ITEMID: 001-58195
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF TINNELLY & SONS LTD AND OTHERS AND McELDUFF AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Not necessary to examine Art. 8;Not necessary to examine Art. 13+8;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;John Freeland
TEXT: 9. Tinnelly & Sons Ltd (hereinafter “Tinnelly”), the first applicant, is a contracting firm based in Northern Ireland with experience in the demolition and dismantling of industrial plants as well as asbestos stripping. Mr Patrick Tinnelly, the second applicant, is the firm’s managing director and his brother, Mr Gerard Tinnelly, the third applicant, is its company secretary. The second and third applicants are Catholics.
10. Mr Kevin McElduff, Mr Michael McElduff, Mr Paddy McElduff and Mr Barry McElduff, the remaining applicants (hereinafter “the McElduffs”), are all self-employed joiners based in Northern Ireland. They are all Catholics.
11. The applications lodged with the Commission stem from a similar factual background and administrative practice and raise the same issues under the Convention. The facts pertaining to the complaint lodged by Tinnelly are set out in section 1; the facts pertaining to the McElduffs’ complaints are set out in section 2.
12. Sometime in 1984 Northern Ireland Electricity Services (hereinafter “NIE”) considered inviting tenders for the demolition of the Ballylumford “A” Power Station and the purchase of the resulting scrap. The Tinnelly firm expressed interest in working on the contract and following contacts with NIE submitted a tender on 28 March 1985. Tinnelly, which was on a NIE list of approved contractors, submitted the lowest tender. Having regard to their competitive bid as well as to the firm’s track record in demolition work an executive committee of NIE, meeting on 2 May 1985, recommended that the firm’s bid be accepted. It would appear that NIE officials were satisfied both with the financial backing which Tinnelly had secured as a condition of being awarded the contract and its capacity to undertake and complete the work. Having regard to the frequency of its contacts with NIE around this time, Tinnelly proceeded on the understanding that it had been awarded the contract.
13. However, on 26 June 1985 a revised recommendation was drawn up recommending that the contract be given to another firm which had submitted the second lowest offer in response to the invitation to tender, namely the Glasgow-based firm of McWilliam Demolition Ltd (hereinafter “McWilliam”). The contract was subsequently awarded to McWilliam with a starting date of 5 August 1985. Tinnelly received a letter on 28 June 1985 confirming that it had not been awarded the contract. The firm was not informed of the reasons for this decision.
14. Subsequently, on 21 August 1985, Tinnelly submitted a detailed quotation to McWilliam for the removal of asbestos from the Ballylumford site. McWilliam contacted the firm with a view to discussing the terms of a subcontract. A meeting was arranged at Tinnelly’s Newry office for 29 August 1985. However, the firm was informed on the day of the planned meeting that McWilliam had decided to cancel it. Tinnelly learnt subsequently from the managing director of McWilliam that Tinnelly’s employees were not considered acceptable by NIE on security grounds and for that reason the subcontract was withheld from it. In its particulars of complaint submitted to the Fair Employment Agency (see paragraph 15 below), Tinnelly maintained that, according to McWilliam, Tinnelly had been the favourites to obtain the Ballylumford contract but were not awarded it since the trade unions at Ballylumford would not allow employees of Tinnelly access to the site and “there was no way they were going to have IRA sympathisers working with them”.
15. Tinnelly considered that it had been refused the contracts with NIE and McWilliam because of the perceived religious beliefs and/or political opinions of its management and workforce and for that reason had been the victim of unlawful discrimination. It relied on the information gleaned from McWilliam (see paragraph 14 above). Tinnelly lodged complaints on 24 July and 2 September 1985 with the Fair Employment Agency for Northern Ireland (“the FEA”), the statutory body charged under the Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”), with the duty to promote equality of opportunity in the province and to eliminate religious and political discrimination in the employment sector and related areas (see paragraphs 41–43 below). Since 1989 the FEA has been known as the Fair Employment Commission (see paragraph 43 below).
16. The FEA served particulars of the allegations of unlawful discrimination on NIE on 13 September 1985. NIE replied on 24 September stating that the contract at Ballylumford had been awarded to McWilliam on account of that company’s proven experience in the safe dismantling of power stations and of handling asbestos and for that same reason NIE did not want the asbestos-stripping part of the contract sub-contracted to another firm. NIE’s letter also referred to Tinnelly’s failure to take steps to execute the guarantee submitted at the time of tendering for the Ballylumford contract, which explained the frequent contacts between the two sides at the material time (see paragraph 12 above).
17. The FEA, acting under the powers given to it under section 23 of the 1976 Act (see paragraphs 42 and 43 below), agreed to investigate Tinnelly’s complaint that there were suspicions that NIE’s decision had been brought about by sectarian pressure exerted by the trade unions at Ballylumford. NIE took the view that the FEA had no jurisdiction to investigate the complaint on the ground that the protection afforded by section 23 did not extend to corporate bodies such as Tinnelly. NIE sought an order of prohibition to prevent the FEA from investigating the complaint as well as a declaration that no valid complaint had been made and that the FEA had no jurisdiction to investigate it. This argument was dismissed by Mr Justice Nicholson in the High Court of Justice of Northern Ireland on 9 September 1987. NIE did not appeal against that decision and the FEA proceeded with the investigation.
18. On 20 October 1987 a senior official of NIE made a formal request to the Secretary of State for Northern Ireland via a civil servant in the Department of Economic Development (hereinafter “the DOD”) for the issue of a certificate under section 42 of the 1976 Act to the effect that the decision not to grant Tinnelly the contract in question was “an act done for the purpose of safeguarding national security or of protecting public safety or public order” (see paragraph 45 below). The Secretary of State issued the certificate on 28 October 1987. By virtue of section 42(2) of the 1976 Act, the certificate was conclusive evidence that the act was done for the stated purpose (see paragraph 45 below).
19. The FEA commenced judicial review proceedings in the High Court of Justice of Northern Ireland before Mr Justice Nicholson seeking an order of certiorari to quash the Secretary of State’s decision to issue the section 42 certificate and a declaration that that decision was null and void. Lawyers for the FEA contended that the certificate was procured and issued in bad faith, was irrational, unfair and unreasonable and made for an improper collateral purpose, namely to prevent the FEA from investigating a complaint of unlawful discrimination. NIE was made a notice party to the proceedings.
20. In the course of the judicial review proceedings, the FEA sought an order for discovery of a number of documents in the possession, custody or power of the Secretary of State. Mr Justice Nicholson made the order on 10 May 1988 and the Secretary of State complied by producing a list of documents. However, some documents were sealed or covered up on the ground that their production, except as sealed or covered up, would be injurious to the public interest. These documents were covered by a public-interest immunity certificate issued by the Secretary of State on 13 September 1988. He stated in that certificate, inter alia:
“6. To enable me to be satisfied that ... genuine reasons did exist in [signing the section 42 certificate], I considered it necessary for me to know the information upon which NIE claimed to have acted. I also considered that I should independently obtain information to enable me to confirm, so far as possible, that national security and/or public order was, in fact, endangered in that case.
7. NIE is responsible for the provision ... of an uninterrupted supply of electricity in Northern Ireland. To fulfil this responsibility it must have available to it all relevant information which may reduce or avoid the risk of disruption to the supply ... for any unlawful reason including acts of terrorism, and in case of the [relevant] contract, I believe that it did obtain such information. The disclosure of certain information which was obtained by NIE would reveal to those who are engaged in unlawful activities including acts of terrorism, the nature of that information, the extent of the information known about them and possibly the source from which it originated. This could endanger life and would make it more difficult to obtain such information in the future ... [D]isclosure of the process by which this information is obtained could impair the effectiveness of that process.
8. I am of the view that if the independent information which I obtained in the present case were to be disclosed it could enable terrorist organisations to know the nature and extent of the information known about them and would aid them in their unlawful acts...
9. I have read ten documents which are produced to me. Each of the said documents contains in part information of the kind described in paragraph 7 or paragraph 8... I am of the opinion that for the safeguarding of national security and the protection of public safety and public order, it would be contrary to the public interest that any of the said documents should be disclosed in these proceedings except as sealed and covered up to prevent disclosure of the aforesaid information.”
21. The FEA did not dispute the Secretary of State’s objection to the production of these documents on public interest grounds.
22. On 8 December 1988, the FEA – again in the context of the challenge to the section 42 certificate – applied for an order for discovery of documents by NIE, a notice party to the judicial review proceedings (see paragraph 19 above). An order to produce a list of documents was made on 9 December 1988. Those documents were disclosed by NIE with the exception of nineteen documents relating to the decision not to award the contract to Tinnelly. NIE objected to the production of the latter documents on the ground that it would be injurious to the public interest.
23. The FEA challenged this objection and on 13 December 1988 the Secretary of State issued a further public-interest immunity certificate. It repeated the substance of paragraph 7 of the earlier certificate of 13 September 1988 (see paragraph 20 above) and continued:
“5. I have read what I am informed are copies of seventeen documents held by NIE... These documents reveal the methods used by NIE to gain information which is required to protect the electricity system, the sources of the information and the information obtained.
6. I have also read what I am informed are copies of a memorandum dated 7 September 1987 ... minutes of a [meeting] dated 26 April 1985 and a letter of 8 September 1987...
7. For the reasons I have given in the foregoing paragraphs, I am of the opinion that for the safeguarding of national security, the protection of public safety and public order, none of the documents referred to in paragraph 5 or their contents should be admitted in evidence in these proceedings because they fall within the class of communication which I have described and because of the information they contain. I am also of the opinion that for these reasons the document referred to in paragraph 6 should not be admitted in evidence except as sealed and covered up.”
24. On 16 March 1989 Mr Justice Nicholson considered an interlocutory application by the FEA challenging the Secretary of State’s public-interest immunity certificate of 13 December 1988. He prefaced his judgment with comments to the effect that, because he had seen certain documents which had not been seen by all sides, he was of the opinion that it might be better if a different judge determined the substantive judicial review application.
25. Mr Justice Nicholson noted that the documents already disclosed to the court indicating the grounds on which NIE based their decision not to award the Ballylumford contract to the Tinnelly firm gave rise to a prima facie case of bad faith on the part of NIE and the advisers to the Secretary of State. Mr Justice Nicholson expressed the provisional view that the original reasons put forward by NIE for the refusal of the contract did not refer to security grounds, and the same reasons were repeated for a considerable time (see paragraph 16 above). He noted that there were inconsistencies in the alleged ground for refusing the contract: at one point the firm had been described as having experience of handling asbestos and having carried out subcontract demolition work on power stations, and later (after security information had been received) as having “no experience” in demolishing power stations. He recalled that Tinnelly had alleged that McWilliam, the successful tenderer, had said that the applicants were the favourites to obtain the contract but were not given it “as the unions at Ballylumford would not allow it” and that the unions had said that “there was no way they were going to have IRA sympathisers working with them”.
26. As to the documents whose discovery was sought, Mr Justice Nicholson stated:
“If this Court is of the opinion that a document was not disclosed because it bore on national security and could not be edited so as to eliminate the national security element I would not go on to balance the interests of national security against the interests of justice since this balance is for the Government to exercise…
If the Court is of the opinion that a document has no ‘national security’ implications, but has other ‘public interest’ implications and is very likely to assist and give substantial support to the Agency on the issues involved in this case, it will go on to consider the other ‘public interest’ objections to production and will go on to balance the competing interests of protection of the public interest in public safety or public order on the one hand and of the public interest in the administration of justice on the other hand – namely, that it is and is seen to be fair and open that a party is not deprived of documents which are likely or very likely to assist or substantially support his case…”
He continued:
“I reject any contention that a High Court Judge in Northern Ireland is incompetent to decide whether a document might involve national security or whether a class of documents might involve national security. I do accept, however, that if disclosure of a document might imperil national security, it is not for the Court to balance national security against other considerations of public interest, but that it is for the relevant Minister of the Crown to do so…”
27. Mr Justice Nicholson ordered that the seventeen documents for which a “class claim” had been made should be produced for inspection by the court, and that the two documents which had been partly sealed or covered up should also be produced for inspection.
28. On 19 April 1989, having read the documents covered by the certificate of 13 December 1988 (which were not disclosed to the FEA or the applicants), Mr Justice Nicholson held that none of the withheld documents assisted the application for judicial review. He accepted the claim for public interest immunity in respect of documents 1 to 14, which related to confidential record checks carried out by the Royal Ulster Constabulary (“the RUC”) on Tinnelly and on persons employed by it. He considered that documents 15 to 18, internal NIE documents, could be partly disclosed and that document 19 could be disclosed as a whole. He concluded:
“I am satisfied that the claim for immunity from production for all these documents was made in good faith. But in my opinion no person could reasonably say that for the safeguarding of national security or for the protection of public safety or public order documents 15 to 19 should not be produced or, if admissible, should not be admissible in evidence – so long as my directions are carried out about covering over portions of some of them.”
29. Mr Justice Nicholson granted the Secretary of State leave to appeal on 24 April 1989. In so doing, he held:
“It is implicit in my ruling that I have rejected the ‘class’ claim set out in the certificate of the Secretary of State, as I take the view that it is too wide and too vague. It could involve, for example, protection of documents internal to NIE which emanated from a private detective agency or organisation within NIE acting as a private police force, independently of and outside the control of the RUC. A court might hold that no reasonable person could claim that national security was endangered by the production of documents emanating from such an agency or organisation. Such an agency or organisation might be a positive danger to national security. Such a ‘class’ claim could involve, for example, protection of documents emanating from employees of NIE about contractors and their employees based on gossip or hearsay or malice or sectarianism. Such documents might have existed in the present case, if the affidavit of McWilliam is true.
The five documents of which I have ordered production could have been caught by this wide and vague formula...”
30. At the substantive hearing on 3 December 1991, the judicial review application was dismissed. Mr Justice McCollum found, inter alia, as follows:
“The issue of course before me is not whether the Secretary of State was right or wrong in signing the certificate, but whether he had jurisdiction to do so, which is basically accepted by the parties, and whether the events leading up to his decision are such that his decision to certify can or cannot stand.
I must also remember that the process of judicial review is ill-suited to the resolution of disputed issues of fact, and particularly so when the primary issue is not the determination of what occurred, but the motives of those engaged in the relevant acts...
Even taking NIE’s case at its highest, [one particular letter] was misleading because it made no mention of the true reason, according to them, i.e. the withdrawal of the contract from Tinnelly on security considerations...
It is a sad fact of life that in spite of the patient endeavours of the Agency there still remain those in Northern Ireland who hold deep hostility to the objectives and activities of the Agency.
I have no doubt whatever that such attitudes existed within NIE in 1985, and possibly still do, and I am afraid that the assurances by [NIE officials] did nothing to persuade me to the contrary, when viewed against their overt activities in this case.
Paradoxically this view gives credence to part of the evidence of [the NIE official] on the important issue of the true reason for the withdrawal of the contract from Tinnelly.
It is virtually inconceivable that a man who had risen to the eminence of Chairman of an important public body like NIE would conceal under a veil of untruths the making of what he saw as a perfectly justified and reasonable decision based on his concern for the safety and continued operation of a vital public utility, and in effect to lay a false trail to mislead those investigating the matter.
Two factors persuade me that it is a possibility that he might act thus:
(1) The attitude of quite unjustified mistrust and hostility towards the Agency which I have referred to, and which might greatly exaggerate his fears of an investigation; and
(2) The problems arising from pursuing the uncharted course of obtaining a section 42 certificate...
Therefore while NIE for two years failed to acknowledge the true reason for its decision, according to it, and gave untrue reasons which would in normal circumstances lead to the inevitable conclusion that the true reason was illegal or so shameful as to merit concealment, the factors I have referred to leave me in a state of mind where I can accept the proposition that the security factor may have been the factor uppermost in [the NIE official’s] mind when he made his decision.
It must also be said that information did come to NIE from the Royal Ulster Constabulary at the end of May and the early June of 1985. I do not know its exact nature, and of the apparently twenty-nine applications for clearance, I have only seen twelve replies, of which a number (I think seven) appear not to give security clearance. And exactly when they arrived is difficult to say, but I think they may well have arrived in early June which was around the time of the apparent change of heart.
I do not know the exact nature of that security information, although I have a general picture, but I do know enough about it to realise that it may have been significant...
... It is impossible not to harbour suspicions since many of the actions taken by NIE give rise to suspicions and will do so in the mind of any reasonable person. Among other suspicious factors is indeed the fact that Nicholson J. was assured that Tinnelly was still an acceptable contractor during the course of the hearing before him of the privilege claim. That was even more particularly so when coupled with the removal, after his judgment, of their names as prospective tenderers. Moreover, the second application for authorisation to [recommend] McW. on the basis of superior experience appears to have been an undoubted attempt to lay a false trail among the documents and records of NIE.
In spite however of all those matters I have referred to, I am nonetheless not satisfied that the application for the section 42 certificate by NIE was an abuse of the process as it is understood by the parties, nor that it was an act of fraud in the legal sense on the part of NIE.
I am not satisfied that the security information received by [the NIE official] was not the deciding factor in the decision to withdraw the contract from Tinnelly. While NIE’s actions and attitudes can be roundly criticised ..., and are such that they leave considerable doubt in the matter, nevertheless they of themselves do not vitiate the making of the section 42 certificate and do not in the event satisfy me that the application was in legal terms a fraudulent one.
I believe that it is possible that [the NIE official] was unsure of his position when he received the RUC’s response to the application for routine clearance of Tinnelly’s workers, and that rather than face up to the possible problems arising from a withdrawal of the contract on security grounds he decided to follow the course he did, i.e. to choose McW. on the spurious grounds of their greater experience in the demolition of power stations.
He no doubt expected that Tinnelly would never discover that they were the lowest tenderers and when they did so and involved the Agency, it would seem that a decision was made to continue and elaborate upon the original false premise for choosing McW.
One of the great problems which is quite beyond my power to resolve is that Tinnelly insists that it previously had always received security clearance for workers in highly sensitive installations...
I have not been permitted to inspect the RUC response to the individual requests for clearance. I do not understand why persons who may have got clearance earlier, may have been refused in this case... However, having regard to the evidence given and to the unchallenged affidavit of the Secretary of State about the effect of the RUC response, and indeed to those parts of the documents which I have been permitted to see, I must accept that, in response to some individuals at least, the response was unfavourable, and this may have been to such a degree as to justify the view that a serious security risk was involved if the contract was granted to Tinnelly...
... [The] heart of the matter was whether security information had in fact become available to NIE at the relevant time which would have justified its decision to withdraw the contract.... Had it transpired that no such information existed, then the application for the section 42 certificate would have been exposed as bogus...
As I have already indicated, I have not seen that information in detail, but I am bound to accept the judgment of the Secretary of State that the information was such as to justify the decision. And I may add that those parts of the documents that I have seen confirm that view. When it was confirmed that such security information was made available, it was in my view reasonable for the Department to accept that the NIE application was made in good faith...
[The civil servant in the Department of Economic Development (see paragraph 18 above)] ... could not have been expected to undertake an investigation similar to that which the Agency might have undertaken... There was no machinery by which he could bring in other parties. There was no machinery by which he could interrogate NIE, or compel it to produce documents to him, except by the use of what one might describe as moral persuasion. Once he accepted that the application was made in good faith for genuine reasons, then he was bound to support it whatever view he might have taken of the follies and inconsistencies which were apparent.
It is clear from this hearing that he was not going to get any acknowledgement from NIE or any of its officials that anything untoward had occurred, and he had no remit, as I indicated, to consult with any other person who might have alleged to the contrary, and if he had, he had no machinery of procedures to resolve the consequent dispute.
I find it difficult to imagine how he could have adopted an inquisitorial role and cross-examined [an NIE official] about the contradictions and inconsistencies in NIE’s case. All that he could do was to record what seemed to him to be relevant and to try to gather the facts by interview with [the NIE official]...
It seemed to me that the Department acted with the utmost propriety in pursuing its own investigations into the central issue of security, and that the application to the Secretary of State was only processed further when the Department were satisfied that there was a genuine security consideration involved in the case...
The Secretary of State [in his affidavit to the court] goes on to say `having seen [the RUC report on which [the civil servant’s] submission had been based] I was quite satisfied that there would have been a genuine risk to national security, public safety or public order, if the contract had been awarded to Tinnelly and that notwithstanding that a different reason had been given by NIE for not awarding the contract to the Tinnellys, he felt satisfied that he could accept the assurance by NIE that the security issue had been the fundamental one from the outset...
It would be impossible for any court to hold that this was not a tenable view reached after due consideration of the submissions presented to him, and having regard to the fact that the consideration of what constitutes a risk to national security, public safety or public order, are matters very much within the exclusive competence of the Secretary of State to determine...
Much of the criticism of the [Department] arose from the fact that it did not appear to act in the role of court or tribunal, and to sift the evidence and follow up inconsistencies. As I have indicated, the procedure used was necessarily quite unsuitable for determining the real motives which lay behind the decision taken.
However, once it is accepted that it was appropriate for NIE to seek a section 42 certificate to justify its withdrawal of the contract from Tinnelly, and that the procedures followed were lawful, and did not fall short of any legal requirement, and add to that the finding that the procedures were followed in good faith and with proper attention and consideration, then clearly it is not open to the court to interfere by way of judicial review.
It is not the function of judicial review to re-try issues.”
31. The judge expressed sympathy for the position of the FEA and the civil servants at the DOD, and again criticised the NIE for misleading the other parties to the dispute over a period of years. He concluded:
“However, I am satisfied that there was sufficient evidence, honestly and competently presented to the Secretary of State in accordance with reasonable procedures, and carefully considered by the Secretary of State to justify the decision taken by him, which decision is therefore unimpeachable in this court.”
32. Senior Counsel advised the FEA that an appeal against the decision of 3 December 1991 would not succeed. The section 42(2) certificate being valid, the applicant’s complaint to the FEA did not receive further investigation and hence no settlement attempts were effected or county court proceedings taken under the Fair Employment (Northern Ireland) Act 1976.
33. In or about May 1990 the applicants were informed by a building contractor that he had obtained a contract with the Department of the Environment for Northern Ireland (hereinafter “the DOE”) to build premises at the site of the Northern Ireland Area Architect’s Office in Omagh, Co. Tyrone. The contractor invited the applicants to tender for the joinery subcontract. Their tender was accepted and they were advised by the contractor that they could start the work, subject to security clearance from the DOE.
34. The applicants supplied their names, addresses and dates of birth to the contractor, who forwarded them to the Contracts Branch of the DOE. Approximately six weeks later they were informed that they had not been granted security clearance and that they could not therefore be awarded the subcontract. The recommendation that security clearance be refused emanated from the Security Branch of the Department of Finance and Personnel (“the DFP”), a government department in Northern Ireland, which based its recommendation on information supplied by the RUC (including officers of its Special Branch).
35. The applicants have no criminal convictions of any kind, except for minor motoring offences. They state that they are not and never have been involved in any criminal or terrorist activity and know of no good reason why they should have been refused security clearance. They believe that they were discriminated against by the DOE on the grounds of religious belief or political opinion. In broad terms they would be perceived as having nationalist views, although they are not members of any political party and are not engaged in any form of political activity. They wrote to the DOE through their solicitors requesting an explanation as to why they had been refused clearance to be employed on this contract, but the DOE, following re-examination by the DFP Security Branch of the information originally supplied by the police, refused to provide an explanation.
36. The applicants sought the assistance of the Fair Employment Commission for Northern Ireland and in August 1990 they made a complaint to the Fair Employment Tribunal (“the Tribunal”) alleging that the contractor and the DOE had discriminated against them contrary to the 1976 Act. The applicants had in the past been stopped and mistaken by members of the security forces for different persons of the same name, and they suspected that this was a case of mistaken identity.
37. The contractor resisted the complaint on the grounds that he had been willing to offer employment to the applicants but that the DOE had not been prepared to give them security clearance. By notice of appearance of 3 December 1990, the DOE resisted the complaint on the grounds that it had not done anything which would constitute an act of unlawful discrimination under the Act and, in the alternative, that “any act of the respondent in relation to the applicant was an act done for the purpose of safeguarding national security, and thus any such act is not an act to which the [1976 Act] or the Fair Employment (Northern Ireland) Act 1989 apply”.
38. In relation to the first ground relied upon by the DOE, the DOE applied for an interlocutory hearing on the questions whether it should be dismissed from the proceedings, whether the applicants sought employment from it within the meaning of the Act and whether in the circumstances it could have discriminated against the applicants contrary to section 23 of the Act (see paragraph 42 below). On the morning of the interlocutory hearing, 26 September 1991, the DOE withdrew its application. On 22 October 1991 the Tribunal ordered the DOE to provide discovery of all relevant documents relating to the matter. It also ordered the DOE to provide further particulars of its case, inter alia, requiring the DOE to specify the national security grounds relied upon in relation to the applicants.
39. On 6 February 1992, the Secretary of State for Northern Ireland issued a certificate pursuant to section 42(2) of the 1976 Act to the effect that the decision to refuse the applicants’ admission to the site of the contract was done for the purpose of safeguarding national security. Counsel advised the applicants that the effect of issuing the certificate was to bar the Tribunal from determining the complaint in the applicants’ favour. In view of the fact that an award of costs could have been made against the applicants if they had unreasonably proceeded to a hearing in the face of the certificate, they withdrew their application, which was accordingly dismissed by the Tribunal on 27 March 1992.
40. The European Court of Human Rights has referred to the difficulties experienced by the Catholic community in Northern Ireland since the partition of the island of Ireland in its Ireland v. the United Kingdom judgment of 18 January 1978 (Series A no. 25) and in particular at page 12, § 19, with further reference to the Cameron Commission.
41. The Fair Employment (Northern Ireland) Act 1976 (“the 1976 Act”) is, according to its preamble, “An Act to establish an agency with the duties of promoting equality of opportunity in employments and occupations in Northern Ireland between people of different religious beliefs and of working for the elimination of discrimination which is unlawful by virtue of the Act...”.
42. The Act applies only to the employment field and related areas. Section 17(1) of the 1976 Act makes it unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, where that person is seeking employment, inter alia, by refusing or deliberately omitting to offer that person the employment for which he applies. Under section 23 of the 1976 Act, it is unlawful for a person who has power to confer on another a qualification, which is needed for his engagement in employment or occupation, to discriminate against him by refusing or deliberately omitting to confer that qualification. The agency referred to in the preamble to the 1976 Act was the Fair Employment Agency (“the FEA”).
43. The FEA, known since 1989 as the Fair Employment Commission, is a statutory body established under the 1976 Act. It has the duty to promote equality of opportunity in Northern Ireland and the elimination of religious and political discrimination. Until 1989, if the FEA, following an investigation, reached the conclusion that there had been unlawful discrimination, it had power to attempt a settlement of the matters in dispute or if necessary to commence proceedings in the County Court against the relevant party in order to recover damages or secure injunctive relief on behalf of the victim.
44. Following amendments made by the Fair Employment (Northern Ireland) Act 1989 (“the 1989 Act”), applicable to the complaints brought by the McElduffs (see paragraphs 35 and 36 above), the remedy available to a person who has been a victim of discrimination contrary to the 1976 Act is to make a complaint to the Fair Employment Tribunal, which is empowered to make various orders and recommendations, including an order for financial compensation “of any amount corresponding to any damages [which] could have been ordered ... if the complaint had been a claim in tort”, up to a maximum of 30,000 pounds sterling (GBP). The amended legislation enables an intending complainant to request a party who has allegedly discriminated to respond to a questionnaire on the reasons for that party’s conduct. The questionnaire and any reply are admissible in proceedings before the Tribunal, which may draw adverse inferences from a party’s failure to reply.
45. Section 42 of the 1976 Act provides as follows:
“(1) This Act shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or public order.
(2) A certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for a purpose mentioned in subsection (1) shall be conclusive evidence that it was done for that purpose.”
46. Discrimination on the grounds of sex is prohibited in Northern Ireland by the Sex Discrimination Act 1975, which contains provisions analogous to section 42 of the 1976 Act, supplemented by the Sex Discrimination (Northern Ireland) Order 1976, section 53(1).
47. In Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84 [1986] ECR 1663, a reference for a preliminary ruling by the Industrial Tribunal for Northern Ireland to the Court of Justice of the European Communities in a sex discrimination case, the Court of Justice had regard to Article 6 of the Convention and held the certification provisions to infringe Community law in so far as they permitted a certificate issued by the Secretary of State to be treated as conclusive evidence and hence prevent an industrial tribunal from considering the merits of the complainant’s case.
48. Domestic law was in consequence amended by the Sex Discrimination (Amendment) Order 1988 (SI 1988 no. 249) so as to disapply the certification provisions in relation to complaints of sex discrimination in employment-related matters. In the course of the
parliamentary debate which preceded enactment of the amending legislation, the Minister of State for Northern Ireland distinguished the factors considered relevant to the issue of section 42 certificates from those taken into account in the issue of similar certificates under sex discrimination legislation:
“[In sex discrimination cases] a person’s gender cannot be taken into account when a Minister certifies that something is necessary on the grounds of national security... However, ... it would not be appropriate or necessary to follow a similar approach in relation to religion and political opinion...
First, unlike gender, issues of religion and political opinion can have a particularly intimate bearing on matters of national security in Northern Ireland. Accordingly, there are issues that it might be appropriate and necessary to take into account when certain matters of national security arise. This is both unfortunate and regrettable, but it is the hard reality in Northern Ireland...
Secondly, [European Community law] does not cover the issues of religion and political opinion. The Government took steps to amend the sex discrimination legislation when it became clear that it was in conflict with our European obligations. There is no such conflict in the case of section 42, so it is a perfectly permissible and appropriate provision.”
49. Since the entry into force of the Sex Discrimination (Amendment) Order 1988, the Industrial Tribunal is now able to determine whether a particular act was taken on grounds of national security or not, subject to appropriate safeguards of the interests of national security, public safety and public order. Following the preliminary ruling of the Court of Justice of the European Communities in the above-mentioned Johnston case, the Industrial Tribunal hearing the plaintiff’s complaint took evidence from one witness in camera for reasons of national security.
50. Since 4 August 1997, racial discrimination has been made unlawful in Northern Ireland by virtue of the enactment of the Race Relations (Northern Ireland) Order 1997 (SI 1997 no. 869). The order mirrors broadly the race relations legislation which was adopted in 1976 for other parts of the United Kingdom. However section 66 of the order contains a certification provision equivalent to section 42 of the Fair Employment Act 1976. No such certification provision has been included in the Disability Discrimination Act 1995 although section 59(3) of that Act states that nothing in the Act makes unlawful any act done for the purpose of safeguarding national security.
51. The Standing Advisory Commission on Human Rights (“the SACHR”), an independent statutory body established by section 20 of the Northern Ireland Constitution Act 1973 to advise the Secretary of State for Northern Ireland on the adequacy and effectiveness of the law in preventing discrimination on the grounds of religious belief and political opinion in Northern Ireland, presented to Parliament on 27 June 1997 a wide-ranging review of fair employment and other social and economic policies relevant to employment equality in Northern Ireland.
ex parte hearing conducted by the president or vice-president of the Fair Employment Tribunal or another
chairman competent to hear fair employment cases. If it is at all possible, the person affected should be entitled to challenge the documentation and information relied on by the respondent authority.
52. The applicants drew attention in their memorial to the Special Immigration Appeals Commission Bill, which had recently been introduced by the Government in the wake of the Court’s Chahal v. the United Kingdom judgment of 15 November 1996 (Reports of Judgments and Decisions 1996-V, p. 1831). The Bill would set up a tribunal, the Special Immigration Appeals Commission, which, following the Canadian model, would adjudicate on appeals against decisions of the immigration authorities as to, inter alia, exclusion, removal or deportation of individuals from the United Kingdom for the public good and/or for national security, etc. This bill would extend to Northern Ireland and allow for a full appeal on the merits against a decision of the Secretary of State or an immigration
officer made on the grounds of, inter alia, national security. Provision was made for the appointment of a special advocate to assist the commission in any proceedings from which the appellant and his lawyer are excluded on national security grounds. According to the bill the Secretary of State would be required to provide the appellant with the schedule of any evidence which he wished to adduce in the appellant’s absence. The commission would be enabled to conduct proceedings in the absence of the appellant and his representative in order to ensure that information was not disclosed contrary to the public interest. A special advocate would be appointed to assist the commission in such proceedings. The commission would be required to give a summary of the evidence taken in the absence of the appellant to the extent that this would be possible without disclosing information contrary to the public interest.
The bill, as amended in the course of its passage through Parliament, has been subsequently enacted as the Special Immigration Appeals Act 1997.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88777
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ZULPA AKHMATOVA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants are:
(1) Mrs Zulpa Akhmatova (also spelled Akhmadova), born in 1939;
(2) Mr Abaz Debizov, born in 1932 (died in April 2004);
(3) Mrs Taus Serbiyeva, born in 1932;
(4) Mr Islam Serbiyev, born in 1964;
(5) Mrs Saret Yasadova, born in 1963;
(6) Mr Sharpudi Bargayev, born in 1956.
The applicants are Russian nationals and live in Chechnya, in the village of Novye Atagi, in the Shali District, except for the fourth applicant, who lives in Grozny.
7. The applicants submitted that between 14 and 16 January 2001 the federal troops had conducted a “sweeping” operation (“зачистка”) in the neighbouring villages of Novye Atagi and Starye Atagi. Early in the morning on 14 January 2001 the federal forces blocked the roads leading into Novye Atagi and stopped the traffic on the Grozny to Shatoy highway, which is the main road leading into and out of the village. They then disarmed and blocked the local police and cut off their communications. After that they proceeded to carry out house-to-house searches and identity checks.
8. The military operation was allegedly in response to the kidnapping on 9 January 2001 of a Médecins sans Frontières humanitarian worker, Mr Kenneth Gluck, which had occurred on the road outside Starye Atagi. The operation was well documented by human rights NGOs, such as Memorial and Human Rights Watch. The applicants submitted numerous affidavits about the events of 14 to 16 January 2001 produced by members of the families of the detained persons and by neighbours. They suggested that at least 21 men had been detained in Novye Atagi and Starye Atagi during that operation, including their relatives Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev.
9. The first and second applicants are the mother and father of Said-Magomed (also spelled Said-Magomet) Abazovich Debizov, born in 1967. Both applicants retired and lived at 40 Arsanova Street. The first applicant suffers from epilepsy and diabetes and the second applicant had advanced tuberculosis (he died in April 2004). Their son Said-Magomed Debizov was a cattle-breeder, and after finishing his army service in 1987 he lived in Kalmykia. He was married and had five minor children; his family resided in Kalmykia. He was also suffering from tuberculosis. In early January 2001 Said-Magomed Debizov came to his home village of Novye Atagi to visit the first and second applicants, whom he also supported financially. Immediately upon arrival he registered with the village administration. Said-Magomed Debizov was described by the head of the village administration as a good member of the community and part of a large and hard-working family, who had not taken part in unlawful activities.
10. The third and fourth applicants are the mother and brother of Iznovr Usamovich Serbiyev, born in 1967. Iznovr Serbiyev was the youngest of the third applicant’s eight children, and lived with her at 62 Arsanova Street in Novye Atagi. He was married and the father of three minor children. After completing his service in the Soviet army in 1987, he graduated from university with a degree in economics. However, he could not find work in this field, and supported his family by working as a car mechanic in Novye Atagi. Iznovr Serbiyev was described by the head of the village administration as a respectful and honest man, who had no connections with the illegal fighters.
11. Said-Magomed Debizov and Iznovr Serbiyev had been friends since childhood. Early in the morning on 14 January 2001 they both went to the car repair shop where Mr Serbiyev worked. They were both carrying identity documents. When the electricity was cut off, they decided to close the workshop and to return home. At about 9.30 a.m. they went out into Gornaya Street, along which two armoured personnel carriers (APCs) and an Ural military truck were passing. Several witnesses testified that the two men had been accompanied by servicemen, who had not been wearing masks and were described as “contract soldiers”, to one of the trucks and put into the back. The vehicles had then driven off towards Grozny, in the direction of the military checkpoint on the main road.
12. The fifth and sixth applicants are the mother and father of Bekkhan Sharpudinovich Bargayev, born in 1981. They lived at 8 Arsanova Street in Novye Atagi. The fifth applicant is a bookkeeper and the sixth applicant is unemployed. Bekkhan Bargayev graduated from the 11th grade of Novye Atagi school no. 2. He was described by the head of the village administration as a modest, good-natured young man, who had mostly stayed at home and had never participated in illegal activities.
13. According to the applicants, on 14 January 2001 Bekkhan Bargayev was washing the family car, a Zhiguli Vaz-2101, near a stream, about 300 metres from his home. At about 1.30 p.m. he saw APCs entering the village and started driving back towards home. An APC, driving at high speed, chased his car and smashed into it. Mr Bargayev was not hurt and climbed out of the car. The fifth applicant, who was at home, ran out because of the noise and the bursts of submachine-gun fire. She saw the servicemen beating her son with rifle butts and tried to intervene. The soldiers beat her, and she fell to the ground. Bekkhan Bargayev was forced into an APC with an obscured hull number and driven away. The neighbours who witnessed the scene were prevented from interfering by armed soldiers.
14. The families of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev have had no news of them since 14 January 2001.
15. The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 14 January 2001 during the daytime, unidentified persons wearing camouflage uniforms and masks, armed with automatic weapons and using armoured vehicles, had arrived in the village of Novye Atagi in the Shali District, apprehended Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev and taken them away in an unknown direction.
16. Immediately after the detention of their family members the applicants started to search for them. Until 16 January 2001 Novye Atagi remained sealed off, and the applicants could not travel and search for their relatives.
17. Most of the men detained during the sweeping operation were released within the following two days, except five men, three of them the applicants’ relatives. On 26 January 2001 the bodies of two detainees were discovered in the Novye Atagi quarry. According to witness statements and a Memorial report, the bodies bore clear signs of torture and violent death: fingers and ears were cut off, there were scars from electric shocks, and knife and gunshot wounds. The Government disputed this information (see below).
18. The applicants applied to numerous official bodies, both in person and in writing, trying to find out the whereabouts and the fate of the three disappeared men. Among other authorities they applied to the departments of the Interior, to the military commanders’ offices, to the Federal Security Service (the FSB), to the civil and military prosecutors at various levels, to administrative authorities and public figures, and to the OSCE mission in Chechnya. The applicants also personally visited detention centres and military bases. On 5 March 2001 the applicants completed UN Human Rights Centre individual reports about cases of forced disappearance.
19. The applicants received no substantive information about the fate of their family members and about the investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of the letters kept by the applicants and the replies they received from the authorities.
20. On 19 January 2001 the first and third applicants, Zulpa Akhmatova and Taus Serbiyeva, wrote letters to the military prosecutor of Chechnya, the head of the Chechnya Administration, the military commander of Chechnya and the Special Envoy of the Russian President in Chechnya for rights and freedoms, asking for help in finding their sons.
21. Several weeks after their sons had been detained, the first and third applicants wrote to the Prosecutor General, the head of the FSB and the Minister of the Interior. In the letters they recounted the details of their sons’ detention and stated that Mr Sukharev, the deputy mayor of Grozny in charge of the release of illegally detained persons, had unofficially told them that Said-Magomed Debizov and Iznovr Serbiyev had been detained at “21 Obron” (special mission brigade no. 21) and that a criminal charge had been brought against them. The applicants asked to be informed of the charges against their sons and to receive confirmation of the place of their detention.
22. On 1 March 2001 the applicants wrote to the member of the State Duma for Chechnya, Mr Aslakhanov, and asked for his assistance in finding their family members.
23. On 2 March 2001 the Shali District Prosecutor’s Office (“the district prosecutor’s office”) informed the third applicant that on 20 February 2001 that office had instituted criminal proceedings (case file no. 23034) in respect of the kidnapping of Said-Magomed Debizov and Iznovr Serbiyev, and that she could review the relevant documents in that office.
24. On 3 March 2001 the third applicant submitted a petition to the head of the Chechnya Administration, the military prosecutor and the military commander of Chechnya to help her find her son.
25. On 21 March 2001 the office of the Public Prosecutor of Chechnya (“the Chechnya Prosecutor’s Office”) forwarded the first and third applicants’ complaint to the district prosecutor’s office with a request to open a criminal investigation under Article 126 of the Criminal Code (kidnapping) following the “disappearance” of their two relatives after “unknown persons dressed in camouflage uniform had conducted an identity check in the village of Novye Atagi”. Similar letters were sent on 24 and 27 May 2001.
26. On 9 June 2001 the district prosecutor’s office informed the first and third applicants that on 20 January 2001 it had instituted criminal proceedings under Article 126 of the Criminal Code into their sons’ kidnapping, and that the file had been assigned no. 23034.
27. On 13 March 2002 the first and third applicants requested the district prosecutor’s office to inform them about the progress in the investigation.
28. On 23 April 2002 the Chechnya Prosecutor’s Office forwarded the applicants’ letter to the district prosecutor’s office for action and requested that office to transfer the investigation file to it.
29. On 23 August 2002 the Chechnya Prosecutor’s Office stated in reply to the applicants’ letters that it had examined the investigation files opened in respect of the kidnapping of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, and that the proceedings had been suspended on account of the failure to identify the culprits. The district prosecutor had been instructed to reopen the investigation and to take further steps in order to identify the culprits and to establish the missing persons’ whereabouts.
30. On 17 September 2002 the district prosecutor’s office informed the first and third applicants that the criminal investigation in case no. 23034 had been reopened and that they should report to the office for questioning.
On 21 April 2003 the first and third applicants asked the district prosecutor’s office to inform them about the progress in the investigation and to grant them victim status in the proceedings.
31. On 12 May 2003 the district prosecutor’s office informed the applicants that the proceedings in criminal case no. 23034 had been adjourned and reopened on two occasions. In September 2002 the investigation had forwarded a number of requests for information to the military commander of the district, to all the local departments of the interior in Chechnya, to all pre-trial detention centres in Chechnya and to the FSB. These measures had produced no results and the investigation had been adjourned on 10 October 2002. The measures aimed at finding their sons would continue.
32. On 17 May 2003 the district prosecutor’s office reminded the first applicant that in March 2001 she had been questioned and had been granted victim status in the criminal proceedings regarding her son’s abduction.
33. On 17 May 2003 the district prosecutor’s office informed the third applicant that on 15 March 2001 it had questioned Iznovr Serbiyev’s wife and granted her victim status in the proceedings.
34. On 11 June 2003 the district prosecutor’s office again informed the first and third applicants about the adjournment of the proceedings and the absence of relevant information from the law-enforcement authorities in Chechnya.
35. On 30 October 2003 the district prosecutor’s office informed the applicants that the investigation in cases nos. 23034 and 23031 had been adjourned, but that steps aimed at finding their relatives continued. The applicants were informed of the possibility of appealing against the decisions to a higher-ranking prosecutor or to a court.
36. The fifth applicant, Saret Yasadova, submitted that in the days immediately following her son’s detention, the military commander of the village, whose name she did not recall, had told her that Bekkhan Bargayev had been in a hospital in Khankala and that he had been “registered on a computer as an illegal fighter”.
37. In January 2001 the fifth applicant wrote to the district prosecutor’s office, the military commander and the military prosecutor of Chechnya, the head of the district administration and the head of the district department of the interior, stating the circumstances of her son’s detention and asking for help in finding him.
38. At some point in 2001 the fifth applicant wrote to the Deputy Prosecutor General in charge of the Southern Federal Circuit and asked for assistance in finding her son.
39. On 3 March 2001 the fifth applicant wrote to the head of the Chechnya Administration, the military prosecutor and the military commander of Chechnya, requesting them to help her find her son.
40. On 7 March 2001 the military prosecutor of military unit no. 20102, based in Khankala, the main Russian military base in Chechnya, informed the fifth applicant that her complaint about the alleged kidnapping of her son by military servicemen had been forwarded to the military prosecutor of military unit no. 20116, based in Shali.
41. On 15 March 2001 the district prosecutor’s office informed the fifth applicant that a criminal investigation (file no. 23031) had been opened into her son’s kidnapping.
42. On 18 May 2001 the military prosecutor of military unit no. 20116 forwarded the fifth applicant’s complaints to the Chechnya Prosecutor for further investigation, since there were no grounds to conclude that military servicemen had been involved in Mr Bargayev’s abduction.
43. On 23 April 2002 the Chechnya Prosecutor’s Office forwarded the fifth applicant’s letter to the district prosecutor’s office.
44. On 23 August 2002 the Chechnya Prosecutor’s Office stated in reply to the applicants’ letters that it had examined the files opened in respect of the kidnapping of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, and that the investigation had been suspended on account of the failure to identify the culprits. The district prosecutor had been instructed to reopen the investigation and to take further steps to identify the culprits and to establish the missing persons’ whereabouts.
45. On 30 October 2003 the district prosecutor’s office informed the applicants that the investigation of cases nos. 23034 and 23031 had been adjourned, but that measures aimed at finding their relatives were being taken. The applicants were informed of the possibility of appealing against the decisions to a higher-ranking prosecutor or to a court.
46. The applicants referred to the report “Counterterrorist Operation” produced by Memorial, which in Chapter 9 described the sweeping operation in Atagi between 14 and 16 January 2001 and the detention of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev. They also referred to the Human Rights Watch report of March 2001 entitled “The ‘Dirty War’ in Chechnya: Forced Disappearances, Torture and Summary Executions”, which listed Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev among the victims of “forced disappearances” after their detention by the Russian servicemen.
47. In their observations the Government did not dispute the information concerning the investigation of the abduction of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev as presented by the applicants. Relying on information obtained from the Prosecutor General’s Office, they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants. However, despite specific requests from the Court, the Government did not submit copies of any documents to which they referred (see below).
48. On 13 February 2001 the district prosecutor’s office opened a criminal investigation (file no. 23031) under Article 126, paragraph 2 (a) and (g), into the kidnapping of B. Bargayev, acting upon a complaint submitted by the fifth applicant, his mother. On 10 April 2001 the investigation of the case was assigned to an operational investigative group within the prosecutor’s office.
49. On 15 March 2001 the fifth applicant was questioned and was granted victim status in case no. 23031. She stated that at about 1.30 p.m. her son had been washing his car in the street near their house. The car had been hit by an APC, from which armed persons in masks had jumped out and taken her son away.
50. Also on 15 March 2001 the sixth applicant, the father of the kidnapped man, was questioned and was granted victim status. He stated that he had not been an eyewitness to the events, but he was certain that the crime had been committed by military servicemen. He could not name the source of that information and did not submit any pecuniary claims for the damaged car.
51. According to the Government, within the same period the investigation had questioned three relatives of Mr Bargayev and the head of the village administration. It had also carried out on-site examinations and taken other relevant steps. A question had been put to the local military commander.
52. On 13 April 2001 the investigation was adjourned on account of the failure to identify the culprits. On 23 April 2001 the investigation was resumed. In April and May 2001 the investigator forwarded requests to the Shali District Department of the Interior, asking that office to take measures to solve the crime. On 23 May 2001 the investigation was adjourned. On 23 August 2002 that decision was quashed by the Chechnya Prosecutor’s Office. On 28 August 2002 the investigation was resumed and new information requests were sent to the “competent bodies”. On 28 September 2002 the investigation was adjourned.
53. On 3 June 2003 the investigation was resumed. On 1 July 2003 the investigator in charge of the case again examined the site of the crime and drew up a plan. On 15 August 2003 the investigation was adjourned. On 29 June 2005 the investigation of criminal case no. 22031 was resumed, and on 29 July 2005 it was again adjourned.
54. In the meantime, on 20 February 2001 the district prosecutor’s office had opened another criminal investigation (file no. 23034), acting upon a complaint by Mrs A. about the kidnapping of her cousin S.-M. Debizov and his friend I.U. Serbiyev, also under Article 126, paragraph 2 (a) and (g).
55. On 2 March 2001 the first applicant was questioned and granted victim status in case no. 23034, concerning the kidnapping of her son S.M. Debizov. On 5 March (in some documents 15 March) 2001 the investigation questioned the wife of I. Serbiyev and granted her victim status in the proceedings. On 15 March 2001 the third applicant was questioned about her son’s abduction. On 29 June 2005 the third applicant was also granted victim status in case no. 23034.
56. On 15 March 2001 the investigation questioned three neighbours of the applicants. The witnesses stated that on 14 January 2001 at about 11 a.m. a number of unknown persons had arrived at the car repair shop where Mr Serbiyev and Mr Debizov worked and had taken them away.
57. On 20 April 2001 the investigation was adjourned on account of the failure to identify the culprits. On 19 September 2001 that decision was quashed and the investigation was resumed. The investigator forwarded requests for information to the local department of the interior. On 30 September 2001 he informed the fourth applicant that the investigation into his brother’s abduction was ongoing. On 19 October 2001 the investigation was adjourned.
58. On 23 August 2002 the Chechnya Prosecutor’s Office examined the case file and quashed the decision to adjourn the proceedings. On 10 September 2002 the investigation was resumed. On 11 September 2002 the first and third applicants were informed about the resumption of the proceedings, and information requests were forwarded to the competent authorities. On 10 October 2002 the investigation was adjourned on account of the failure to identify the culprits. On 28 June 2005 the proceedings in case no. 23034 were reopened.
59. The Government submitted in their observations that on 29 September 2005 the two criminal investigations had been joined by the district prosecutor’s office, because the crimes had been committed at the same time and the same place. The proceedings were assigned case no. 23031.
60. On 29 and 30 June 2005 the investigation again examined the site of the crime, questioned the third applicant and forwarded requests for information about the missing persons to the pre-trial detention centres in the Northern Caucasus. On 29 July 2005 the investigation was adjourned.
61. On 20 August 2005 (or 3 October 2005 according to one document) the investigation was again reopened. The applicants were informed of this. The investigator instructed the local police service to identify and question witnesses to the abduction. On unknown dates the police questioned five persons, who testified that on 14 January 2001 about 15 persons driving an APC, allegedly military servicemen, had entered Novye Atagi and driven Bekkhan Bargayev away. Three other persons testified that on 14 January 2001 a group of unidentified persons wearing masks and camouflage uniforms, armed with automatic weapons and moving about in APC and UAZ vehicles, had taken away Said-Magomed Debizov and Iznovr Serbiyev from the car repair workshop in Novye Atagi.
62. The Government stated, in summary, that the investigation had questioned over a dozen relatives and neighbours of the abducted persons, as well as the head of the Novye Atagi administration, Mr Datsayev, who had given similar accounts of the events. None of the persons questioned had stated that Mr Debizov, Mr Serbiyev and Mr Bargayev had been ill-treated while being apprehended.
63. Furthermore, the Government stated that on 27 January 2001 the Shali District Prosecutor’s Office had opened a criminal investigation (file no. 23011) following the discovery on 26 January 2001 on the outskirts of Novye Atagi of two male bodies with firearm wounds. The two men had been identified as Z. and Kh., residents of another village, who had left home in the morning of 14 January 2001 and had not been seen alive afterwards. The investigation had not obtained information to confirm that Z. and Kh. had been tortured before their deaths. The investigation had not obtained any clues to link the case to the abduction of the applicants’ relatives and was ongoing.
64. The Government further admitted that the investigation into the kidnapping of the applicants’ three relatives had been unable to establish their whereabouts. It found no evidence to support the involvement of the “special branches of the power structures” (специальных подразделений силовых структур) in the crime. The law-enforcement authorities of Chechnya had never arrested or detained Mr Debizov, Mr Serbiyev and Mr Bargayev on criminal or administrative charges and had not carried out a criminal investigation in respect of any of them. The Shali District Department of the Interior, the Chechnya Department of the FSB and the Northern Caucasus military circuit stated that no special operations had been carried out in respect of the three men and that they had never been detained by them. Furthermore, the Government stressed that the criminal investigation had obtained no information to confirm the applicants’ allegations that the village had been “sealed off” by servicemen or that a special operation had been carried out there at the time. The possibility could not be excluded, in their view, that the crime had been committed by members of the illegal armed groups who had entered the village.
65. Despite specific requests by the Court on two occasions, the Government did not submit any documents from the file in criminal case nos. 23031 and 23034, except for a copy of the list of documents contained in it. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings and could prejudice the success of the investigation.
66. For a summary of the relevant domestic law, see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
VIOLATED_ARTICLES: 13
2
3
5


ITEMID: 001-81805
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KRASNOV AND SKURATOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of P1-3 in respect of Mr Krasnov;Violation of P1-3 in respect of Mr Skuratov;No separate issue under Art. 14;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The first applicant was born in 1956 and the second applicant in 1952. They both live in Moscow.
8. On 7 December 2003 the general elections to the State Duma of the Federal Assembly of the Russian Federation, the lower chamber of the Russian bicameral legislature, were held to elect 450 members for a term of four years. One half of the members (225 seats) were returned by a majority vote from single-mandate district constituencies. The other 225 seats were allocated on a proportional basis to candidates on federal rolls submitted by political parties or electoral blocs that gained more than five per cent of the valid votes cast in a single federal constituency ballot.
9. On 28 August 2001 Mr Krasnov was elected head of the district council of the Presnenskiy district of Moscow (глава районной управы Пресненского района г. Москвы).
10. On 6 November 2002 the Moscow City Duma enacted Law no. 56 “on the organisation of local self-government in the city of Moscow”. Section 10 of that law determined that the bodies of local self-government in Moscow would include a municipal assembly (муниципальное собрание) as the representative body and a municipality (муниципалитет) as the executive body. Pursuant to transitional provisions of the law (section 43 § 2), heads of district councils who had been appointed or elected to their position before the law was enacted were to remain in power until the appropriate body had been formed, and its officials appointed or elected, in accordance with the law.
11. On 29 May 2003 the municipal assembly of the Presnenskiy district passed a decision to rename the district council of the Presnenskiy district of Moscow as the “Presnenskiy” municipality (муниципальное учреждение – муниципалитет «Пресненский»). On the same day the assembly adopted the regulation on the “Presnenskiy” municipality and appointed Mr Klubkov as its director.
12. On 16 June 2003 the director of the “Presnenskiy” municipality ordered the dismissal of the first applicant on the ground that he had not been re-elected to his position.
13. On 24 September 2003 the first applicant submitted his self-nomination application, for the elections to the State Duma, to the District Election Commission (DEC) of central single-mandate constituency no. 202 (in Moscow). He indicated that he was employed as “the head of the district council of the Presnenskiy district of Moscow”.
14. On 9 October 2003 the District Election Commission registered the first applicant as a candidate for election.
15. On 31 October 2003 the District Election Commission examined materials concerning verification of the information submitted by the first applicant and decided to apply to the Moscow City Court with a request for the annulment of its own decision of 9 October 2003 in the light of newly discovered circumstances.
16. On 6 November 2003 the Moscow City Court granted the Commission's request and annulled the first applicant's registration as a candidate for the Duma elections. It established that the first applicant had submitted untrue information about his employment as head of the district council of the Presnenskiy district of Moscow.
17. On 21 November 2003 the Supreme Court of the Russian Federation dismissed the first applicant's appeal against the judgment of 6 November 2003, finding as follows:
“The [first-instance] court correctly applied the substantive law ... [I]t determined that, once it had been established that the information submitted by a candidate about himself, including the place of his employment, was untrue and if such circumstance became known after the registration, a court ... could annul the decision on registration.
Having examined the evidence obtained by the District Election Commission after the registration of Mr Krasnov, the court established that on 28 August 2001 Mr Krasnov had been elected as head of the Presnenskiy district council and that on the basis of a decision ... of 29 May 2003... the district council was renamed as the 'Presnenskiy' municipality and Mr [Klubkov?] was appointed its director, whereas Mr Krasnov was dismissed ... because he had not been re-elected ... It follows that at the time of self-nomination Mr Krasnov was not the head of the district council of the Presnenskiy district of Moscow.
The arguments in the appeal to the effect that the re-organisation of the district council had been carried out in flagrant breach of the law and that Mr Krasnov's dismissal had been unlawful cannot be the grounds for quashing of the judgment and for declaring Mr Krasnov's registration valid, as the examination of these issues falls outside the scope of the present proceedings. Neither the re-organisation of the district council nor Mr Krasnov's dismissal were ... appealed against or annulled.
Mr Krasnov's argument that his continued employment as head of the district council is confirmed by the entry in his employment record, has been examined and rejected by the court. It follows from the case-file that on 23 June 2003 a letter was sent to Mr Krasnov's address whereby he was invited to take cognisance of the dismissal order. The claimant did not make use of his procedural right to prove the circumstances on which his claims were based ... For instance, he did not produce a certificate from the human resources department about his position at the moment of self-nomination or any orders (regulations) that he may have adopted after June 2003 as head of the district council, or any other proof of his employment in that period.”
18. On 20 October 2003 the second applicant submitted the documents concerning his nomination by the Communist Party of the Russian Federation (“CPRF”) for the elections to the State Duma, to the District Election Commission of the Buryatskiy single-mandate constituency no. 9. According to the acknowledgement-of-receipt coupon signed by the secretary of the Commission, the second applicant enclosed an application form, copies of his passport, diplomas and employment record (see paragraph 33 below), tax and property declarations and a copy of a certificate attesting to the membership status of the Communist Party's candidates for election to the State Duma, signed by the Chairman of the Central Committee of the Communist Party and addressed to the Central Election Commission (CEC) (see paragraph 34 below).
19. On 27 October 2003 the District Election Commission refused registration of the second applicant, invoking the following three grounds:
“In the application written by the candidate Skuratov himself, his position is indicated as 'acting head of the department of constitutional, administrative and international law of the Moscow State Social University'. However, according to the entries in the candidate's employment record, his appointment as acting head of the department ... occurred at the same time as his transfer to the position of professor in the same department ... In fact, Mr Skuratov simultaneously performs the duties of acting head of the department and those of a professor of [that] department, which does not correspond to the information that he provided about his employment.
Having indicated his membership of the Communist Party of the Russian Federation, the candidate ... did not provide a document showing his membership of the CPRF and his status within the party addressed to the District Election Commission and endorsed by the standing management of the party. Instead he submitted a copy of a certificate concerning membership of candidates for the State Duma elections and their status within the party addressed to the Central Election Commission ...”
20. The third ground for the refusal was that the copies of the second applicant's diplomas had been certified by a non-governmental organisation rather than by the competent authority.
21. On 29 October 2003 the second applicant complained to the Central Election Commission.
22. On 4 November 2003 the Central Election Commission determined that the District Election Commission had no solid grounds to consider that the second applicant had submitted untrue information. The CEC requested the District Commission to reconsider the second applicant's registration immediately.
23. On 11 November 2003 the District Election Commission issued a new decision refusing the second applicant's registration. It modified the first two grounds for refusal and added a new one. As to the second applicant's employment, it stated that, according to a certificate of 29 October 2003 signed by the pro-rector of the Moscow State Social University and enclosed with the second applicant's complaint to the CEC, Mr Skuratov was a professor in the department. Since a copy of that certificate had not been made available to the District Election Commission, the second applicant was considered to be in breach of electoral law in that he had failed to inform it of a change in his employment. As to the second applicant's membership in the CPRF, the Commission noted that he had been in possession of an appropriate document and had enclosed it with his complaint to the CEC, but he had only done so on 29 October 2003, that is after the expiry of the registration period on 22 October 2003. As a new ground for refusal, the Commission found that the second applicant had printed certain campaign materials which had not been paid for from his election fund.
24. The second applicant complained once again to the Central Election Commission. On 20 November 2003 it rejected his complaint. It determined that the second applicant had omitted to state that he had also been a professor in the university and that a document showing his membership in the CPRF had been incorrectly addressed.
25. The second applicant contested these decisions before a court. On 25 November 2003 the Supreme Court of the Buryatiya Republic dismissed his claim, upholding the first two grounds for refusal relied upon by the District Election Commission. It found that the second applicant had failed to inform that Commission of his appointment to the position of professor and to submit an appropriate document confirming his party membership.
26. On 29 November 2003 the Supreme Court of the Russian Federation upheld, on the second applicant's appeal, the judgment of 25 November 2003. It found as follows:
“It has been established that in the application form ... of 2 October 2003 the candidate ... Skuratov indicated his position as acting head of the department ... However, it transpires from a copy of Skuratov's employment record ... that he was appointed acting head of the department ... by the order ... of 30 May 2003. Pursuant to the order ... of 28 May 2001 Skuratov had been elected for three years as a professor of the department of constitutional law ... and, by an order ... of 30 May 2003, he was transferred to the position of professor of the department of constitutional, administrative and international law. Skuratov failed to submit information ... concerning his transfer to the position of professor of the department of constitutional, administrative and international law.
The court cannot agree with his argument that he had no intention of misleading the election commission ... because he did not see any substantial discrepancy in the information submitted. The [first-instance] court correctly determined that he should have indicated, as his current position, that of professor ... Because it is precisely that position which defines, in the spirit of the labour law, the substance of the employment contract between [Skuratov] and the educational institution, which corresponds to its organisation chart and which determines the nature of his professional duties ... At the same time, the fact of acting in another position may only be of a temporary nature, that is until the person has been approved in that position or has been reassigned to his old one ...
The Supreme Court also considers that, as the right of a candidate to indicate his party membership and status in his application form carries a corresponding obligation to submit a document confirming that information ... officially certified by the standing governing body of the political party, such document cannot be replaced by the list of that party's candidates in single-mandate constituencies signed and sealed by the Chairman of the party's central committee and addressed to the Central Election Commission ...
Pursuant to section 47 § 8(3) of the Elections Act, a failure to submit documents required for registration of a candidate under that law is a ground to refuse registration of that candidate ...”
27. On 6 September 2003 the Communist Party of the Russian Federation submitted its federal roll of candidates to the State Duma elections. On 13 October 2003 the roll was registered by the Central Election Commission. The second applicant was candidate no. 5 in the Urals regional group.
28. On 25 November 2003 Mr K., Chairman of the general council of the electoral bloc “Russian Pensioners' Party and Party of Social Justice”, made an application to the Supreme Court of the Russian Federation, seeking exclusion of the second applicant from the federal roll of the Communist Party. Referring to the decisions of the District Election Commission of the Buryatskiy district, he claimed that the submission of untrue information by the second applicant had infringed the rights of other political parties and electoral blocs standing in the elections, including his bloc.
29. In its observations of 28 November 2003, the Central Election Commission objected to the granting of the application. In its view, the claimants had failed to show how the registration of the second applicant had impaired their rights. It submitted that at the time of registration of the federal roll, the CEC had had no doubts as to the accuracy and authenticity of the information submitted by the CPRF about its nominees and that the circumstances invoked by the claimants could not be a ground for curtailing the second applicant's right to stand for election.
30. On 28 November 2003 the Supreme Court of the Russian Federation granted the application by Mr K., finding that the personal information submitted by the second applicant had been untrue because the position of “acting head of a department” was not among those listed in the Russian Labour Code and in the Graduate and Post-graduate Professional Education Act. Both the second applicant and the CPRF appealed.
31. On 4 December 2003 the Appeals Division of the Supreme Court upheld the judgment of 28 November 2003, giving the following reasons:
“Having indicated in his application form ... that his position was acting head of the department ... while he permanently held the position of professor in that department, Mr Skuratov thereby submitted inaccurate personal information, which was the ground ... to annul his registration ... [T]he first-instance court was also justified in referring to the fact that neither the Labour Code nor the Graduate and Post-graduate Professional Education Act provided that the office of acting head of a department was a permanent one ...
As the Supreme Court correctly determined in its judgment, the right to apply to a court with an application for annulment of a candidate's registration ... is vested ... in political parties and electoral blocs ... (section 95 § 6 of the Elections Act, Article 260 § 1 of the Code of Civil Procedure). As to the specific electoral rights and interests of the claimant (who had also submitted and registered a federal roll of candidates to the State Duma), in the instant case they are affected by the inclusion of the candidate Skuratov in the federal roll of candidates of the CPRF because that candidate had not complied with the formal requirements that applied in an equal measure to all candidates, political parties and electoral blocs and made possible the exercise of the right to stand for election. Such interests of the claimant are envisaged in sections 1 and 3 of the Elections Act, according to which members of the State Duma of the Russian Federation are elected by citizens of the Russian Federation in general, equal and direct elections; political parties and electoral blocs stand for election to the State Duma members on equal grounds in accordance with the procedure established by the present federal law ...” (original emphasis)
32. The second applicant submitted a copy of his employment record (трудовая книжка) and a copy of the Communist Party's certificate.
33. The relevant entries in his employment record read as follows:
“28. 24/10/1995. Started fulfilling duties of Prosecutor General of the Russian Federation...
29. 20/04/2000. Discharged from the prosecution bodies of his own initiative...
...
34. 31/12/2002. Appointed acting head of the department of constitutional and administrative law, order no. 3832-l of 31 December 2002.
35. 01/01/2003. Transferred to the position of professor of constitutional and administrative law, order no. 856-l of 17 April 2003.
36. 30/05/2003. Transferred to the position of professor of constitutional, administrative and international law, order no. 1171a-l of 30 May 2003.
37. 30/05/2003. Dismissed from the position of professor of constitutional and administrative law, order no. 1190a-l of 30 May 2003.
38. 01/06/2003. Appointed acting head of the department of constitutional, administrative and international law, order no. 1169a-l of 30 May 2003.”
34. The relevant parts of the certificate printed on the letterhead of the Communist Party of the Russian Federation read as follows:
“To the Central Election Commission of the Russian Federation:
Certificate concerning membership of candidates to the State Duma ... standing for election in single-mandate constituencies ... in the political party 'Communist Party of the Russian Federation' and their status in the party.
...
9. Buryatiya Republic, district no. 9 – Skuratov Yuriy Ilyich – CPRF member.
...
Chairman of the [Central Committee] of the CPRF [signature, seal] G. Zyuganov”
35. The Election Act (Federal Law “On election of members of the State Duma of the Federal Assembly of the Russian Federation”, no.175-FZ of 20 December 2002, as amended on 23 June 2003) provides as follows.
Pursuant to section 47 § 8 (6), a candidate may not be registered if he or she submitted untrue information in his or her application form. According to section 38 § 7 (1), the application form of a candidate who nominated himself or herself for the elections must indicate, in particular, his or her “education, principal place of work or service and the position held (if he has no principal place of work or service – profession)”. The same information is required from candidates nominated to federal rolls by political parties (section 41 § 4 (1)) who may, in addition and without being obliged to do so, indicate their membership and status in a political party on the condition that they submit a document confirming such information and officially certified by the standing governing body of that party. The same requirements apply to the candidates nominated by political parties for election in single-mandate constituencies (section 41 § 12).
36. On 27 January 2004 the Office for Democratic Institutions and Human Rights of the Organisation on Security and Cooperation in Europe (OSCE) released the final Election Observation Mission Report concerning the elections to the State Duma held on 7 December 2003. The relevant extracts read as follows:
“There were relatively few complaints concerning registration of parties and candidates, and the CEC adjudicated most of these in a fair and open manner. However in a number of instances, courts and lower level election commissions disqualified candidates in a selective manner for trivial violations ...
In a ruling which suggested an inconsistent and selective application of the registration rules, former Procurator General Yuriy Skuratov (DEC 9) was refused registration on the basis that he had failed to mention in his nomination papers that he had a second job of a professor at Moscow State Social University and had also failed to provide timely confirmation of his membership of the [Communist Party]. The DEC's decision was initially revoked by the CEC. However, when the matter was remitted to the DEC, it again refused to register Mr Skuratov, on the same grounds. On a second appeal to the CEC, Mr Skuratov's complaint was rejected on the grounds that the DEC had provided clearer reasons for its decision. Mr Skuratov's subsequent appeal to the Supreme Court was also rejected.”