Lexploria

Information Note on the Court’s case-law 97

May 2007

Akhmadova and Sadulayeva v. Russia - 40464/02

Judgment 10.5.2007 [Section I]

Article 38

Obligation to furnish all necessary facilities

Refusal by Government to disclose documents from ongoing investigation into an abduction and killing by servicemen or into allegations of harassment of the applicants: failure to comply with Article 38

Facts : The applicants are the mother and widow of Mr Shamil Akhmadov. He was in a group of some 170 people who were detained in a military operation in Chechnya in March 2001. Most were released within days, but Mr Akhmadov was one of 11 men who remained in unacknowledged dete ntion. The Government claimed he was wanted in connection with the possession of drugs. Shortly after the operation ended, the bodies of four of the missing men were discovered near a military base with bullet wounds. Mr Akhmadov's mother was informed that a criminal investigation into his disappearance had been opened and that the involvement of military personnel in his abduction had been established. She was granted victim status. In April 2002 Mr Akhmadov's body was found in a field and identified by hi s widow from his clothes. The prosecutor's office issued a certificate confirming her identification and that the deceased had met a violent death, probably in March 2001. A death certificate was later issued, indicating 22 March 2001 as the date of death. The criminal investigation into the death was adjourned and reopened on at least six occasions and the case transferred between military and civil prosecutors at least five times. The investigation was still pending in November 2005. The applicants also a lleged that they had been subjected to constant pressure and harassment by the military, which had included serious physical assaults, house searches and the destruction of their property.

Despite repeated requests from the Court, the Government refused to provide copies of the documents from the investigation file, arguing that the case was still under investigation and that disclosure would violate Article 161 of the Code of Criminal Procedure. Requests for disclosure of documents relating to the verifica tion by the prosecutor of the second applicant's allegations of harassment were also turned down. Although the Government finally submitted certain procedural documents from the criminal investigation into the abduction, they declined to submit any further documents on the ground that they contained State secrets, including information relating to the location and actions of the military and special forces, and the addresses and personal details of witnesses who had participated in counter‑terrorist operati ons.

Law : Article 2 – (a) Substantive aspect – Various factors pointed to a link between Mr Akhmadov's arrest by State servicemen in March 2001 and his death. Official documents (the death certificate and the certificate issued by the prosecutor's office) indicated that the domestic authorities presumed death to have occurred a few days after his arrest. The body was dressed in the same clothes as those Mr Akhmadov had been wearing and a number of other bodies of people who had been detained on the same da te had also been discovered. All had apparently met violent deaths and four of the bodies had been discovered on military premises. It had thus been established “beyond reasonable doubt” that State authorities were responsible for the death.

Conclusion : vi olation on account of the death (unanimously).

(b) Procedural aspect – The authorities had been made aware of Mr Akhmadov's detention because the applicants had personally visited the military commander's office and the prosecutor's offices within days. H owever, the investigation had not been opened until 11 days after his detention. That delay was in itself liable to affect the effectiveness of the investigation. The investigation was dysfunctional and plagued by inexplicable delays in performing the most essential tasks. In a period of five-and-a-half years, it had been adjourned and reopened at least six times and transferred from one prosecutor's office to another on at least five occasions for no apparent reason. Mr Akhmadov's widow was not granted vic tim status in the proceedings and his mother, notwithstanding her victim status, was not properly informed of progress. It had taken more than a year for the body to be discovered, and even then this was not in any way down to the efforts of the law-enforc ement authorities. The reaction of the prosecutor's office to the news of the detention had significantly contributed to the likelihood of the deceased's disappearance, as no necessary steps were taken in the crucial first days or weeks. Its conduct in the face of the applicants' justified complaints created a strong presumption of at least acquiescence in the situation and raised strong doubts as to the objectivity of the investigation.

Conclusion : violation on account of the failure to hold an effective i nvestigation (unanimously).

Article 3 – The relatives of a “disappeared person” could not normally claim to be a victim for the purposes of Article 3 where the person taken into custody was later found dead. In such cases, the Court would normally limit it s findings to Article 2. However, if the period of initial disappearance was long enough, it could give rise to a separate issue under Article 3. There had been a distinct period of more than one year before news of Mr Akhmadov's death had come through. Th e applicants had suffered uncertainty, distress and anguish as a result of his disappearance and of their inability to find out what had happened to him or to receive up-to-date information on the investigation. The manner in which their complaints had bee n dealt with by the authorities accordingly constituted inhuman treatment.

Conclusion : violation (unanimously).

Article 5 – It was established that Mr Akhmadov had been detained by State servicemen during a security operation and not seen alive again. The Government had not provided any explanation for his detention or any documents of substance from the domestic in vestigation into his apprehension. He had therefore been a victim of unacknowledged detention. The authorities should have been more alert to the need for a thorough and prompt investigation of Mr Akhmadov's detention in life-threatening circumstances, but had failed to take prompt and effective measures. Accordingly, he had been held in unacknowledged detention without any of the Article 5 safeguards in what constituted a particularly grave violation of the right to liberty and security.

Conclusion : violation (unanimously).

Article 13 – Where, as in this instance, a criminal investigation into a disappearance and death was ineffective and the effectiveness of any other potential remedy capable of leading to the identification and punishment of those responsible was consequently undermined, the State had failed in its obligation under Article 13.

Conclusion : violation of Article 13 in conjunction with Articles 2 and 3.

Article 34 – In the absence of medical or other evidence to corroborate the second applicant's allegations, there was insufficient material before the Court for it to conclude that undue pressure had been put on her to dissuade her from pursuing her application to the Court.

Conclusion : no failure to comply (unanimously).

Article 38 § 1 (a) – The Government had been asked repeatedly to submit copies of the investigation files, as they contained evidence which the Court regarded as crucial to the establishment of the facts in the case. The Government had refused on the ground that the case was still under investigation. However, the provisions of Article 161 of the Code of Criminal Procedure, on which the Government relied, did not preclude disclosure of the documents from a pending investigation file, but simply set out a procedure for and limits to such disclosure. The Government had failed to specify the nature of the documents and the grounds on which they could not be disclosed. Accordingly, their explanations were insufficient to justify withholding the key information requested.

Concl usion : failure to comply (unanimously).

Article 41 – EUR 15,000 jointly for pecuniary damage and EUR 20,000 each for non-pecuniary damage.

See also, for previous failures to comply with Article 38: Shamayev and Others v . Georgia and Russia (no. 36378/02), reported in Information Note no. 74; Imakayeva v . Russia (no. 7615/02) – Information Note no. 91; and Baysayeva v . Russia (no. 74237/01) – Information Note no. 96.

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