Published: 15 Nov 2007

Kukayev v Russia

Case Summary

Case No. 29361/02
Judgment date: 15 November 2007

Facts

The applicant’s son was a policeman in a special police unit (OMON) of the Chechen Department of Interior Affairs. He was detained by federal military servicemen in Grozny on 26 November 2000. He was then taken in a vehicle, together with a number of other detainees, to another site, where he and one other detainee were ordered to leave the vehicle and led away by servicemen. The other detainees reported that they heard gunshots shortly afterwards. The following day, the applicant learned that his son had been detained. He immediately made enquiries with the Department of the Interior and was told that his son had not appeared for work. An investigation was opened on 13 December 2000. The applicant’s son’s body was found by federal forces on 22 April 2001. The certificate recorded the date of death as 26 November 2000. Between December 2000 and January 2007 the investigation was adjourned and reopened at least six times and failed to identify those responsible for the killing of the applicant’s son.

Judgment

The Court reiterated that when an individual in State custody is injured, the burden of proof rests on the authorities to provide a satisfactory explanation. In the absence of any plausible explanation from Russia the Court found a violation of Article 2.

The investigation into applicant’s son’s disappearance “was plagued with inexplicable shortcomings”, including the failure to investigate military involvement, examine the site, carry out expert tests, pursue the investigation promptly and afford victim status to the applicant. Accordingly, the failure to conduct an effective investigation constituted a further breach of Article 2.

The failure in conducting effective and thorough investigation also constituted a breach of Article 13 in conjunction with Article 2, by way of failure to provide an effective remedy.

Russia had failed to provide information pertaining to the application as required under Article 38(1)(a).

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

Comment

The Court reiterated the burden on the State to provide satisfactory explanations for injuries or death occurring to victims within the control of State agents. In assessing the effectiveness of the investigation under Article 2, the Court drew inferences from the State’s behaviour, i.e. that Russia had provided only limited documents from the criminal investigation file.