Published: 4 Dec 2008

Bersunkayeva v Russia

Case Summary

Case No.27233/03
Judgment date: 4 December 2008

Facts

The applicant claimed that on 13 June 2001 her son had been beaten and then taken away from their family home by armed men in camouflage uniforms and masks. According to the applicant’s account, the abductors had acted in a manner similar to that of a security operation and had spoken Russian without an accent. There has been no news of the applicant’s son since.

The applicant attempted to find her son and stated that she was told by an employee of the district administration that during the night in question, twelve persons, including her son, had been apprehended and held at the Chechen Federal Security Service (FSB) Department of Urus-Martan. Over the next few days this was confirmed by various officials, only to be rejected shortly after. On 28 June 2001, a criminal investigation was opened, being suspended and reopened subsequently on several occasions. In September 2003, the applicant was acknowledged as a victim in the criminal case in connection with her son’s abduction by “unidentified individuals wearing camouflage uniforms and masks and armed with automatic firearms.” No involvement of federal servicemen in the detention or abduction of applicant’s son was established.

Judgment

In determining the applicant’s claims under Article 2, the Court considered that her submissions were coherent and convincing in presenting the picture of her son’s abduction. Having regard to previous cases concerning disappearances of people in Chechnya before the Court, and the absence of the applicant’s son or any news of him for over seven years, the Court found that he must be presumed dead following unacknowledged detention by State agents. It therefore found a violation of Article 2.

On account of the authorities’ failure to investigate the disappearance effectively and adequately, the Court found a violation of the procedural limb of Article 2.

No violation of Article 3 was found in regards to the applicant’s son’s beating, as the evidence presented was not sufficiently strong and clear. However, the distress and mental suffering endured by the applicant over a long period of time due to her son’s disappearance and the manner in which her complaints were dealt with were considered to be inhuman treatment in violation of Article 3.

Russia had also violated Article 5 as the applicant’s son’s detention had not met any of the conditions provided by this provision and was contrary to Russian domestic law.

The failure to conduct a thorough and effective investigation, and the lack of any other effective remedies available to the applicant constituted a breach of Article 13, in connection with Article 2.

The Court also found that the failure to provide the full investigative file involved a failure to comply with Article 38(1)(a).

The applicant was awarded EUR 35,000 in respect of non-pecuniary damages.