Постановление Европейского суда по правам человека от 29.10.2009 «Дело Вахаева и другие (Vakhayeva and others) против России» [англ.]

2 November 1993 No. 1815 on Measures for the Prevention of Vagrancy and Mendicancy.
172. In view of the Government's reference to Kazbek Vakhayev's detention within the legal framework relating to the prevention of vagrancy, the Court will first proceed to examine whether his detention in the relevant period can be considered to fall within the scope of Article 5 § 1 (e).
173. In the first place, the Court harbours doubts as to whether the Decree in question could in principle constitute a legal basis for Kazbek Vakhayev's detention, since it does not provide grounds for detention, but establishes time-limits for placement in rehabilitation institutions.
174. Secondly, given that it is not disputed by the parties that Kazbek Vakhayev was apprehended at his home, the Court finds it difficult to accept that the Decree could have been applicable in the present circumstances, and that the detention could therefore have fallen within the scope of Article 5 § 1 (e), since it is far from clear how a person can be arrested for vagrancy at his own home.
175. Finally, even assuming that the Decree could have been applied in the present case and constituted a legal basis for Kazbek Vakhayev's detention, the Government have failed to submit to the Court a prosecutor's order for his detention which, according to section 3 of the Decree, was a prerequisite for placement in a rehabilitation centre. Thus, Kazbek Vakhayev's detention from 1 to 11 August 2000 was not in conformity with either the domestic law or with Article 5 § 1 (e) of the Convention (Bitiyeva and X v. Russia, Nos. 57953/00 and 37392/03, § 115, 21 June 2007).
176. As regards the subsequent period, although the Government alleged that Kazbek Vakhayev was released on 11 August 2000, they provided no proof to this effect, such as extracts from the detention facility register. Moreover, the Government's submissions are not consistent with the interim findings of the domestic investigation, according to which he had been released on 14 August 2000. However, no proof of his release on that date has been provided to the Court either, having regard to which the Court has already found in paragraph 135 above that Kazbek Vakhayev remained in continued detention under State control from 1 August 2000 onwards.
177. Therefore, Kazbek Vakhayev's ensuing detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. 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).
178. 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 family member 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 him against the risk of disappearance.
179. Consequently, the Court finds that from 1 August 2000 Kazbek Vakhayev was held in arbitrary detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshri



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