Last Updated on November 21, 2023 by LawEuro
Legal summary
November 2023
N.A. and Others v. Russia – 48523/19, 49533/19, 13837/20 et al.
Judgment 21.11.2023 [Section III]
Article 2
Article 2-1
Life
Effective investigation
Presumed death, attributable to the State, of applicants’ disappeared relatives after their abduction and unacknowledged detention by State agents in Chechnya; ineffective investigation: violation
Article 3
Degrading treatment
Inhuman treatment
Effective investigation
Ill-treatment of the brother of one of the applicants in detention and ineffective investigation in that regard; mental suffering caused by disappearance of applicants’ relatives: violation
Facts – The cases concerned five joined applications lodged by families who complained about the disappearance of their six male relatives after their alleged arrest by State agents in Chechnya between 2016 and 2020. Applications nos. 48523/19, 49533/19 and 49902/20 were linked to the same events as A.A. and Others v. Russia and concerned the disappearance of the applicants’ four relatives between December 2016 and January 2017 in the context of the detention and execution by the Chechen authorities of a number of persons suspected of either involvement in terrorism- related activities or of being homosexuals. The remaining two applications (nos. 13837/20 and 40452/20) concerned the disappearance of two of the applicants’ relatives in February and July 2020 respectively.
Law –
Jurisdiction – As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application.
Article 2:
(a) Procedural limb – The Court had established in Aslakhanova and Others v. Russia that there had been a systemic failure to investigate unacknowledged detentions and disappearances perpetrated in Chechnya between 1999 and 2006 and after that period. Considering the cases of disappearances in the region adjudicated by the Court after Aslakhanova and Others, the reactions of the Committee of Ministers of the Council of Europe over the years, as well as numerous reports by NGOs and international organisations on human rights violations in Chechnya, the Court recognised that the systemic problem persisted and extended not only to cases of disappearances and abductions, but more generally to the ineffectiveness of the investigations in Chechnya carried out in respect of the complaints under Articles 2 and 3 and involving allegations against State agents.
(i) Applications nos. 48523/19, 49533/19 and 49902/20 – The Court established, on the basis of the evidence before it, that the authorities had become aware of the disappearance of the applicants’ relatives, along with other persons, on 19 April 2017 at the latest. The investigators had had the opportunity to verify any alleged inconsistencies in the applicants’ statements given during the inquiry by obtaining further evidence but no steps had been taken in that direction. The information gathered by the investigators should have led to the opening of a fully fledged criminal investigation, which was necessary in any case involving allegations of deprivation of life perpetrated by State agents and conflicting versions of events, as in the present case. To that end the obligation to investigate under Article 2 applied to cases where a person had disappeared in circumstances which might be regarded as life-threatening. However, no fully fledged criminal investigation had been carried out and there had been eight refusals to open a criminal case which had been consistently found to be deficient by the investigators’ superiors. Accordingly, the applicants had not been obliged to appeal the last refusal and the Government’s objection as to non-exhaustion of domestic remedies, which had been joined to the merits of the procedural aspect, was therefore dismissed.
Conclusion: violation (unanimously).
(ii) Applications nos. 13837/20 and 40452/20 – The investigations were still ongoing. It appeared that no steps had been taken either to identify the man who had informed the applicant in application no. 13837/20 of her son’s detention at the police station or to examine its premises and registration logs to find out whether he had been detained there. The compulsory orders of the investigators’ superiors prescribing the investigators to take basic steps to elucidate the circumstances of the crime had still not been complied with. As to application no. 40452/20, the investigation in the criminal case had been opened after an unexplained delay of more than one month after the lodging of the formal complaint, the applicant’s and his relatives’ statements concerning the direct involvement of State agents in his brother’s abduction and subsequent detention on State premises had not been verified and the victims’ access to the criminal case file had been consistently refused.
(iii) Conclusion – In view of the foregoing, considering the absence of any submissions by the Government in applications nos. 13837/20 and 40452/20, and keeping in mind the systemic nature of the persistent problem of the ineffectiveness of investigations in Chechnya in respect of allegations of abductions perpetrated by State agents, the Court found that the investigation into the disappearance of the applicants’ relatives had been ineffective.
Conclusion: violation (unanimously).
(b) Substantive limb – The Government had not substantiated their assertion that the applicants’ missing relatives in applications nos. 48523/19, 49533/19 and 49902/20 had voluntarily left for Syria nor given any explanations as to the disappearance of the applicants’ relatives in applications nos. 13837/20 and 40452/20. Taking into account detailed and consistent submissions by the applicants and other relevant material, the Court was satisfied that all the applicants had made a prima facie case that their relatives had been abducted by State agents and had been missing since then. Following its findings in a number of cases where similar detention by State agents had been regarded as life-threatening, the lack of information concerning the fate of the applicants’ relatives several years after their disappearance supported that assumption. Accordingly, the evidence available permitted the Court to establish to the requisite standard of proof that the applicants’ missing relatives must be presumed dead following their unacknowledged detention by State agents. That being so, and in the absence of any plausible justification by the Government, their death should be attributed to the State.
Conclusion: violation (unanimously).
Article 3:
(i) Alleged ill-treatment of applicant’s brother and lack of investigation (application no. 40452/20) – The Court already established that the applicant’s brother had disappeared after been detained by State agents and must be presumed dead. Furthermore, it had no reasons to doubt the applicant’s submissions that at the time of his brother’s arrest he had been in apparently good health and that subsequently the applicant and his relatives had seen him at the police station looking pale and with a fresh burn injury on his arm. In the absence of any plausible explanations by the Government as to the origins of the burn injury received after his arrest, and taking into account the circumstances of his unacknowledged detention, the Court considered that the evidence before it enabled it to find beyond reasonable doubt that he had been ill-treated while in the hands of State agents. In addition, for the same reasons for its conclusion in relation to the procedural obligation under Article 2, it held that the Government had failed to conduct an effective investigation into his ill-treatment.
Conclusion: violation (unanimously).
(ii) The applicants’ mental suffering – The Court had found on numerous occasions that a situation of enforced disappearance gave rise to a violation of Article 3 in respect of the close relatives of the victim on account of the distress and anguish that they had suffered, and continued to suffer, as a result of their inability to ascertain the fate of their missing family members and of the manner in which their complaints had been dealt with.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 5 of a particularly serious nature on account of the detention of the applicants’ missing relatives by State agents without any legal grounds or acknowledgment of such detention; and a breach of Article 13 as the applicants did not have an effective domestic remedy for their grievances under Article 2.
Article 41: Sums ranging between EUR 2,000 and EUR 10,000 in respect of pecuniary damage; EUR 60,000 in respect of non-pecuniary damage to each applicant in applications nos. 48523/19, 13837/20 and 40452/20 and in each of the remaining applications to be shared jointly between the applicants thereof.
(See also Aslakhanova and Others v. Russia, 2944/06 et al., 18 December 2012, Legal Summary; A.A and Others v. Russia [Committee], 37008/19, 14 December 2021)
Leave a Reply