Published: 24 May 2011

Malika Alikhadzhiyeva v Russia

Case Summary

Case No 37193/08
Judgment date: 24 May 2011

Facts

The applicant’s husband, Ruslanbek Alikhadzhiyev (brother of the former Speaker of the Chechen Parliament, see the case of Alikhadzhiyeva v Russia (No. 68007/01)) was detained at a checkpoint of the Russian federal forces near the village of Meskert-Yurt on 2005 and then disappeared. Several witnesses, passing through the same checkpoint at the time, submitted written statements confirming to have seen either the applicant’s husband himself, or his car driven by others. There has been no news of him since 20 April 2005.

The applicant submitted that, while she had kept no copies of her complaints, she had alerted local authorities to her husband’s disappearance as early as the night of his disappearance. An investigation was opened only five months later on 12 October 2005. The investigation was suspended and reopened several times. In June 2006, a local town court declared the applicant’s husband a missing person.

While the Government did not challenge the facts submitted by the applicant, they however claimed that based on the domestic investigation into the disappearance of her husband, there was no evidence to confirm that he had been abducted during a security operation. Despite specific requests by the Court, the Government did not disclose most of the contents of the criminal case, referring to the incompatibility of such an action with Russian legislation.

Judgment

The Court found a violation of Article 2, both on substantive and procedural grounds. The Court firstly established that the kidnapping and unacknowledged detention of the applicant’s husband was attributable to the State agents. It observes that the applicant’s account of events remained consistent both throughout the domestic investigation and before the Court, and even the sparse materials submitted by the Government were in line with applicant’s submissions. In the absence of the applicant’s husband or of any news of him for more than five years, the Court considered that he must be presumed dead following his unacknowledged detention by State agents, in violation of Article 2.

As to the effectiveness of the investigation, the delay of five months before an investigation was opened, when crucial action should have been taken in the first days after the event, and the failure to take a number of essential investigative steps, could not be compliant with the procedural requirements of Article 2. Furthermore, although the applicant was granted victim status, she had limited or no access to the case files throughout the investigation. Lastly, the investigations were still pending having been repeatedly suspended and resumed. There was, therefore, a violation of Article 2 for the lack of a timely and effective investigation.

In relation to the applicant, the Court found a violation of Article 3 in that she had suffered distress and anguish as a result of the disappearance of her husband.

The Court further found that the applicants’ relative was held in unacknowledged detention without any safeguards, amounting to a particularly grave violation of Article 5 of the Convention.

Reiterating that in circumstances, such as these, where a criminal investigation into a disappearance had been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, had consequently been undermined, the State had failed in its obligation under Article 13 in conjunction with Article 2 of the Convention.

The applicant was granted EUR 60,000 in respect of non-pecuniary damages.