Lexploria

Information Note on the Court’s case-law 96

April 2007

Baysayeva v. Russia - 74237/01

Judgment 5.4.2007 [Section I]

Article 38

Obligation to furnish all necessary facilities

Refusal by respondent Government to disclose documents from ongoing investigation into the disappearance of the applicant’s husband: failure to comply with Article 38

Facts : The case concerned the disappearance of the applicant’s husba nd, who was last seen leaving home for work in a neighbouring village in Chechnya on the morning of 2 March 2000 on a route that would have taken him through a Russian military checkpoint. The Government stated that a special operation had been conducted b y the security forces that day to identify members of illegal armed groups thought to have participated in an ambush. Various people had been detained, but the applicant’s husband was not on the list. The applicant claimed that she had been told by witness es that her husband had been taken from the checkpoint by Russian soldiers and beaten. Although she had repeatedly attempted to enlist the help of prosecutors at various levels to locate her husband, the prosecutor’s office had not given instructions for a search until three months later. 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 for a fee. She paid him the next day and was shown a vide o, dated 2 March 2000, in which her husband could be seen lying on the ground in a brown sheepskin coat, being kicked by a soldier. He was then seen being led away by soldiers in the direction of buildings that had been partially destroyed. The applicant o btained photographs, a sketch map allegedly showing where her husband was buried and later a copy of the videotape from the man, who told her that the prosecutor’s office was already aware of its existence. This was confirmed by the prosecuting authorities . A few weeks later the applicant accompanied an investigator to the location indicated on the sketch map. It turned out to be within a military compound near the checkpoint through which her husband would have passed. They were denied entry. In December 2 001 she returned there with two investigators and located the building shown on the videotape. They also dug up a piece of brown cloth, resembling rotten sheepskin, at a site which the investigators considered might be a burial place. They had intended to return there but the next day the applicant was told that the two investigators had died when their car had blown up on their way to the prosecutor’s office. She claimed she was warned to stop searching for the body if she did not wish to put her and her c hildren’s safety at risk. In August 2003 the prosecutor’s office informed the applicant that her husband had been wounded in the shooting near the village and taken away in a vehicle by unidentified persons. The investigation had been adjourned because the culprits could not be identified. 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 remain ing documents would violate Article 161 of the Code of Criminal Procedure, which allowed the divulgation of information from the preliminary investigation file only in so far as it did not infringe the lawful interests of the parties to the proceedings or prejudice the investigation. The investigation into the abduction was continuing.

Law : Article 2 – (a) Substantive aspect – It was established that the applicant’s husband’s apprehension coincided with a special security operation. Since the videotape evi dence was undisputed, the last sighting of the applicant’s husband’s was of his detention by State servicemen. There had been no news of him since, his name had not been found in any detention-facility records and the Government had not submitted any plaus ible explanation as to what had happened to him after his detention. In the context of the conflict in Chechnya, a person’s detention by unidentified servicemen without any subsequent acknowledgement could be regarded as life-threatening. The applicant’s h usband’s absence without any news for over six years supported that assumption. Moreover, the stance taken by the prosecutor’s office and the other law-enforcement authorities after the news of his detention was reported to them by the applicant had signif icantly contributed to the likelihood of his disappearance, as the necessary steps had not been taken in the crucial first days or weeks after his detention. The conduct of the prosecutor’s office in the face of the applicant’s well-established complaints raised a strong presumption of at least acquiescence in the situation and cast doubt on the objectivity of the investigation. The applicant’s husband therefore had to be presumed dead following his unacknowledged detention by State servicemen. The authorit ies had not cited any grounds to justify the use of lethal force by their agents. It followed that liability for his presumed death was attributable to the Russian Government.

Conclusion : violation on account of the disappearance (unanimously).

(b) Proced ural aspect – The authorities had been informed of the disappearance within a matter of days. However, the investigation was not opened until almost three months later. When it did begin, it was plagued by inexplicable delays in performing the most essenti al tasks. By themselves these delays were sufficient to compromise the effectiveness of the investigation. While some explanation could be found in the exceptional circumstances prevailing in Chechnya, the delays clearly exceeded acceptable limits. In addi tion, the videotape had been available to the authorities as far back as 2000. Yet by February 2006 the persons filmed had still not been identified, let alone questioned. It did not appear that the investigators had identified or questioned the servicemen who had manned the checkpoint or carried out the special operation. Nor had the information about the possible burial place been adequately investigated. Over a period of six years the investigation had been adjourned and reopened at least 12 times. The a pplicant had not been kept properly informed of progress. In the light of these circumstances and the inferences to be drawn from the Government’s presentation of the evidence, the Court concluded that the authorities had failed to carry out an effective c riminal investigation.

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

Article 3 – (a) the applicant’s husband – Neither the witness statements nor the video recording contained evidence to support the all egations that the applicant’s husband had been ill-treated upon arrest. The episode depicted in the videotape did not in itself appear to attain the requisite threshold of severity.

Conclusion : no violation (unanimously).

(b) the applicant – The applicant had suffered, and continued to suffer, distress and anguish as a result of her husband’s disappearance and her inability to find out what had happened. The manner in which her complaints had been dealt with by the authorities constituted i nhuman treatment.

Conclusion : violation (unanimously).

Article 5 – The applicant’s husband’s detention by the federal authorities had not been logged in any custody record and there was no official trace of his subsequent whereabouts or fate. That in itsel f was a most serious failing, since it enabled those responsible for an act of deprivation of liberty to conceal their involvement in a crime, cover their tracks and escape accountability for the fate of a detainee. Furthermore, the absence of detention re cords containing details of the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it, was incompatible with the very purpose of Article 5. Further, the authorities should have been alert to the need to carry out a thorough and prompt investigation into the applicant’s complaints that her husband had been detained by security forces in life-threatening circumstances. They had, however, failed to take prompt and effective measure s to prevent his disappearance. Accordingly, he had been held in unacknowledged detention without any of the safeguards provided by Article 5.

Conclusion : violation (unanimously).

Article 13 – The applicant’s complaints were clearly “arguable”. She should therefore have had access to effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. However, since the criminal investigation was ineffective, it had consequently under mined the effectiveness of any other remedy, including civil remedies, that may have existed.

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

Article 38(1)(a) – A government’s obligation to assist the Court in its investigation of the application became applicable once the case was declared admissible. The Russian Government had failed to comply with a request to provide the entire case file or to furnish almost any documents from it. Article 161 of the Russian Code of Criminal Pro cedure did not preclude the disclosure of documents from a pending investigation file, but rather set out a procedure for and limits to such disclosure. The Government had failed to specify the nature of the documents concerned or the reasons why they coul d not be disclosed. In a number of comparable cases before the Court, the Government had submitted the documents from the investigation files in response to similar requests without any reference to Article 161. Their explanations did not, therefore, suffi ce to justify withholding key information requested by the Court.

Conclusion : failure to comply (unanimously).

Article 41 – EUR 1,732 for pecuniary damage and EUR 50,000 for non-pecuniary damage.

See also, on the question of Article 38 compliance, Shamayev and Others v. Georgia and Russia (no. 36378/02), reported in Information Note no. 74; Bazorkina v. Russia (no. 69481/01); and Imakayeva v. Russia (no. 7615/02) – Information Note no. 91.

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