Update on Decisions of the European Court of Human Rights Affecting Criminal Law / Criminal Procedure
| Author | Saima Akhtar,Richard Lang,Marwa Qari |
| Published date | 01 June 2011 |
| DOI | 10.1177/203228441100200209 |
| Date | 01 June 2011 |
| Subject Matter | Update |
230 Intersentia
UPDATE
UPDATE ON DECISIONS OF THE EUROPEAN
COURT OF HUMAN RIGHTS AFFECTING
CRIMINAL LAW/CRIMINAL PROCEDURE
R L, M Q and S A*
For ease of reading, cert ain cases h ave been omitted f rom this sum mary. ey are c ases
solely concerning t he length of proceedings, cases s olely concerni ng the presence of a
militar y judge on the bench, cases solely concerning the censorship of letter s, and other
‘repetitive’ or ‘recurrent ’ cases which disclose no new poi nt of law.
Tumayeva and Others v. Russia
Taymuskhanovy v. Russia
Date of judgment: 16 December 2010
Applicants are eight Russian nationals who live in v illages of the Chechen Republic.
ey are close relatives of Shamkhan Tumayev (born in 1982) and of Ruslan
Taymuskhanov (born in 1981). Shamkhan Tumayev was abducted from his home in the
early hours of 19 September 2004 by a group of 15–20 armed men in camouage
uniforms. According to one of the applicants, she heard a shot red and the noise of
vehicles leaving. Ruslan Taymuskhanov was abducted by Russian speaking serv icemen
at a military checkpoint when he, his mother and a police ocer were driving home on
the morning of 30 December 2002. e men’s hands were tied behind their backs and all
three of them were put into a minivan and driven o. Subsequently, Ms Taymuskhanova,
Ruslan’s mother was pushed out of t he van. Shamkhan Tumayev and Ruslan
Taymuskhanov have not been seen since. eir fami lies complained to the aut horities.
Investigations were lau nched but subsequently suspended and reopened several times,
and they are sti ll pending because the perpet rators have not been identied.
e European Cou rt of Human Rights was satised that the applicants’ accounts
of the abductions of t heir relatives were coherent and convi ncing. e Cour t found
that the fact that a large group of armed men in un iform had been able to move freely
late at n ight th rough check points a nd arrest ed Sham khan Tumayev in a manner
similar to that of State a gents strongly supported t he applicants’ allegation that they
* Richard Lang BA(Hons), LL .M, Ph.D i s a Senior Lecturer at the Sc hool of Law, e University of
Bedfordshire , and is Of Counsel t o Kemmler Rapp Böh lke & Crosby, Brusse ls. Marw a Qari and
Saima Ak htar are both LL .B candidates at the Unive rsity of Bedfordshire .
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 2, 2011 231
Update on Decisions of t he European Court of Hu man Rights Aec ting
Crimina l Law/Criminal Proce dure
were State servicemen. In the case of Rusl in Taymuskhanovy, the applica nts’
hypothesis t hat the people responsible for the abduction were State agents was
conrmed in particula r by the Government’s acknowledgement that a special milita ry
operation h ad been carried out in t he area in question on 30 December 2002. e
Court stated that in t he context of the conict in t he Chechen Republic and the
unacknowledged detention of the applicants’ relati ves, it c an be established that
Shamkha n Tumayev and Ruslin Taymuskha novy had to be presumed dead following
their abduct ion by the Russian servicemen. e Cou rt came to t hese conclusions by
drawing i nferences from the Government’s unw illingness to d isclose the entire
investigation les or to provide another plausible ex planation for the events in
question. Violation of Article 2 in respect of Shamkhan Tumayev and Ruslin
Taymuskhanovy. Further v iolation of Article 2 on account of the failure of the
authorities to carr y out an eective investigation into their disappe arance.
e Court also found that the applicants in Tumayev’s case and Taymuskhanovy’s
mother had suered and continued to suer distress and angu ish as a result of the
disappearance of their relatives a nd their inability to nd out what had happened to
them. e manner in which their complaints h ad been dealt w ith by the aut horities
had to be considered to constitute i nhuman treatment, i n violation of Ar ticle 3. e
Court held that Shamkhan Tumayev and Ruslan Taymusk hanov had been held in
unacknowledged detention without any of the sa feguards contained in Article 5,
which c onstituted a particularly grave violation of the right to liberty and securit y
enshrined in that article. Fina lly, the Cour t found a violation of Article 13 because the
crimina l investigations into the disappeara nces of both young men had been ineective
and the eectiveness of any other remedy that might have existed had consequently
been undermined.
Ichin and Others v Uk raine
Date of judgment: 21 December 2010
Applicants are four Ukranian national s, two mothers and thei r sons, who were born
in 1990 and 1991. On 31 December 2003, t he boys stole some food and kitchen
appliances from a school canteen. On 5 January 2004, they were quest ioned by the
police a nd confessed to the t he, and they also returned some of the stolen goods.
Aer two days, criminal proceedings into the the were opened against unknown
perpetrators. e boys were detai ned in a juvenile holding facility as they were
considered capable of committing social ly dangerous acts, evading the investi gation
and interfering w ith the course of justice. ey rema ined in detention for 30 days. In
March 2004, their mothers complai ned to the courts and t he prosecution service
about their sons’ degrad ing treatment in the juvenile holding facility. e court replied
that t hey lacked t he power to open criminal proceedings a gainst that facility’s sta
and the prosecutor did not see any grounds for a criminal investigation. Subsequently,
the cri minal proceedings against the two boys were termi nated on 26 April 2004 as
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