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Citations:
Bluebook 21st ed.
Bazorkina v. Russia, 16 HUM. Rts. Case DIG. 1219 (2006).
ALWD 6th ed.
, Bazorkina v. russia, 16(Issues 11 and 12) Hum. Rts. Case Dig. 1219 (2006).
APA 7th ed.
(2006). Bazorkina v. russia. Human Rights Case Digest, 16(Issues 11 and 12),
1219-1224.
Chicago 7th ed.
"Bazorkina v. Russia," Human Rights Case Digest 16, no. Issues 11 and 12 (July-August
2006): 1219-1224
McGill Guide 9th ed.
"Bazorkina v. Russia" (2006) 16:Issues 11 and 12 Human Rights Case Digest 1219.
MLA 8th ed.
"Bazorkina v. Russia." Human Rights Case Digest, vol. 16, no. Issues 11 and 12,
July-August 2006, p. 1219-1224. HeinOnline.
OSCOLA 4th ed.
'Bazorkina v. Russia' (2006) 16 Hum Rts Case Dig 1219
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I6 HRCD [ZooS-zoo6]
:AOKN v.RUSI
Right to life - violation Article 2
Prohibition oftorture - violation/no violation Article 3
Right to libertyand security - violation Article5
Right toan effective remedy - violation Article 13
Anguish and distress resulting from the "disappearance" inChechnya ofthe applicant's son
and the ineffectiveness ofthe ensuing investigation.
In a judgment delivered on 27 July zoo6 in the case ofBazorkina v. Russia, the
European Court ofHuman Rights held unanimously:
- that there had been a violation of Article z (right to life) ofthe European
Convention on Human Rights in respect of the disappearance of the
applicant's son, Khadzhi-Murat Yandiyev;
- that there had been a violation ofArticle z ofthe Convention in respect of
the failure to conduct an effective investigation into the circumstances in
which Mr Yandiyev disappeared;
- that there had been no violation of Article 3 (prohibition of inhuman or
degrading treatment) in respect of the failure to protect Mr Yandiyev from
ill-treatment;
- that there had been a violation ofArticle 3 in respect of the applicant, Ms
Bazorkina;
- that there had been a violation ofArticle 5 (right to liberty and security)
with regard to Mr Yandiyev's detention; and
- that there had been a violation of Article 13 (right to an effective remedy)
in respect of the violations of the applicant's rights under Articles z and 3.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the
applicant EUR 35,0oo for non-pecuniary damage and EUR Iz,141 for costs and
expenses, to be paid to the applicant's legal representatives.
This judgment became final on ii December zoo6 in accordance with Article
44(z)(c) ofthe Convention, when the panel ofthe Grand Chamber rejected the
request to refer the case under Article 43.
x6 HRCD [zoo5-zoo6]
i.Principal facts
The applicant, Fatima Sergeyevna Bazorkina, is a Russian national who was born
in 1938 and lives in the town ofKarabulak, Ingushetia (Russia). She complained
on her own behalf and on behalf ofher son, Khadzhi-Murat Yandiyev, born on
27 August 1975.
The applicant submitted that in August 1999 her sonwent to Grozny, Chechnya,
and that she had not heard from him since.
On zFebruary zooo,she saw her son being interrogated by a Russian officer in
a television news programme about the capturing of the village ofAlkhan-Kala
(also called Yermolovka). She later obtained a full copy of the recording, made
by a reporter for NTV (Russian Independent TV) and CNN. At the end of the
questioning the officer in charge gave instructions for the soldiers to "finish off"
and "shoot" the applicant's son. The CNN journalists who filmed the interrogation
later identified the interrogating officer as Colonel-General Alexander Baranov,
the commander of the troops which captured Alkhan-Kala.
Immediately after z February zooo the applicant began a search for her son, visiting
detention centres and prisons and applying tovarious authorities. In August
zooo she was informed that her son was not being held in any prison in Russia.
In November zooo a military prosecutor issued adecision not toopen a criminal
investigation into Mr Yandiyev's disappearance. A month later the same
prosecutor stated that there were no reasons to conclude that military servicemen
were responsible for the actions shown in the videotape.
InJuly 2oo1 a criminal investigation was opened by the Chechnya Prosecutor's
Office into the abduction of Mr Yandiyev by unidentified persons. It later transpired
that he had been placed on a missingpersons list.
In November 2003 Ms Bazorkini's application to the European Court of
Human Rights was communicated to the Russian Government. Following the
Court's decision on admissibility, the Government submitted a copy ofthe criminal
investigation file.
The investigation established that the applicant's son had been detained on I
February zoo in Alkhan-Kala. Immediately after arrest he was handed over to
servicemen of the Ministry ofJustice for transportation to a pre-trial detention
centre. Mr Yandiyev did not arrive at any pre-trial detention centre and his subsequent
whereabouts could not be established.
Colonel-General Baranov was questioned twice about the events and stated
that he had not given an order to "shoot"Mr Yandiyev, but that he had intended
to stop his aggressive behaviour and to prevent possible disturbances. He stressed
1220
I6 HRCD [zoo5-zoo6]
that the servicemen surrounding him were not his subordinates and thus could
not have taken orders from him.
Between July zoo and February zoo6 the investigation was adjourned and
reopened six times. The majority of documents in the case file were dated after
December z003.
At different stages oftheproceedings several orders were issued by the supervisingprosecutors,
setting out the steps to be taken by the investigators. In particular,
in December 2003 one prosecutor, noting that no real investigation had taken
place, ordered that action be taken to identify the detachments offederal forces
that could have been involved in the special operation in Alkhan-Kala in early
February zooo and to establish what had happened to the detained persons.
z. Procedure of the Court
The application was lodged with the European Court of Human Rights on ii
April zooi and declared admissible on 15 September 2005. A hearing took place
in public in the Human Rights Building, Strasbourg, on 8 December 2005.
3. Summary of the Judgment
Complaints
The applicant submitted that her son was ill-treated and killed by federal forces
and that no effective investigation was carried out into the circumstances of his
ill-treatment and "disappearance" She also maintained, for herself, that she suffered
anguish and emotional distress in connection with the "disappearance" of
her son. She relied on Articles 2,3, 5,6, 8 and 13.
Decision of the Court
Article2 ofthe Convention
The presumed death of Mr Yandiyev
The Court recalled that detained persons were in avulnerable position and that the
authorities were under a duty to protect them. The obligation on the authorities
to account for the treatment of a detained individual was particularly stringent
where that individual died or disappeared after being taken into police custody.
The Court observed that it was undisputed that Mr Yandiyev was detained
during a counter-terrorist operation in the village ofAlkhan-Kala on z February
zooo.It further took into account the videotape and numerous witness statements
contained in the criminal investigation file confirming that he was interrogated by
1221
I6 HRCD [zoo5-oO6]
a senior military officer who, at the end of the interrogation, said that he should
be executed. It finally noted that there hadbeen no reliable news ofthe applicant's
son since that date.
In the absence of any plausible explanation submitted by the Russian
Government, and taking into account that no information has come to light
concerning his whereabouts for more than six years, the Court was satisfied that
Mr Yandiyev had to be presumed dead following unacknowledged detention.
Noting that the authorities did not rely on any ground ofjustification in respect
of use oflethal force by their agents, it followed that liability is attributable to
the Russian Government. Accordingly, the Court found that there had been a
violation ofArticle z.
The inadequacy ofthe investigation
The Court noted that, the investigation was opened ayear and five months after the
events at issue and was plagued by inexplicable delays. Furthermore, it appeared to
the Court that most ofthe actions necessary for solving the crime occurred only
after December 2003, when the applicant's complaint was communicated to the
Russian Government. The Court found that those delays alone compromised the
effectiveness of the investigation and could not but have had a negative impact
on the prospects ofarriving at the truth.
The Court also noted a number ofserious omissions including, in particular,
the failure to identify or question some ofthe servicemen in charge ofthe detainees.
Many ofthe omissions were evident to the prosecutors, who ordered certain
steps to be taken. However, their instructions were either not followed or were
followed with an unacceptable delay.
In the light ofthose circumstances, the Court found that the authorities failed
to carry out an effective criminal investigation into the circumstances surrounding
the disappearance and presumed death of Mr Yandiyev and held that there had
been a violation of Article z.
Article3 ofthe Convention
Concerning the applicant's complaint regarding the suffering inflicted upon her
in relation to her son's disappearance, the Court noted that the applicant was Mr
Yandiyev's mother, and had seen her son, on video, being questioned and led off
by soldiers following remarks inferring that he would be executed. Furthermore,
despite her requests, the applicant had never received any plausible explanation
or information as to what became of her son following his detention. The
Court found that those facts caused her to suffer distress and anguish. It further
considered that the manner in which her complaints had been dealt with by the
1222
16 HRCD [zoo5-2oo6]
authorities could be construed as amounting to inhuman treatment. The Court
therefore concluded that there had been a violation ofArticle 3in relation to the
applicant.
However, the Court held that there was insufficient evidence to support her
allegation that her son had been subjected to ill-treatment in detention and held
that there had therefore been no violation ofArticle 3in that respect.
Article5ofthe Convention
The Court observed that although it was established that the applicant's son was
detained on z February zooo by the federal authorities, his detention was not
logged in the relevant custody records and there existed no official trace of his
subsequent whereabouts or fate. The Court considered that fact in itselfto be a
most serious failing since it enabled those responsible for an act of deprivation
of liberty to conceal their involvement in a crime, to cover their tracks and to
escape accountability for the fate of a detainee and was incompatible with the
very purpose of Article 5.
The Court further considered that the authorities should have been alert to
the need to investigate more thoroughly and promptly the applicant's complaints
that her son was detained by the security forces and taken away in life-threatening
circumstances. Instead they failed to take prompt and effective measures to safeguard
Mr Yandiyev against the risk ofdisappearance. Moreover, the Court noted
that as late as December zooo the authorities continued to deny the involvement
offederal servicemen in Mr Yandiyev's apprehension.
Accordingly, the Court found that Mr Yandiyev was held in unacknowledged
detention in the complete absence of the safeguards contained in Article 5 and
that there had been a violation ofthe right to liberty and security ofperson guaranteed
by that provision.
Article13 ofthe Convention
In view of its findings with regard to Articles z and 3,the Court found that the
applicant should have been able to avail herself ofeffective and practical remedies
capable ofleading to the identification and punishment ofthose responsible and
to an award ofcompensation. However, in view ofthe fact that the criminal investigation
was ineffective, the Court found that the State had failed in its obligation
under Article 13. Consequently, it found that there had been aviolation ofArticle
13 in connection with Articles z and 3.
The Court considered that no separate issues arose in respect ofArticle 13
in connection with Article 5,which in itselfcontained a number ofprocedural
guarantees related to the lawfulness ofdetention.
I6 HRCD [zoo5-zoo6]
OtherArticlesofthe Convention
The Court found that no separate issues arose under Articles 6 and 8 and that
there had been no failure on the part of the Russian Government to comply with
Articles 34 and 38, Section i(a).
Article41 ofthe Convention
Under Article 41 (just satisfaction) of the Convention, the Court awarded the
applicant EUR 35,000 for non-pecuniary damage and EUR 11,141 for costs and
expenses, to be paid to the applicant's legal representatives.
Judgment wasgiven by a Chamberofseven judges,composedasfollows:
Christos Rozakis (Greek), President, Loukis Loucaides (Cypriot), Franqoise
Tulkens (Belgian), Peer Lorenzen (Danish), Nina Vaji (Croatian), Anatoli Kovler
(Russian), Elisabeth Steiner (Austrian), Judges.