Information Note on the Court’s case-law 91

November 2006

Imakayeva v. Russia - 7615/02

Judgment 9.11.2006 [Section I]

Article 8

Article 8-1

Respect for home

Search and seizure in Chechnya by agents of the Russian State without any authorisation or safeguards: violation

Article 38

Obligation to furnish all necessary facilities

Government's repeated failure to submit documents requested by the Court: failure to comply with Article 38

Facts : The applicant alleged that her son disappeared after being detained by servicemen in December 2000. She has had no news of her son since. The eye-witnesses described the abductors as “military personnel” who had used military vehicles and declared that the abduction had occurred in the immediate vicinity of a military roadblock. The applicant and her husband began applying to prosecutors for news of their son. They also visited detention centres and prisons in Chechnya and in t he Northern Caucasus. In January 2001 the criminal investigation commenced in respect of the suspected kidnapping of the son. In July 2002 the applicant was granted victim status. In October 2005, the investigation established that, in December 2000, he ha d been stopped by a group of armed persons. His subsequent whereabouts could not be established.

In June 2002, about 20 servicemen in military camouflage uniforms came and searched the applicant's house without a warrant, confiscated a number of items and forced her husband to leave with them. The applicant and 30 other witnesses submitted details of some of the servicemen who had conducted the operation and noted the registration numbers of the military vehicles involved. They stressed that, on the same ni ght, four other men from the same village had been detained by the same group. They later saw one of those vehicles at the district military commander's office. The applicant has had no news of her husband since. In July 2002 the investigation established that he had not been detained by a law-enforcement agency. In July 2004 the investigation was closed on the ground that no abduction had been committed and that her husband had been lawfully detained by military servicemen on suspicion of involvement in on e of the bandit groups active in the district. He had been released subsequently; therefore his further absence from his place of residence had not been connected to his detention. The applicant's victim status was withdrawn as she had suffered no pecuniar y or non-pecuniary damage. A new criminal investigation was opened in November 2004 and was adjourned in February 2005.

Law : Article 8 – No search warrant was produced to the applicant during the search of her house and no details were given of what was being sought after. Furthermore, it appeared that no such warrant had been drawn up at all. The Government were unable to sub mit any details about the reasons for the search or give any details about the items seized at the house, allegedly because they had been destroyed. The Government's reference to the Suppression of Terrorism Act could not replace an individual authorisatio n of a search, delimiting its object and scope, and drawn up in accordance with the relevant legal provisions. The provisions of that Act were not to be construed so as to create an exemption to any kind of limitations of personal rights for an indefinite period of time and without clear boundaries to the security forces' actions. The application of those provisions in the applicant's case was even more doubtful, given the Government's failure to indicate what kind of counter-terrorist operation had taken p lace in June 2002, which agency had conducted it, its purpose, etc. Moreover, for over two years after the event, various state authorities denied that such an operation had taken place at all. The Court was again struck by the lack of accountability or an y acceptance of direct responsibility by the officials involved in the events. In sum, the search and seizure implemented without any authorisation or safeguards, were not “in accordance with the law”.

Conclusion : violation (unanimously).

Article 38(1) – T he Court on several occasions requested the Government to submit copies of the investigation files opened into the disappearances of the applicant's relatives. The evidence contained in both files was regarded by the Court as crucial for the establishment of the facts. Nevertheless, the Government refused to produce any documents or to disclose any details of the investigation, referring to the Suppression of Terrorism Act and arguing that the case-file contained state secrets and that its disclosure would be in violation of the Code of Criminal Procedure. The Court found those reasons insufficient. Referring to the importance of a respondent Government's cooperation in Convention proceedings and mindful of the difficulties associated with the establishment of facts in cases of such a nature, the Court found that the Government had fallen short of their obligations under Article 38(1).

Conclusion : violation (unanimously).

The Court also found that there had been a violation of Articles 2, 3 and 5, as well as of Article 13 (in connection with Articles 2 and 3).

Article 41 – EUR 20,000 in respect of pecuniary damage and EUR 70,000 for non-pecuniary damage.

For further details, see Press Release no. 676.

See also Luluyev v. Russia , no. 69480/01, judgment of 9 November 2006, Press Release no. 675 and under Article 2 “Use of force”.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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