Постановление Европейского суда по правам человека от 08.04.2010 «Дело Мудаевы (Mudayevy) против России» [англ.]

ies' submissions

119. The Government asserted that no evidence had been obtained by the investigators to confirm that Aslan and Mokhmad Mudayev had been deprived of their liberty. The brothers had been brought to the Nadterechniy district department of the FSB for questioning and had been released shortly afterwards. The applicants' relatives were not listed among the persons kept in detention centres and none of the local law-enforcement agencies had information about their detention.
120. The applicants reiterated the complaint.

B. The Court's assessment

1. Admissibility

121. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits

122. The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see {Cicek} v. Turkey, No. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).
123. The Court has found that Aslan and Mokhmad Mudayev were apprehended by State servicemen on 29 January 2003 and have not been seen since. Their detention was not acknowledged, was not logged in any custody records and there exists no official trace of their subsequent whereabouts or fate (see paragraph 90 above). In accordance with the Court's practice, this fact in itself must be considered a most serious failing, since it enables 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. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).
124. The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants' complaints that their relatives had been detained and taken away in life-threatening circumstances. However, the Court's findings above in relation to Article 2 and, in particular, the conduct of the investigation leave no doubt that the authorities failed to take prompt and effective measures to safeguard them against the risk of disappearance.
125. In view of the foregoing, the Court finds that Aslan and Mokhmad Mudayev were held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. Alleged violation of Article 18 in conjunction
with Article 5 § 1 (c) of the Convention

126. The applicants further alleged that the detention of their relatives was carried out for a purpose other than those envisaged by Article 5 § 1 (c), contrary to Article 18 of the Convention. Article 18 reads:
"The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."
127. As for the alleged violation of Article 18 in conjunction with Article 5 of the Convention, the Court reiterates that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other A

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