 6
The Court found that no separate issues arose under Article 6
Article 13
The Court reiterated that, in circumstances where, as in the applicant’s case, a criminal investigation into a disappearance and probable death was ineffective, and where the effectiveness of any other remedy that might have existed was consequently undermined, the State had failed in its obligation under Article 13. Consequently, there had been a violation of Article 13 in connection with Articles 2 and 3. (No separate issues arose in respect of Article 13 taken in conjunction with Article 5.)
Article 38 § 1 (a)
The Court remarked that Article 161 of the Russian Code of Criminal Procedure did not preclude disclosure of the documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government failed to specify the nature of the documents and the grounds on which they could not be disclosed. The Court also recalled that, in a number of comparable cases reviewed and pending before the Court, similar requests had been made to the Russian Government and that the documents from the investigation files had been submitted without reference to Article 161. For those reasons the Court considered the Government’s explanations concerning the disclosure of the case file insufficient to justify the withholding of the key information requested by the Court.
The Court pointed out that a Government’s obligations under Article 38 to assist the Court in its investigation of the application became applicable after the case had been declared admissible. Noting that the Government had failed to comply with the request to provide the entire case file or to furnish almost any documents from the case-file after the admissibility decision, the Court considered that there had been a breach of Article 38.
Article 34
As to Article 34, the Court found no indication that there had been any hindrance of the applicant’s right to individual petition. The Court was also of the opinion that the failure to submit the full set of documents requested raised no separate issues under Article 34.
***
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
Press contacts
Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
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Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
2 This summary by the Registry does not bind the Court.
https://wcd.coe.int/ViewDoc.jsp?id=1115315&BackColorInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLogged=A9BACE
