Published: 8 Jan 2009
Abdulkadyrova and Others v Russia
Case No. 27180/03
Judgment date: 8 January 2009
The applicants are the wife (first applicant) and three children of Ayndi Dzhabayev, a bricklayer and the sole breadwinner of the family before his disappearance from Urus-Martan, Chechnya. According to the applicants, on 8 September 2002, a group of military servicemen in several armed personnel carriers surrounded their neighbour’s house. Following gunfire, they were ordered out of their house. The third applicant witnessed his father being ordered by a soldier at gunpoint to stand with his hands to the wall of the courtyard. A little later, when the fourth applicant went back into the courtyard, he saw no sign of his father or the soldiers. The three children and some neighbours then heard gunfire coming from both their and the neighbouring houses. The applicants’ family member has never been seen since. When the applicants returned to their house, they found it ransacked with bullet holes covering the walls and furniture. Later that evening, soldiers returned to conduct searches in the area.
From 9 September 2002 the first applicant made various attempts to establish the whereabouts of her husband by visiting and making applications to all the law enforcement and military offices in the district. In each case it was denied that her husband had been detained or that the authorities in question were responsible for the operation conducted on 8 September. Only on 20 November 2002 was a criminal investigation opened in respect of the kidnapping of the applicants’ family member. On 15 May 2003, the first applicant received a copy of a military report of 8 September 2002 which indicated that the her husband had been detained in their neighbour’s house. On 1 October 2003, the applicants’ family member was declared a missing person. The case has since been adjourned and reopened on a number of occasions. The investigation has failed to establish the whereabouts of applicants’ relative or identity any suspects. On 6 May 2006, the District Court, upon the first applicant’s application, declared her husband dead as of that day.
In establishing the State’s responsibility, the Court took note of the applicants’ submissions, witness statements, as well as undisputed information by the Government of the “administrative report” of 15 May 2003 confirming presence of military and security forces in the area. In the absence of any justification in respect of the use of lethal force by State agents, the Court found a violation of Article 2.
In addition, considering the delays throughout the criminal investigation, which not only demonstrated the authorities’ failure to act of their own motion, but also constituted a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime, the Court also found a procedural violation of Article 2.
In relation to the applicants, the Court found that they suffered, and continue to suffer, distress and anguish as a result of the disappearance of their close relative and their inability to find out what happened to him, which constituted violation of Article 3.
The Court further found that applicants’ relative was held in unacknowledged detention without any safeguards, amounting to a particularly grave violation of Article 5 of the Convention.
The Court also looked at the lawfulness and proportionality of measures during the search of applicants’ house, and found a violation of Article (right to respect to their home), and a violation of Article 1 of Protocol 1 due to the damage caused to their property during the search.
Considering the effectiveness of remedies, the Court found a violation of Article 13 in conjunction with Articles 2 and 8, and Article 1 of Protocol 1, noting that the criminal investigation into a violent death was ineffective and the effectiveness of any other remedy that might have existed, including civil remedies, had been undermined.
Reiterating the importance of the respondent Government’s cooperation in Convention proceedings, the Court found Russia in breach of its obligation under Article 38 (1) (a) of the Convention by failing to furnish all necessary facilities to assist the Court in its task of establishing the facts.
The applicants were awarded compensation for pecuniary losses – EUR 1,509 for the damage to the property and EUR 10,000 for damages resulting from the loss of earnings, as well as EUR 35,000 in respect of non-pecuniary damages.
In their original submissions, in addition to the property damage under Article 1 of Protocol 1, the applicants had also claimed loss of their source of income as a result of their relative’s arrest and disappearance. The Court considered this claim inadmissible, reiterating that future income could only be claimed as a “possession” once earned, or if there were an enforceable claim. However, in consideration of damages, the Court found there was a direct causal link between the violation of Article 2 in respect of applicants’ relative and the loss by the applicants of the financial support which he could have provided, and awarded 10,000 EUR resulting from the loss of earnings.