European Court: Russia Violates Right to Life and Right to Respect for Private and Family life

18 April 2013

Today, the European Court of Human Rights found Russia to have violated the European Convention on Human Rights in two cases: Askhabova v Russia (54765/09) and Ageyevy v Russia (7075/10). Askhabova concerns the abduction of Ms Ashkhabova’s son in Chechnya in 2009. Ageyevy concerns the removal of the applicants’ adopted children from their care. In both cases, the applicants were represented by the European Human Rights Advocacy Centre (EHRAC), based at Middlesex University, and the Russian NGO, Memorial HRC. The applicant in Askhabova was awarded 60,000 EUR in damages, and in Ageyevy 55,000 EUR together.

Askhabova v Russia

Abdul-Yazi Askhabov, the applicant’s son, was abducted without explanation by three armed Chechen men in camouflage uniform, in the early morning of 5 August 2009 from his home in Shali, Chechnya, and driven away in the direction of the village of Noviye Atagi. A military checkpoint was located on that road at the time. The applicant appealed immediately for information at the local department of the interior, the Prosecutor’s office, and at the Envoy for Human Rights and Freedoms in Chechnya. None of the local law-enforcement agencies accepted responsibility for Abdul-Yazi’s abduction, and he has not been seen since.

The Government argued that there was no evidence to suggest Abdul-Yazi was dead, or that State agents were involved in his abduction. They claimed that the investigation had not been completed, but so far all possible measures under the national law were being taken to solve the crime. They also argued that the applicant could have applied for damages in the civil courts.

The Court found that applicant’s son must be ‘presumed dead’ following unacknowledged detention and that the death can be attributed to the State, in violation of the right to life (Article 2). The investigation was found to be ‘ineffective’, given that the case was suspended 8 times and necessary steps were not taken, and the Court reiterated that “the authorities cannot leave it to the initiative of the next of kind to request particular lines of inquiry”. The Court held that the reluctance of the local police to investigate, given the applicant’s insistence on police involvement, was a significant factor in finding violations (substantive and procedural) of Article 2.

The applicant argued that her son’s disappearance and the failure to investigate it resulted in ‘mental suffering’ in violation of Article 3 (prohibition of inhuman or degrading treatment). This was upheld by the Court, especially given that she “never received any plausible explanation or information about what became of him following his arrest”. A ‘particularly grave’ violation of Article 5 (right to liberty) was found on account of his unacknowledged detention, and a violation of Article 13 found due to the lack of effective remedies available to the applicant.

This case is particularly significant as the first time that the special police battalion in Kadyrov’s name was linked directly to the abduction.

Ageyevy v Russia

In this case, the applicants had adopted two children in 2008 from foster care. Following an incident in 2009 when one of the children was found with burns on his face, and at the foot of the stairs, the applicants took him to hospital to get checked out. His condition was described as ‘serious’. On being discharged from hospital, the applicants were informed that the children were to be removed due to the “immediate threat to their health and life”. The applicants challenged the decision on numerous occasions but were denied access to the children and the adoption was subsequently revoked by a decision of the Preobrazhenskiy District Court. At the same time, criminal proceedings were brought against the applicants on various charges including ‘non-fulfilment of duties relating to the care of minors’. Some of the evidence used in court had been obtained by members of the press who had gained access without the consent of the applicants to the child whilst at hospital. The second applicant was sentenced to a cumulative sentence of eighteen months’ ‘correctional’ work.

The applicants brought the case to the European Court, arguing violations of Articles 6, 8, 13 and 14 in relation to the order to remove the children from their care. The Government argued that the removal was lawful and necessary. Under the ‘right to respect for private and family life’ (Article 8) the Court found that the initial removal of the children into public care had been in accordance with the relevant law and therefore did not violate the Convention. However, the court decision to revoke the adoption was seriously deficient and State authorities had overstepped the margin of appreciation in taking such drastic action, which was in violation of Article 8.

The lack of access to the children during this period likewise violated Article 8, as did the conduct of hospital staff, in giving the media access to information about the child and his condition and enabling photos to be taken without “seeking the authorisation of, or even informing, the applicants” .There were further violations of Article 8 for failing to investigate unauthorised leaking of confidential information relating to the adoption and in the domestic court’s failure to protect the second applicant’s right to a reputation as a result of the sensationalist and defamatory press coverage.