Russia loses another case in Strasbourg over a disappearance in Chechnya
On 23 July the European Court of Human Rights informed of its Chamber judgment in the case of Mutsayeva. v. Russia (application no. 24297/05). It found two violations of the right to life (Article 2 of the European Convention on Human Rights) regarding the lack of a plausible explanation for the disappearance of Khizir Tepsurkayev and not having carried out an effective investigation. It also found that there had been a violation of the prohibition of inhuman or degrading treatment (Article 3) given the psychological suffering inflicted upon Khizir’s mother and of the right to liberty and security (Article 5) on account of the unacknowledged detention of Khizir Tepsurkayev. There had also been a a violation of Article 13 (right of an effective remedy) in conjunction with Article 2, on account of the impossibility for the applicant to obtain the identification and punishment of those responsible.
According to the applicant, in the morning of 27 August 2001 her son, Khizir Tepsurkayev (21 at the time), left his house in Urus-Martan to go to the Town Court in the centre of the town. On his way an acquaintance of his stopped his car and offered him a ride into town which he accepted. At that time there was a sweeping operation in town and Khizir had to show his documents when he stepped out of the car in the centre. At that moment someone in a military vehicle nearby shouted that that car was on the wanted list and the driver should be arrested, following which a commander immediately ordered the soldiers to detain Khizir Tepsurkayev. The soldiers started beating him while Khizir called for help. A neighbour approached but could not get close to Khizir because the soldiers started firing over the heads of the crowd. Shortly afterwards he was forced into a car and driven away. After being informed of what happened about half an hour following the abduction, the applicant and her husband immediately started searching for Khizir. They contacted both in person and in writing various official bodies describing in detail the circumstances of their son’s abduction and asking for help in establishing his whereabouts.
An investigation was opened into the circumstances complained of and was suspended and resumed on several occasions; it has so far failed to establish the identity of the perpetrators
Decision of the Court
Article 2 (disappearance)
The Court noted that the applicant’s allegations had been supported by witness statements collected by her and by the investigation. It further found that the fact that a large group of armed men in uniform in broad daylight, equipped with military vehicles, had proceeded to check identity documents and opened fire had strongly supported the applicant’s allegation that those had been State servicemen conducting a security operation. Having drawn inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide a plausible explanation for the events in question, the Court considered that Khizir Tepsurkayev had been taken away on 27 August 2001 by State servicemen during an unacknowledged security operation. In his absence or of any news about him for several years, and given the failure of the Government to justify his abduction, the Court concluded that he should be presumed dead and his death could be attributed to the State. Accordingly, there had been a violation of Article 2 in respect of him.
Article 2 (investigation)
The Court noted that the authorities had been made aware of Khizir Tepsurkayev’s abduction immediately. However, the investigation had been opened almost five months later and a number of essential investigative steps had been significantly delayed or not taken at all. Finally, the Court noted that the investigation had been suspended and resumed on numerous occasions and that there had been lengthy periods of inactivity when no proceedings were pending. Further, the Town Court had criticised deficiencies in the proceedings and ordered remedial measures; it appeared, however, that its instructions had not been complied with. Accordingly, the authorities had failed to carry out an effective investigation, in violation of Article 2.
Article 3 (psychological suffering)
The Court noted that the applicant, mother of the disappeared person, had had no news of him for more than seven years. Given that there had been no plausible explanation about what had happened after Khizir Tepsurkayev’s detention, the Court concluded that there had been a violation of Article 3 as a result of the applicant’s psychological suffering.
Article 5 (unlawful detention)
Given that Khizir Tepsurkayev had been held in unacknowledged detention without any of the safeguards contained in Article 5, this had constituted a particularly grave violation of the right to liberty and security as enshrined in Article 5.
Article 13 (right to an effective remedy) in conjunction with Article 2
The Court held that, given that the criminal investigation into Khizir Tepsurkayev’s abduction had been ineffective, the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, had been undermined, in violation of Article 13 of the Convention.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).