Information Note on the Court’s case-law 102
November 2007
Kukayev v. Russia - 29361/02
Judgment 15.11.2007 [Section V]
Article 38
Obligation to furnish all necessary facilities
Government's refusal to disclose documents from ongoing investigations into the disappearance of the applicant's relatives in Chechnya during military operations: failure to comply with Article 38
[This summary also covers the Judgment of the case Khamila Isayeva v. Russia, no. 6846/02, 15 November 2007]
Facts: In both these cases the applicants had lodged applications with the European Court complaining of the disappearance and death or presumed death of close relatives during Russian military operations in Chechnya. Although criminal investigations had been launched, they were still pending several years later and there had been no prosecutions. Following the communication of the case, the Government were repeatedly asked for copies of the criminal investigation files. However, as in a number of other recent cases involving Russia, they declined to produce certain documents on the grounds that their disclosure would violate Article 161 of the Russian Code of Criminal Procedure as the documents concerned contained information of a military nature or personal data on witnesses and other participants in the criminal proceedings.
Law: Article 38 § 1 (a) – The Government had on several occasions been asked to submit copies of the investigation files, which the Court considered contained evidence that was crucial to the establishment of the facts. The reasons cited by the Government for refusing to disclose the relevant documents were inadequate and did not justify the withholding of the key information requested.
Conclusion: failure to comply (unanimously).
Other provisions – In Kukayev, the Court found violations of Articles 2 and 3 (substantive and procedural limbs) and of Article 13 (in conjunction with Article 2). In Khamila Isayeva, it found violations of Articles 2 (substantive and procedural limbs), 3, 5 and 13 (in conjunction with Article 2). The applicants were awarded sums in respect of pecuniary and non-pecuniary damage.
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; Akhmadova and Sadulayeva v. Russia (no. 40464/02) Information Note no. 97; and Bitiyeva and X v. Russia (nos. 57953/00 and 37392/03) Information Note no. 98.
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This summary by the Registry does not bind the Court.
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