Published: 12 Jul 2007

Magomadov and Magomadov v Russia

Case Summary

Case No. 68004/01
Judgment date: 12 July 2007

Facts

The case concerns the detention and disappearance of applicants’ brother in October 2000. Following the case submission to the European Court, the second applicant also alleged that in April 2004 his other brother, the first applicant, disappeared in suspicious circumstances.

According to the applicants, on 2 October 2000, an armed unit of the Federal Security Service (FSB) searched their house. The applicants’ brother was arrested and driven away by men in military uniforms, who produced no documents. He has not been seen since. Immediately after his arrest the family started looking for him. They complained about their brother’s disappearance to several state departments, including the FSB and regional and local Prosecutors. On 12 October 2000 the head of the criminal police of the Oktyabrskiy Temporary Department of the Interior (VOVD) in Grozny issued a certificate stating that on 2 October 2000 applicants’ brother had been detained in Kurchaloy on suspicion of having committed a serious crime, however, released in the morning of 3 October 2000. There were several other speculation by various law-enforcement agencies into the circumstances and reasons of applicants’ brother’s detention. One fact was common though that he had been brought to the Oktyabrskiy VOVD on 2 October 2000, released in the morning on 3 October 2000 and that no records pertaining to his detention or release were available. On 9 December a criminal investigation into the applicants’ brother’s kidnapping was opened. It was adjourned and reopened on several occasions, and failed to identify the perpetraitors or to establish the whereabouts of the applicants’ brother. While the case was in progress before the European Court, the first applicant disappeared under suspicious circumstances, and was last contacted on 19 April 2004.

Judgment

In respect to Article 2, the Court held that applicants’ brother must be presumed dead as there has been no news of him for the six years subsequent to his unacknowledged detention. There was sufficient evidence to find that the detention was carried out by unidentified State servicemen, so as to attribute the actions of the perpetrators to the Russian Federation, in breach of Article 2.

The Court further found that the investigation into the disappearance of applicants’ brother was inadequate. In addition to numerous delays in the investigation, the authorities had failed to identify and question the officers of the FSB who had participated in the arrest. There was accordingly a violation of the procedural limb of Article 2.

In respect of Article 3, the Court found that the applicants suffered continuing distress and anguish as a result of the disappearance of their brother and their inability to find out what happened to him. In this context, the Court held that the manner in which the applicants’ complaints were dealt with by the authorities constituted inhuman treatment contrary to Article 3.
The Court lastly held that the applicants’ brother had been held in unacknowledged detention in the complete absence of the safeguards required under Article 5, thus finding a violations.

The Court awarded the second applicant EUR 40,000 in respect of non-pecuniary damages.

Comment

Following the disappearance of the first applicant in 2004, the second applicant had also claimed that it was connected with their application to the Court and gave rise to violation of Article 34. The Court, however, considered that it did not have sufficient material before it to conclude that the first applicant’s alleged disappearance had been connected with his application, that he had been arrested by the representatives of the State at all or that the respondent Government had otherwise violated their obligations under Article 34 not to hinder the right of individual petition.