Dubayev and Bersnukayeva v Russia
Case No. 30613/05 and 30615/05
Judgment date: 11 February 2010
The applicants’ sons were members of an illegal armed group in Chechnya. They surrendered to an infantry regiment of the Russian Federal Forces Group ‘West’ on 14 March 2000, during an amnesty announced by the State Duma. On 17 March 2000, documents were issued in their names recording the voluntary surrender of their weapons and setting out the decision of the authorities not to institute criminal proceedings against them in application of the Amnesty Act. The applicants had not witnessed the abduction and the accounts of the events are based on the witness statements collected by them after the disappearance of their sons. The Government submitted that the two men had been released. The Court specifically noted the absence of proper records in respect of their detention and release. The applicants have had no news of their sons since 17 March 2000.
The Court found that, in the context of the Chechen conflict, the men must be presumed dead given their absence for several years following unacknowledged detention by State servicemen. As the Russian Government failed to provide any evidence of their detention or release, and the two men had last been seen alive in State custody, the Court found the deaths attributable to the State. In the absence of any justification in respect of the use of lethal force by State agents, there was a violation of Article 2.
The Court also found a breach of the procedural aspect of Article 2 on account of the authorities’ failure to carry out an effective investigation into the disappearances.
There was a violation of Article 3 in respect of the applicants’ suffering as a result of their sons’ disappearance.
The Court further found that the applicants’ sons were 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 the 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.
Both applicants were awarded 60,000 EUR in respect of non-pecuniary damages.