Постановление Европейского суда по правам человека от 17.09.2009 «Дело Асадулаева и другие (asadulayeva and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ASADULAYEVA AND OTHERS v. RUSSIA
(Application No. 15569/06)
JUDGMENT*
(Strasbourg, 17.IX.2009)
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*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Asadulayeva and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

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*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 27 August 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 15569/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by three Russian nationals listed in paragraph 5 below ("the applicants"), on 7 April 2006.

2. The applicants were represented by lawyers of the Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with a representative office in Moscow, Russia. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 28 May 2005 the President of the First Section decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

4. The Government objected to the joint examination of the admissibility and merits of the application and the application of Rule 41 of the Rules of Court. Having examined the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
5. The applicants are:

1) Ms Lyaylya Adiyevna Asadulayeva (also spelled as Leyla/Layla Adiyevna Asadulayevna), born in 1967;

2) Ms Aset Eslyudyevna Saitova, born in 1981, and
3) Ms Zinaida Adiyevna (also spelled as Adyevna) Asadulayeva, born in 1976.

6. The applicants live in Alkhan-Kala, in the Groznenskiy District of the Chechen Republic.

7. The first and third applicants are sisters of Mr Bekman Adiyevich Asadulayev, born in 1979. The second applicant is his wife. The couple have two children, born in 2003 and 2004.

A. Abduction of Bekman Asadulayev
1. The applicants' account
8. At the material time Bekman Asadulayev lived in the village of Kerla-Yurt together with the second applicant and their child. He was employed as a police officer of the Pobedinskoye police station of the Groznenskiy district office of the Interior (ROVD).

9. On 14 January 2004 Mr S., head of the ROVD, summoned Bekman Asadulayev to the ROVD and instructed him to go to the Ministry of the Interior of the Chechen Republic (MVD) to give an explanation to Mr G., an official of the MVD human resources department, in connection with his unauthorised absence from work.

10. Bekman Asadulayev, Mr Sh., the then acting head of the Pobedinskoye police station, and a Mr A. drove to the MVD.

11. At about noon on 14 January 2004 they arrived at the MVD. The MVD grounds, including the MVD building, were surrounded by a high fence and could be entered only through a checkpoint. At that checkpoint visitors had either to apply for a special temporary pass or show their identity cards. Every visitor's identity information was registered at the checkpoint in special visitors' logbooks. Armed security guards were stationed at the secure gate leading to the MVD grounds. The external access road to the MVD grounds had two further checkpoints. Each of them was guarded by security personnel and kept its own visitors' logbook.

12. Upon arrival at the MVD secure gate Bekman Asadulayev and Mr Sh. got out of the car and went into the MVD building. Mr A. stayed in the vehicle. Bekman Asadulayev and Mr Sh. were received by Mr G. Bekman Asadulayev made a written statement and handed it over to Mr G. At that moment three or four armed men in military uniforms walked into the room. Their uniforms were unusual in that they were grey and had many pockets. While leaving the building Bekman Asadulayev and Mr Sh. were stopped by the armed men who had apparently followed them. The men asked for Bekman Asadulayev's and Mr Sh.'s identity cards. After checking the documents, they returned Mr Sh.'s identity card to him but did not give Bekman Asadulayev his identity card back. They told Bekman Asadulayev that they would take him with them "for a check", handcuffed him and put him in a dark blue VAZ-21099 car which was parked at the entrance of the MVD building. The car, which did not have licence plates, was driven to the checkpoint at the gate. The officers at the checkpoint did not stop the car; the driver merely honked and the car was allowed to pass through without being checked. Having left the MVD grounds, the car was driven to an unknown destination.

13. When Mr Sh. left the MVD grounds and met Mr A., he told the latter about the incident and they decided to go to Mr S., head of the ROVD, to alert him to the abduction of Bekman Asadulayev. Meanwhile, Mr S. had arrived at the MVD entrance gate in his car. Having heard their account, Mr S. reassured them that there were no reasons to worry and that on the following day they would "have information about everything". Mr S. took Bekman Asadulayev's service submachine gun from the car in which the three men had arrived at the MVD and left.

14. In the days that followed Mr S. tried to find out who had apprehended Bekman Asadulayev, how the abductors had managed to enter the premises of the MVD and where they could have taken Bekman Asadulayev. However, his attempts failed to produce any results.

15. On an unspecified date in 2004 Mr Sh. was killed.

16. The description of the above events is based on complaints by the first applicant to various State bodies dated 19 February 2004, a written statement by the first applicant to her representative made on 8 December 2004, an undated written statement by Mr A. and three hand-drawn maps of the grounds of the MVD.

2. The Government's account
17. The Government submitted, with reference to the information obtained in the course of the investigation in criminal case No. 30012 (see below), that on 14 January 2004 unidentified armed men in camouflage uniforms had abducted Bekman Asadulayev from the secure grounds of the MVD.

B. Official investigation into the
abduction of Bekman Asadulayev
1. The applicants' account
18. On 17 January 2004 the third applicant complained about the abduction of Bekman Asadulayev to the prosecutor's office of the Leninskiy district of Grozny (the district prosecutor's office). She described the circumstances of her brother's abduction from the MVD grounds and requested assistance in establishing his whereabouts.

19. On 4 February 2004 the district prosecutor's office instituted an investigation into the abduction of Bekman Asadulayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given number 30012. It does not appear that the applicants were notified of that decision.

20. On 18 February 2004 the district prosecutor's office summoned the third applicant to their office on an unspecified date in connection with her complaint of 17 January 2004. It is unclear whether the meeting took place and if so, whether any investigative measures were carried out with the third applicant's participation.

21. On 19 February 2004 the first applicant complained about the disappearance of Bekman Asadulayev to a number of State authorities, including the prosecutor of the Chechen Republic, the Minister of the Interior of the Chechen Republic and the Prosecutor General of the Russian Federation. In her letters she described the circumstances of Bekman Asadulayev's abduction from the grounds of the MVD. She submitted, in particular, that on 14 January 2004 Bekman Asadulayev had been summoned to the MVD to meet Mr D., the deputy Minister of the Interior of the Chechen Republic. Mr G. had obtained Bekman Asadulayev's statement and while the latter had been leaving, unidentified men had apprehended him and had taken him away in a dark blue VAZ vehicle. The first applicant pointed out that the abductors' vehicle had not been stopped at the checkpoint and provided the names of the two persons who had witnessed her brother's apprehension, Mr Sh. and Mr A.

22. On 15 March 2004 the district prosecutor's office granted the third applicant victim status in connection with the proceedings in case No. 30012. She was notified of the decision on the same date.

23. On 12 May 2004 the MVD informed the first applicant that they had conducted an internal inquiry in connection with her complaint about the abduction of Bekman Asadulayev; however, it had failed to establish his whereabouts. The letter further stated that all information concerning the criminal investigation was to be obtained from the district prosecutor's office.

24. In a letter of 12 May 2004 the prosecutor's office of the Chechen Republic (the republican prosecutor's office) notified the third applicant, in reply to her query, that the district prosecutor's office had instituted a criminal investigation into the abduction of Bekman Asadulayev and that operational and search measures aimed at establishing his whereabouts and solving the crime were under way.

25. On 17 May 2005 the third applicant complained to the district prosecutor's office about the lack of information concerning the progress and the results of the investigation in criminal case No. 30012. She requested the authorities to conduct an effective and thorough investigation into her brother's abduction and to update her on the steps taken by the investigating authorities.

26. On 15 July 2005 the third applicant submitted to the district prosecutor's office a repeated complaint about the lack of information on the investigation in case no. 30012, reiterating the grievances she had raised in the letter of 17 May 2005 and pointing out that the district prosecutor's office had disregarded her previous complaint.

27. On 21 July 2005 the applicants' representatives wrote to the district prosecutor's office. They described in detail the circumstances of Bekman Asadulayev's abduction and complained about the lack of information concerning the criminal investigation in case No. 30012. In particular, they requested that the applicants be updated on the progress of the investigation and that it be resumed if it had been suspended. They further enquired whether the investigating authorities had questioned the servicemen on duty at the checkpoint of the MVD at the material time; whether measures had been taken to establish the circumstances of abductors' vehicle's unhindered passage through the checkpoints; whether the crime scene had been inspected; and whether eyewitnesses to the abduction had been questioned. It does not appear that the applicants or their representatives received a reply to that request.

28. On 29 December 2005 the applicants' representatives wrote a letter along the same lines to the republican prosecutor's office. They forwarded a copy of their letter to the district prosecutor's office. It does not appear that their letters were ever replied to.

2. Information submitted by the Government
(a) Internal inquiry
29. From the Government's submissions it transpires that on 17 January 2004 the authorities launched an internal inquiry into the incident of 14 January 2004. The Government neither specified the authority in charge of the inquiry nor furnished any other information in that connection.

(i) Questioning of Mr Sh.

30. On 17 January 2004 Mr Sh. was questioned as part of the inquiry. He submitted that on 14 January 2004, at about 10 a.m., he had arrived by car at the MVD with Bekman Asadulayev and Mr A. Bekman Asadulayev had been summoned to the MVD by their human resources department. Mr Sh. and Bekman Asadulayev had entered the MVD building while Mr A. had stayed outside in the car. Mr Sh. and Bekman Asadulayev had gone to the office of Mr G., an official of the human resources department, who had instructed Bekman Asadulayev to write a statement with a view to clarifying certain personal information in connection with his recruitment. At that moment three men in camouflage uniforms armed with automatic weapons had entered the office of Mr G. Two minutes later the armed men had left.

31. When Bekman Asadulayev had finished writing his statement, Mr G. had allowed him and Mr Sh. to leave and they had left the building. There they had seen a dark blue VAZ-21099 car with tinted windows and without licence plates. There had been four men armed with automatic weapons by the car. They had not been wearing masks. One of the armed men had asked Bekman Asadulayev and Mr Sh. who they had been visiting. Mr Sh. had replied that they had just seen Mr G. The armed man had then requested that Mr Sh. and Bekman Asadulayev produce their service certificates. Having checked them, the armed men had returned Mr Sh.'s document to him. They had told him that he was free to leave but had taken Bekman Asadulayev with them. Mr Sh. had requested the armed men to identify themselves but they had refused. They had forced Bekman Asadulayev into the back of the VAZ-21099 car, had honked to the guards who had opened the gate for them and had left the MVD grounds for an unknown destination.

32. Mr Sh. had decided to follow the armed men but by that time he had seen Mr S., head of the ROVD, arrive at the MVD building. Mr Sh. had immediately alerted Mr S. to the abduction of Bekman Asadulayev. Mr S. had taken Bekman Asadulayev's service submachine gun and explained to Mr Sh. that he had talked to the head of the MVD human resources department, Mr Zh., and that the "competent authorities [were] dealing with Bekman Asadulayev" because they had had "information capable of compromising him" (компрометирующий материал).

(ii) Questioning of Mr S.

33. On 23 January 2004 Mr S., head of the ROVD, was questioned. He submitted that in the afternoon on 13 January 2004 he had been instructed to send Bekman Asadulayev to see