Published: 21 Jun 2011
Isayev and Others v Russia
Case No. 43368/04
Judgment date: 21 June 2011
The applicants are relatives of Zelimkhan Isayev. On the evening of 9 May 2004 a group of masked armed men burst into Zemlikan Isayev’s house in Goi-Chu, Chechnya. Despite finding nothing incriminating, they handcuffed him and took him to the Department of the Interior’s detention facility. On 12 May 2004 he was transferred to hospital, where his brothers visited him. He told them that during his detention he had been burned with cigarettes, beaten with truncheons and had an electric current passed through his genitals. Medical records dated 12 May 2004 showed that he had suffered severe injuries consistent with his account. He had agreed to sign some documents which he had not read. He died on 16 May 2004. In July 2004, the applicants asked the prosecutor to open criminal proceedings against the FSB servicemen for torturing their brother. The prosecution repeatedly decided not to open criminal proceedings against the FSB officers as it found no grounds to do so. The applicants submitted that they were intimidated by the head of the local village administration and by other authorities, as a result of which they did not dare to challenge this decision.
The Government argued that the injuries of Zemlikan Isayev were sustained when officers were forced to restrain him as a result of his attempts to resist arrest. The Court rejected the Government’s claim of resistence to the arrest and found that it had failed to provide a plausible or satisfactory explanation for the applicants’ relative’s death. There was therefore a violation of Article 2.
The Court also found a breach of Article 2 as a result of the failure to carry out an effective investigation into the death of applicants’ relative. The Court specifically deplored the fact that no post-mortem examination had been conducted, that Federal Security Bureau (FSB) officers, who participated in the arrest, had not been interviewed and that three years had passed before the decision was made to investigate the death.
The Court also found a violation of Article 3 and considered that “the ill-treatment inflicted upon Isayev was particularly cruel and severe”.
It further held that there was a breach of Article 13 in conjunction with Article 2 as no remedies were available to the applicants capable of leading to the identification and punishment of those responsible or to an award of compensation.
The applicants were awarded EUR 78,000 in non-pecuniary damages.
The Government had requested that the application be declared inadmissible as the applicants had failed to exhaust all domestic remedies. The Court, refusing the request, emphasised that the rule of exhaustion of domestic remedies must be applied flexibly and without excessive formalism. It is essential to have regard to the circumstances of the individual case, taking realistic account not only of the existence of formal remedies but also of the personal circumstances of the applicant. It would have to examine whether the applicant had done everything that could reasonably be expected of him.