Information Note on the Court’s case-law 98
June 2007
Bitiyeva and X v. Russia - 57953/00 and 37392/03
Judgment 21.6.2007 [Section I]
Article 38
Obligation to furnish all necessary facilities
Refusal by Government to disclose documents from ongoing investigation into an abduction and killing by servicemen or into allegations of harassment of the applicants: failure to comply with Article 38
Facts: On 25 January 2000 the first applicant, an active political figure who participated in anti-war protests, and her son were taken for questioning about their passports. According to the Government, they were arrested under vagrancy regulations. They were detained in the Chernokozovo detention facility, which the Government said was used as a reception and identification centre, although there were no documents to indicate its legal status prior to 8 February 2000, when responsibility was transferred to the Ministry of Justice of Chechnya. The first applicant complained of the conditions of her detention, in particular the lack of heating, overcrowding, poor food and hygiene, humiliation and being forced to witness the ill-treatment of other detainees, including her son. While there, she suffered from serious respiratory, heart and inflammatory diseases and claimed that she was denied medical assistance. Her condition deteriorated rapidly and on 17 February 2000 she was transferred to hospital. In mid-March she was issued with a certificate stating that her alleged participation in illegal armed groups had been investigated but no incriminating evidence had been found. Neither the first applicant nor her son were ever charged with any crime in relation to their detention. The first applicant lodged a complaint with the Court in April 2000. In May 2003 the first applicant and her husband, son and brother were shot and killed at the first applicant's home in the middle of the night by masked men wearing uniforms which eye witnesses identified as belonging to the Special Forces. An investigation was started the same day. The crime scene was examined by experts and witnesses were questioned. However, according to the second applicant (the first applicant's daughter) no autopsy was ordered and the bodies of her relatives were washed and buried the same day. Although she requested victim status in November 2003, it was not granted until December 2005. The case was adjourned and reopened by a supervising prosecutor four times, but the offenders were never identified. The second applicant also complained that she and her family had been subjected to harassment by the authorities after the killings. Her brother had been detained and ill-treated, her aunt had been questioned and she herself had been stopped and questioned. Although she had received assurances from investigators regarding her safety, she had felt intimidated by to the nature of his questions, which she claimed were not confined to the question of harassment but touched upon her application to the Court. In the course of the proceedings before the Court, the Court requested the Government to submit various documents. However, citing Article 161 of the Russian Code of Criminal Procedure, the Government refused to produce certain documents on the grounds that they contained information about the military and personal information on the participants in the proceedings.
Law: The first applicant's complaints:
Article 3 – The second applicant, as the first applicant's heir, had standing to continue the proceedings. The evidence, including the applicant's own allegations and the findings of the European Committee for the Prevention of Torture on conditions in Chernokozovo at the material time, attested to a serious deterioration in the first applicant's health during her detention. The Government had been unable to explain what kind of medical treatment had been administered to her or to give any details of her treatment. Accordingly, the deterioration in the first applicant's health, compounded by the poor conditions of detention and lack of adequate medical care, had entailed a level of suffering which amounted to inhuman and degrading treatment.
Conclusion: violation (unanimously).
Article 5 – The first applicant was detained for 24 days, allegedly for vagrancy. However, even assuming that to have been the true ground for her detention, her detention was not in conformity with domestic law as under the relevant legislation a prosecutor's order should have been obtained and the detention should not have exceeded 10 days. In any event, the certificate issued to the first applicant in March 2000 stated that she was being investigated for alleged participation in illegal armed groups, so that the real reason for her detention was suspicion of a criminal offence. However, no charges were brought, no decision to detain or to release her was taken by a competent authority, and her detention was not formally linked to any criminal investigation. Accordingly, she had not benefited from the procedural safeguards applicable to persons deprived of their liberty and her detention was arbitrary and in total disregard of the requirement of lawfulness. This was compounded by the lack of any clear legal status for the detention centre in Chernokozovo. It was inconceivable that in a State subject to the rule of law a person could be deprived of his or her liberty in a detention facility over which for a significant period of time no responsible authority was exercised by a competent State institution. That situation fostered impunity for all kinds of abuses and was absolutely incompatible with the authorities' responsibility for individuals under their control. The first applicant's detention was therefore arbitrary and ran counter to the fundamental aspects of the rule of law.
Conclusion: violation (unanimously).
The second applicant's complaints:
Article 38 § 1 (a) – The Government had withheld disclosure of various documents from the investigation on the grounds that they contained information about the location and actions of military personnel and personal information about the participants in the proceedings. However, they had not asked the Court to make an order under Rule 33 § 2 of its Rules restricting, on national-security or privacy grounds, public access to documents deposited with the Court and Article 161 of the Code of Criminal Procedure, on which the Government relied, had already been found in previous cases not to preclude the disclosure of documents from a pending investigation file. The Government's explanations were insufficient to justify the withholding of the vital information requested by the Court and they had thus fallen short of their obligations to furnish all necessary facilities to the Court in its task of establishing the facts.
Conclusion: failure to comply (unanimously).
Article 2 – (a) Substantive aspect – The Court was entitled to draw inferences from the Government's failure to comply with Article 38 § 1 (a). Where an applicant had made out a prima facie case and the Court was prevented from reaching factual conclusions by the non-disclosure of relevant documents in the Government's possession, it was for the Government to argue conclusively why the documents could not serve to corroborate the applicant's allegations or to provide a satisfactory and convincing explanation of how the events in question occurred. The second applicant had submitted statements by eyewitnesses that indicated that the killers belonged to the military or special forces and her account was supported by an NGO which had reported the killings. She had therefore made out a prima facie case that her relatives had been extra-judicially executed by State agents. The Government had failed to provide any other explanation of the events. Their mere statement that the investigation had not found any evidence to support the involvement of Special Forces did not discharge them from the burden of proof. The deaths were therefore attributable to the State and no justification had been provided for the use of lethal force.
Conclusion: violation on account of the deaths (unanimously).
(b) Procedural aspect – Here, too, the Court could draw strong inferences from the Government's failure to produce key elements of the investigation, the assumption being that the disclosure was selective and intended to demonstrate the effectiveness of the investigation. Although certain important steps were taken on the day of the killings, the investigation into the deaths was never in fact completed and the individuals responsible were not identified or indicted. Even the most basic facts did not appear to have established such as the number of attackers, the sequence of events, the routes and weapons used or the motive for the killings. The second applicant was not granted victim status until 2005 and the only information communicated to the victims concerned procedural matters.
Conclusion: violation on account of the failure to hold an effective investigation (unanimously).
Article 3 – The Court followed its previous case-law in declining to extend the application of Article 3 to the relatives of persons who had been killed in violation of Article 2 (as opposed to the relatives of the victims of enforced disappearances or to cases of unjustified use of lethal force by State agents).
Conclusion: no violation (five votes to two).
Article 13 – The State had failed in its obligation under this provision as the ineffectiveness of the criminal investigation had undermined the effectiveness of other potential remedies, including civil remedies.
Conclusion: violation of Article 13 in conjunction with Article 2 (unanimously).
Article 34 – There was no direct evidence to support the second applicant's assertion that the killings of the first applicant and her family members were related to her application to the Court. A breach of Article 34 could not be found on the basis of mere supposition, even if the brutal and unresolved killing of the first applicant would inevitably have had a “chilling effect” on other current and prospective applicants, especially those living in Chechnya. As to the alleged intimidation of the second applicant, the Court was unable to conclude that the incident to which she had referred had any relation to her application to the Court as opposed to a security check. As regards the questioning of the second applicant by the investigators, the transcripts indicated that the interviews related mostly to the public prosecutor's duty to collect information about the applicant's criminal complaints and that the questions about her application to the Court were not central. She had not, for example, been requested to certify the authenticity of her complaints or to give details about their content.
In sum, the Court did not have sufficient material before it to conclude that the Government had put undue pressure on the second applicant in order to dissuade her from pursuing her application to the Court.
Conclusion: no breach of the obligation (unanimously).
Article 41 – EUR 10,000 for non-pecuniary damage sustained by the first applicant and EUR 75,000 for non-pecuniary damage sustained by the second applicant on account of the unlawful killing of four members of her family, the failure to investigate the killings and the lack of effective remedies.
See also, for previous failures to comply with Article 38: Shamayev and Others v. Georgia and Russia (no. 36378/02), reported in Information Note no. 74; Imakayeva v. Russia (no. 7615/02) – Information Note no. 91; Baysayeva v. Russia (no. 74237/01) – Information Note no. 96; and Akhmadova and Sadulayeva v. Russia (no. 40464/02) Information Note no. 97.
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