Diritto processuale penale
Indagini preliminari
05 | 10 | 2021
The ineffective investigation into the abduction and subsequent disappearance of a person violates the art. 2 of the European Convention on Human Rights
Denise Campagna
The Third Section of the European Court
of Human Rights (ECHR), with a judgement of October 5th 2021, ruled
against Russia for a violation of art. 2 and 3 of the European Convention on
Human Rights which respectively guarantee the right to life and the prohibition
of torture.
The applicants – the parents and wife of
a Russian citizen – accused the respondent State of the abduction of their
relative, Mukhamed Khutiyev, by state agents in Dagestan in 2010, his
subsequent disappearance and the ineffectiveness of the investigation into the
case. In particular, it was argued that there had been a violation of the
substantive and procedural limbs of art. 2 of the Convention.
The European Court noted that it has
already adjudicated a series of cases concerning allegations of disappearances
in the Russian North Caucasus: the facts of the case in question, as highlighted
by the applicants, suggest that State agents were the perpetrators of the
abduction of Khutiyev; the documents submitted do not contain any indication
that he could have disappeared for other reasons or became victim of a crime
perpetrated by third parties. The documents from the criminal case file show only
that the victim was last seen when he was stopped at a checkpoint not far from
his place of work and from the place of the special counter-terrorism operation
that took place that same day. The local residents, who had witnessed the
incident, had told the applicants and their relatives about it, but the
investigators took no steps to verify that information or the applicant’s and
their relatives’ consistent submissions of Mr. Khutiyev’s arrest by
law-enforcement officers.
Strasbourg judges pointed out that the
documents submitted show the reluctance of the authorities to actively
investigate the matter: drawing inferences from the Government’s failure to
provide a plausible explanation as to what happened to Khutiyev after his
detention at the checkpoint, the Court found that it has been proven beyond
reasonable doubt that he was abducted by State agents in the circumstances
alleged by the applicants. There has been no reliable news of Mr. Khutiyev
since his arrest in October 2010 and this configured a life-threatening
scenario for the man, who is now believed to be dead following his unacknowledged
detention by State agents. In the absence of any submission to the contrary or
any explanations put forward by the Government, it was thus concluded that the
death of Khutiyev can be attributed to the respondent State and that the
substantive limb of art. 2 of the Convention has been violated.
Regarding the violation of the
procedural limb of the same article, the ECHR highlighted that the significant
delays in taking the most basic steps to verify the information received and
follow the most obvious lines of inquiry show the investigators’ failure to
take timely and effective steps to have the crime resolved, which is confirmed
by the investigators’ superiors’ criticism who had pointed out those
deficiencies. Moreover, the documents submitted also show that the
investigators consistently failed to provide the applicants with information on
the progress in the investigation.
In light of the foregoing, the European Court found that the national authorities were unable to carry out an effective criminal investigation into the circumstances of Khutiyev's disappearance and this led to the violation of the procedural limb of art. 2 of the Convention.
In conclusion, the applicants alleged the violation of art. 3 of the Convention (Prohibition of torture) as the disappearance of Khutiyev caused them severe mental suffering. The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of those who disappear. In this case, the applicants must be considered victims of a violation of this article on account of the distress and anguish they have suffered, and continue to suffer, as well as because of their inability to ascertain Khutiyev's whereabouts, given the way their complaints were dealt with and the inability of national authorities to carry out an effective investigation into the abduction.
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