Ill-treatment of Avars by Chechens who were abducted, illegally detained, beaten and some of them disappeared. Violation of important rights of the ECHR
JUDGMENT
Adzhigitova and others v. Russia 22.06.2021 (app. no. 40165/07 and 2593/08)
SUMMARY
In retaliation for an investigated violent incident, Chechen soldiers stormed Avar homes, abducted many of them, took them to public places, and mistreated them. Some of them disappeared after the end of the operation.
The Court found that racial prejudice was not a causal factor for the military operation. It was not the Avar village community, but individuals – alleged members of an illegal armed group – who were the main targets of the operation. The ECtHR therefore held that there had been no violation of Article 14 in conjunction with Article 2.
However, the ECtHR found that of those arrested, only those belonging to the Avar community were severely beaten and received racist comments. The Chechen and Russian soldiers were released and the domestic authorities did not investigate the applicants’ allegations of ethnic discrimination. The ECtHR therefore found that there had been a violation of Article 14 in conjunction with Article 3.
The Court also held unanimously that there had been: failure of the State to comply with its obligations under Article 38, breach of Article 2 on the enforced disappearance of many applicants and lack of effective investigation, breach of Article 3 due to ill-treatment of certain applicants; the mental suffering of many applicants caused by the disappearance of their relatives, a violation of Article 13 in conjunction with Article 3, due to the lack of an effective domestic remedy on the mental suffering caused to the applicants by the disappearance of their relatives, and violation of Article 8 due to illegal investigations carried out.
PRINCIPAL FACTS
The applicants lived in the village of Borozdinovskaya (“the village”), which is mostly inhabited by Avars (people of a north-east Caucasian native ethnic group that originates in the territories of Dagestan), but also by several Chechen and Russian families. According to the applicants, Avar village residents had a tense relationship with their Chechen neighbours.
The Vostok Battalion is stationed about one hundred kilometres away – its members were recruited from ethnic Chechens.
After a violent incident perpetrated by an illegal armed group, a special operation was planned and entrusted to two groups of Vostok Battalion soldiers, in order to arrest the perpetrators, who were allegedly hiding in the forest next to the village. The Lieutenant of one unit ordered the subordinate military personnel to seal off the village and search the residents’ houses for firearms or other evidence of membership of the illegal armed group. He also ordered them to arrest the male residents of the village and gather them at the local school in order to identify those responsible for the attack. A number of the applicants’ relatives went missing as soon as the operation was over.
Relying on Article 2 (right to life), Article 3 (prohibition of inhuman or degrading treatment), Article 8
(right to respect for private and family life), Article 13 (right to an effective remedy), Article 14
(prohibition of discrimination) of the European Convention and Article 1 of Protocol No. 1
(protection of property) to the Convention, the applicants allege that soldiers unlawfully searched
their houses, arrested, ill-treated and killed local men, set four houses on fire, and abducted eleven local men; they also allege discrimination on account of their being of Avar ethnicity, and claim that the domestic authorities failed to carry out an effective investigation into the events.
THE DECISION OF THE COURT…
Article 14 (in conjunction with Articles 2 and 8):
Military servicemen had searched the village houses in a blanket, indiscriminate manner. Further, not all of the missing men were Avars. Racial prejudice had not been a causal factor behind the military operation. It was not the Avar community, but individual people – alleged members of an illegal armed group – who had been the main targets of the operation. The Court could therefore not conclude that the searches and the enforced disappearances had been the result of any different treatment of village residents on account of their ethnicity. Lastly, the applicants had not made a prima facie case that the searches or abductions were discriminatory in nature. Such a motive had not been clearly formulated in the complaints and requests for the opening of criminal proceedings. The domestic authorities had therefore had no obligation under the Convention to investigate it.
Conclusion: no violation (unanimously).
Article 14 (in conjunction with Article 3):
The domestic court had established that the Vostok Battalion personnel had arrested village residents, ill-treated and unlawfully detained them. The service personnel had arrested the village men in a blanket manner, disregarding their ethnic origin. However, at the school they had interviewed the village residents and released only those of them who were of Chechen or Russian ethnicity. The Avars had been kept in the school and beaten for several hours. The beatings had been accompanied by racist comments.
In the absence of any explanation from the Government, and taking into account the reported tension between Chechens (who staffed the Vostok Battalion) and Avars (who comprised part of the village’s population), the Court concluded that the applicants’ ethnic origin had been among the causal factors for their unlawful detention and ill-treatment (compare Antayev and Others v. Russia).
Regarding the State’s procedural obligation under Article 14, in the complaints lodged with the investigating authorities, several applicants had explicitly mentioned racist insults that had allegedly been made against them by military personnel at the time of their detention and ill-treatment at the local school. That had constituted a sufficient trigger for the State’s procedural obligation to ensure an effective investigation into the alleged ethnic hatred.
However, no thorough examination of any possible racial motives had been undertaken. On the contrary, the investigation had ignored any possibility that the crimes may have been motivated by ethnic hatred. There was nothing to suggest that the investigators who had questioned military personnel and village residents had asked them about any possible racist background to the incident (compare Makhashevy v. Russia and Antayev and Others, and contrast with R.R. and R.D. v. Slovakia). As a result, the motive of hatred had not been included in the legal classification of the crimes. When several applicants had challenged in court that failure to include the motive of hatred, their complaints had been dismissed in a summary fashion.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been: a failure of the State to comply with their obligations under Article 38; a violation of Article 2 in respect of several applicants’ enforced disappearance, and lack of an effective investigation into the disappearance or death of Mr. Magomazov; no violation of Article 2 on account of Mr. Magomazov’s death or the alleged failure of the State to safeguard his life; a violation of Article 3 on account of the ill-treatment of a number of the applicants, on account of the lack of an effective investigation into their ill-treatment, and on account of the mental suffering of several applicants caused by the disappearance of their relatives; a violation of Article 13, in conjunction with Article 3, on account of the lack of an effective domestic remedy concerning the mental suffering caused to the applicants by their relatives’ disappearance; a violation of Article 8 on account of unlawful searches conducted; no violation of Article 1 of Protocol No. 1 under its substantive or procedural limbs on account of incidents of arson and related investigation; no violation of Article 14, in conjunction with Article 2 or Article 1 of Protocol No. 1.
Article 41: Sums ranging between EUR 26,000 and EUR 60,000 to each of the relevant applicants in respect of non-pecuniary damage; claims in respect of pecuniary damage dismissed.
