Lexploria

Information Note on the Court’s case-law 252

June 2021

Adzhigitova and Others v. Russia - 40165/07 and 2593/08

Judgment 22.6.2021 [Section III]

Article 14

Discrimination

Unlawful detention and ill-treatment of Avars by military servicemen of Chechen origin, failure to investigate possible motive of ethnic hatred: violation

Facts – The applicants lived in the village of Borozdinovskaya (hereafter “the village ”), which is mostly inhabited by Avars (people of a north-east Caucasian native ethnic group that originates in the territories of Dagestan), but also by several Chechen and Russian families. According to the applicants, Avar village residents had a tense relationship with their Chechen neighbours.

The Vostok Battalion is stationed about one hundred kilometres away – its members were recruited from ethnic Chechens.

After a violent incident perpetrated by an illegal armed group, a special operation was pla nned and entrusted to two groups of Vostok Battalion soldiers, in order to arrest the perpetrators, who were allegedly hiding in the forest next to the village. The Lieutenant of one unit ordered the subordinate military personnel to seal off the village a nd search the residents’ houses for firearms or other evidence of membership of the illegal armed group. He also ordered them to arrest the male residents of the village and gather them at the local school in order to identify those responsible for the att ack. A number of the applicants’ relatives went missing as soon as the operation was over.

Law

Article 14 in conjunction with Articles 2 and 8: Military servicemen had searched the village houses in a blanket, indiscriminate manner. Further, not all of th e missing men were Avars. Racial prejudice had not been a causal factor behind the military operation. It was not the Avar community, but individual people – alleged members of an illegal armed group – who had been the main targets of the operation. The Co urt could therefore not conclude that the searches and the enforced disappearances had been the result of any different treatment of village residents on account of their ethnicity. Lastly, the applicants had not made a prima facie case that the searches o r abductions were discriminatory in nature. Such a motive had not been clearly formulated in the complaints and requests for the opening of criminal proceedings. The domestic authorities had therefore had no obligation under the Convention to investigate i t.

Conclusion : no violation (unanimously).

Article 14 in conjunction with Article 3: The domestic court had established that the Vostok Battalion personnel had arrested village residents, ill-treated and unlawfully detained them. The service personnel had arrested the village men in a blanket manner, disregarding their ethnic origin. However, at the school they had interviewed the village residents and released only those of them who were of Chechen or Russian ethnicity. The Avars had been kept in the scho ol and beaten for several hours. The beatings had been accompanied by racist comments.

In the absence of any explanation from the Government, and taking into account the reported tension between Chechens (who staffed the Vostok Battalion) and Avars (who comprised part of the village’s population), the Court concluded that the applicants’ eth nic origin had been among the causal factors for their unlawful detention and ill-treatment (compare Antayev and Others v. Russia ).

Regarding the State’s procedural obligation under Article 14, in the complaints lodged with the investigating authorities, s everal applicants had explicitly mentioned racist insults that had allegedly been made against them by military personnel at the time of their detention and ill-treatment at the local school. That had constituted a sufficient trigger for the State’s proce dural obligation to ensure an effective investigation into the alleged ethnic hatred.

However, no thorough examination of any possible racial motives had been undertaken. On the contrary, the investigation had ignored any possibility that the crimes may h ave been motivated by ethnic hatred. There was nothing to suggest that the investigators who had questioned military personnel and village residents had asked them about any possible racist background to the incident (compare Makhashevy v. Russia and Antay ev and Others , and contrast with R.R. and R.D. v. Slovakia ). As a result, the motive of hatred had not been included in the legal classification of the crimes. When several applicants had challenged in court that failure to include the motive of hatred, their complaints had been dismissed in a summary fashion.

Co nclusion: violation (unanimously).

The Court also held, unanimously, that there had been: a failure of the State to comply with their obligations under Article 38; a violation of Article 2 in respect of several applicants’ enforced disappearance, and lack of an effective investigation into the disappearance or death of Mr. Magomazov; no violation of Article 2 on account of Mr. Magomazov’s death or the alleged failure of the State to safeguard his life; a violation of Article 3 on account of the ill-treatme nt of a number of the applicants, on account of the lack of an effective investigation into their ill-treatment, and on account of the mental suffering of several applicants caused by the disappearance of their relatives; a violation of Article 13, in conj unction with Article 3, on account of the lack of an effective domestic remedy concerning the mental suffering caused to the applicants by their relatives’ disappearance; a violation of Article 8 on account of unlawful searches conducted; no violation of A rticle 1 of Protocol No. 1 under its substantive or procedural limbs on account of incidents of arson and related investigation; and no violation of Article 14 in conjunction with Article 1 of Protocol No. 1.

Article 41: Sums ranging between EUR 26,000 and EUR 60,000 to each of the relevant applicants in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.

(See also Makhashevy v. Russia , 20546/07 , 31 July 2012; Antayev a nd Others v. Russia , 37966/07 , 3 July 2014; R.R. and R.D. v. Slovakia , 20649/18 , 1 September 2020)

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