Постановление Европейского суда по правам человека от 24.09.2009 «Дело Бабушева и другие (babusheva and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF BABUSHEVA AND OTHERS v. RUSSIA
(Application No. 33944/05)
JUDGMENT*
(Strasbourg, 24.IX.2009)
____________________________
*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 Babusheva and Others v. Russia,

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

Christos Rozakis, President,

Nina {Vajic}*,

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

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 3 September 2009,

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

PROCEDURE
1. The case originated in an application (No. 33944/05) 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 the seven Russian nationals listed below ("the applicants"), on 20 September 2005.

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 Russia. The Russian Government ("the Government") were represented by Mr A. Savenkov, First Deputy Minister of Justice, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 31 March 2008 the Court decided to apply Rule 41 of the Rules of Court, grant priority treatment to the application and give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

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

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

1) Ms Roza Babusheva, born in 1966,

2) Mr Kharon Babushev, born in 1928,

3) Mr Lomali (also spelled as Lom-Ali) Babushev, born in 1986,

4) Ms Khadizhat Babusheva, born in 1988,

5) Ms Nura Babusheva, born in 1993,

6) Mr Turpal-Ali Babushev, born in 1994 and
7) Ms Nurseda Babusheva, born in 2003.

The applicants live in the village of Makhkety, in the Vedeno district, Chechnya.

6. The first applicant is the wife of Ramzan (also known as Vakha) Babushev, who was born in 1960; the second applicant is his father; and the third to seventh applicants are his children.

7. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Disappearance of Ramzan Babushev
1. The applicants' account
a. The abduction of the applicants' relative
8. At the material time Ramzan Babushev worked as a car mechanic. On 4 February 2003 the first, second and sixth applicants and Ramzan Babushev were at their home at 27 Zarechnaya Street (in the submitted documents the address was also referred to as 37 Zarechnaya Street) in Makhkety, Chechnya. The third, fourth and fifth applicants were at school. The first applicant was pregnant with the seventh applicant. Two neighbours had come to visit and were also in the applicants' house.

9. At around 11 a.m. a military UAZ car arrived at the house. A group of about ten to fifteen Russian military servicemen got out of the car; some of them remained in the street next to the house, whereas others went inside. The men spoke Russian without an accent and were of Slavic appearance. The person who was apparently in charge of the group introduced himself as Mr Y.B., the head of the department of the interior of Khattuni (also spelled as Khatuni) village (the Khattuni OVD). It appeared that he was on mission in Chechnya from the OMON (special police forces) unit of the Perm region, Russia. The servicemen asked Ramzan Babushev to repair their car. He agreed and they moved the car into the applicants' yard. Ramzan Babushev changed into his work clothes and started the repair work.

10. Meanwhile, the servicemen contacted someone via their portable radio set. Approximately 10 - 15 minutes later an armoured personnel carrier ("APC") carrying a group of about twenty masked servicemen arrived at the applicants' house. The servicemen from the APC ran into the yard and put handcuffs on Ramzan Babushev and a dark sack over his head. They ordered the first applicant to go into the house, threatening to kill her if she stayed in the yard. After that they put Ramzan Babushev into the APC. The servicemen neither introduced themselves nor produced any documents. Almost all of them were wearing masks; three of them, who did not have masks, were of Slavic appearance. The first applicant asked them who their commander was and why they were taking her husband away. She did not receive any answer to her questions.

11. After that Mr Y.B. asked the servicemen from the APC whether his group was free to go. They received permission and the UAZ car and the servicemen left. Immediately after their departure, the servicemen from the APC started to search the applicants' house. The search took about one and a half hours. During the search the servicemen seized a number of the applicants' possessions, including a videocassette recorder, a TV set, Ramzan Babushev's clothing and tools, the first applicant's jewellery, the family photographs, two car engines and car repair parts. The servicemen loaded the applicants' belongings into the APC and drove away.

12. The abduction of Ramzan Babushev was witnessed by a number of the applicants' neighbours and relatives.

b. Subsequent events
13. The applicants immediately started their search for Ramzan Babushev. On the same day, 4 February 2003, the first applicant and her relatives went to the local department of the Federal Security Service (the FSB) in the village of Khattuni, in the Vedeno district, Chechnya. At the checkpoint located at the entrance to the building they met the deputy head of the department of the FSB, who introduced himself as officer V. He confirmed that they had arrested Ramzan Babushev in order to assist the servicemen of the Khattuni OVD, which at the time was staffed with policemen from the Perm region. Officer V. told the first applicant that the military commander of the Vedeno district (the district military commander) had issued an order for the arrest of Ramzan Babushev as the local authorities had opened criminal proceedings against him. According to the officer, at some point Ramzan Babushev was supposed to be transferred from the Khattuni OVD to the Vedeno temporary district department of the interior (the Vedeno VOVD). Officer V. had seen Ramzan Babushev after the arrest and agreed to take a warm jacket from the first applicant and pass it on to him.

14. On 4 February 2003, at the checkpoint in Khattuni, the first applicant and her relatives saw the three servicemen who had participated in the arrest of Ramzan Babushev and had not been wearing masks during the abduction.

15. On 5 February 2003 the first applicant and a relative spoke to the deputy district military commander officer Yr., who assured them that their office had not opened any criminal proceedings against Ramzan Babushev and had not issued any orders for his arrest.

16. In the middle of February 2003 the first applicant went to the department of the FSB in Khattuni, together with the head of Makhkety village administration. There they met with the officer V. who showed them a written statement certifying that on 4 February 2003 at 6 p.m. hours the head of the local department of the FSB, Mr M.G., had handed Ramzan Babushev over to the head of the Khattuni OVD, Mr Y.B.

17. In the beginning of March 2003, during their visit to the Khattuni OVD, the first applicant met with a serviceman who introduced himself as an operational-search officer V.K. The applicant recognized him as one of the servicemen who had participated in the abduction of Ramzan Babushev. Officer V.K. told the first applicant that her husband had been transferred from the Khattuni OVD to "the Chechen special task group" (чеченская группа специального назначения) and that from there he had been transferred to a prison in Vedeno. The officer confirmed that he had seen Ramzan Babushev in prison, and that he had asked him to say hello to his family. V.K. took a package from the first applicant to pass to her husband.

18. On the following day the first applicant again met with officer V.K. He told her that he had passed on the package to her husband and that Ramzan Babushev had been beaten up, but that he was feeling better and recovering.

19. Some time later in March 2003 the first applicant spoke again to the head of the Khattuni OVD, Mr Y.B. He told her that Ramzan Babushev had been transferred to the Vedeno ROVD. He suggested to the first applicant that she speak to the head of the Vedeno ROVD, officer V.P.

20. After that, in March 2003, the first applicant went to the Vedeno ROVD and spoke to officer V.P. He told her that Ramzan Babushev had not been guilty of anything and promised that he would assist in expediting his release. However, it appears that this officer left Chechnya on or about 10 April 2003 without having helped the applicants.

21. On a number of occasions the first applicant complained in person to the Vedeno district prosecutor's office (the district prosecutor's office) requesting that they conduct a confrontation between her and the head of the Khattuni OVD, Mr Y.B. Her requests were ignored.

22. On an unspecified date the first applicant lodged a claim with the Vedeno District Court of Chechnya seeking to have her husband Ramzan Babushev declared a missing person. On 27 February 2004 the district court granted her claim and declared him a missing person as of 4 February 2003.

23. In support of their statements, the applicants submitted: an account by the applicants' neighbour Ms I.A. given on 13 March 2005; an account by the applicants' relative Mr I.B. given on 15 March 2005; an account by the applicants' neighbour Mr V.T. given on 16 March 2005; an account by the applicants' relative Ms A.A. given on 16 March 2005 and an account by the applicants' neighbour Mr S.A. given on 20 March 2005.

2. Information submitted by the Government
24. The Government did not challenge most of the facts as submitted by the applicants. According to their submission "...in connection with the abduction by unidentified persons of R.Kh. Babushev on 4 February 2003 in Makhkety in the Vedeno district, on 12 February 2003 the Vedeno district prosecutor's office instituted a criminal investigation..."
B. The search for Ramzan Babushev and the investigation
1. Information submitted by the applicants
25. Since 4 February 2003 the applicants have repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the NGO SRJI. In their letters to the authorities the applicants referred to their relative's detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted some of the letters to the authorities and the replies to the Court, which are summarised below.

26. On 12 February 2003 (in the submitted documents the date is also referred to as 6 February 2003) the district prosecutor's office instituted an investigation into the disappearance of Ramzan Babushev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The decision stated, inter alia, the following:

"...at about 12 noon on 4 February 2003, during a special operation, a resident of Makhkety in the Vedeno district R.Kh. Babushev was detained by unidentified military servicemen at his house in Makhkety and taken away in an APC to an unknown destination..."
The case file was given number 24012 (in the submitted documents the case file is also referred to under No. 25137).

27. On 14 February 2003 the first applicant was granted victim status in criminal case No. 24012. The decision stated, inter alia, the following:

"...on 4 February 2003, during a special operation in Makhkety in the Vedeno district, unidentified military servicemen took away all property from the household at 37 Zarechnaya Street, and detained Ramzan Babushev whom they took away to an unknown destination..."
28. On 14 July 2003 the first applicant wrote to the head of the department of the search for missing persons of the Vedeno ROVD, to the military prosecutor's office of military unit No. 20116 and to the military prosecutor's office of the United Group Alignment ("the military prosecutor's officer of the UGA"). In her letters she described in detail the circumstances of her husband's abduction and stated that he had been abducted by officers of the Khattuni OVD under the command of Mr Y.B. and by servicemen of Russian military forces who had arrived in an APC and taken him away in this vehicle. She pointed out that the servicemen had searched the house and had taken away family possessions; that some time later she had found out that her husband had been transferred from the local department of the FSB to the Khattuni OVD; that officer V.K. had seen Ramzan Babushev in prison in Vedeno; and that, in spite of all this information, the investigative authorities had failed to establish the whereabouts of Ramzan Babushev.

29. On 17 July 2003 the military prosecutor's officer of the UGA forwarded a letter from the applicants' relative concerning the search for Ramzan Babushev to the military prosecutor's office of military unit No. 20116 for examination.

30. On 22 July 2003 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for Ramzan Babushev to the district prosecutor's office for inclusion in criminal case No. 25137.

31. On 22 July 2003 the military prosecutor's officer of the UGA forwarded the first applicant's request to the military prosecutor's office of military unit No. 20116. The letter stated that the latter was to examine the first applicant's version of the involvement of servicemen of the 45th airborne regiment of the Russian military forces in the abduction of her husband.