Постановление Европейского суда по правам человека от 29.10.2009 «Дело Сатабаева (satabayeva) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SATABAYEVA v. RUSSIA
(Application No. 21486/06)
JUDGMENT*
(Strasbourg, 29.X.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 Satabayeva 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,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 8 October 2009,

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

PROCEDURE
1. The case originated in an application (No. 21486/06) 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 a Russian national, Ms Tamara Satabayeva ("the applicant"), on 11 May 2006.

2. The applicant, who had been granted legal aid, was represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government ("the Government") were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new Representative, Mr G. Matyushkin.

3. The applicant alleged that her son had disappeared after being arrested on 23 February 2000. She complained under Articles 2, 5 and 13.

4. By a decision of 11 September 2008 the Court declared the application admissible.

5. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1953. She lives in Urus-Martan, the Chechen Republic.

A. Detention and subsequent disappearance of Yusup Satabayev
7. The applicant's son, Yusup Satabayev, born in 1977, lived with her in Urus-Martan at the address 1 Tolstogo Street. The applicant has two other children.

1. The applicant's account
8. On 29 January 2000, following the outbreak of armed conflict in Chechnya, Yusup Satabayev joined one of the paramilitary groups which fought against the federal army. According to the applicant, he stayed with the paramilitary group for less than a month, during which time there were no armed confrontations, and then left. On 23 February 2000 he arrived in Martan-Chu, in the Urus-Martan district, allegedly to surrender to the authorities in order to benefit from the Amnesty Act. However, on the same day he was arrested at his sister's house by servicemen of the Federal Security Service (FSB). After his arrest he voluntarily disclosed to the authorities the hiding place of his personal machine gun and a cache of weapons belonging to the paramilitaries.

9. Yusup Satabayev was then charged in criminal proceedings with participation in an organised armed gang and illegal dealing in firearms (case file No. 59211). He was remanded in custody during the investigation. On 4 March 2000 he was transferred to the pre-trial detention facility in the village of Chernokozovo in Naurskiy district. On 12 March 2000 the applicant visited this detention facility and, although she was not allowed to see him in person, she received his message confirming receipt of her parcel. The applicant then remained in Chernokozovo and regularly sent parcels to her son, each time receiving confirmation of their receipt.

10. In mid-July 2000 legal counsel hired by the applicant, Ms T., visited Yusup Satabayev in the detention facility and ascertained that he was in good health.

11. On 27 July 2000 the criminal proceedings against Yusup Satabayev were discontinued on the following grounds:

"[Yusup Satabayev] has acknowledged having participated in illegal organised gangs, is aware of being guilty of the [criminal offences he is charged with], he is liable to the maximum sanction of five years of imprisonment..., has voluntarily surrendered [his weapon] and indicated the place where paramilitaries' arms were hidden, and thus should be absolved of criminal liability [for dealing in firearms]; he has not caused any damage to the Armed Forces of the Russian Federation, has no previous criminal record, and has a permanent place of residence, [he is] characterised positively, has voluntarily quit the illegal paramilitary groups, and has therefore ceased to pose a public danger."
12. Yusup Satabayev was notified of this decision on the same day and he signed the last page of it, as required by law. His release was due on the same day but he remained in custody.

13. The applicant was not aware that the criminal proceedings against her son had been discontinued.

14. On 28 July 2000 the applicant's legal counsel, T., discovered that Yusup Satabayev had been transferred to the detention facility of the UrusMartan temporary Department of the Interior of the Chechen Republic (VOVD) (Урус-Мартановский временный отдел внутренних дел Чеченской республики). The applicant went to Urus-Martan and met investigator O., who was in charge of the criminal case against Yusup Satabayev. He explained that Yusup Satabayev would be detained for another ten days and would then be released. He did not inform her that the criminal case had been discontinued.

15. On the same day the applicant sent a parcel to her son in the detention facility and he confirmed its receipt as usual. Over the following days the applicant routinely spent all the time outside the curfew hours in front of the detention facility, waiting for her son's release. She regularly sent parcels and received confirmations of receipt, and sometimes short notes which he wrote on the receipt form. On 1 August 2000 she met the families of other detainees, Kazbek Vakhayev (Vakhayeva and Others v. Russia, application No. 1758/04) and Mr G., who had been arrested earlier that day. From that day onwards they too were regularly in front of the detention facility.

16. On 1 - 2 August 2000 the applicant sent her son a parcel with a pair of shoes, trousers, and a shirt. He sent her back his used clothes, namely a black jumper, socks, winter shoes and a towel.

17. On 4 August 2000 the applicant visited investigator O. and asked him when her son would be released. He informed her that criminal proceedings against him had been discontinued on 27 July 2000. She then asked him on what grounds Yusup Satabayev was being kept in detention, but O. only said that it "had to be done this way".

18. On 9 August 2000 the applicant met Ms Ch., whose son had been arrested that day, in front of the detention facility.

19. On 13 August 2000 the applicant saw the family of Kazbek Vakhayev submitting a parcel which was then returned to them, on the ground that he was no longer in the facility.

20. At about 2 p.m. on the same day the applicant sent a parcel to her son, but the officer did not give her confirmation of its receipt. At her request he went to get the receipt but did not return.

21. On the morning of 14 August 2000 the applicant, together with the families of the other detainees, visited the head of the Urus-Martan VOVD, Colonel Sh., who told them that Kazbek Vakhayev had been released on 11 August 2000, but that Yusup Satabayev, Mr G., and Mr Ch. had been abducted by the "Shamanovs" ("Шамановцы") and taken to the "force groups". According to the applicant, this meant the federal force group "Zapad" under the command of General Shamanov (группировка федеральных сил "Запад" под командованием генерала Шаманова) then located to the south-west of Urus-Martan. Neither the applicant nor other detainees' families were able to obtain any further information on the matter.

2. The Government's account
22. In their submissions prior to the Court's decision of 11 September 2008 on the admissibility of the application, the Government stated that "[o]n 1 August 2000 officers of the Urus-Martan [VOVD] under Decree of the President of the Russian Federation of 2 November 1993 No. 1815 "On Measures for Prevention of Vagrancy and Mendicancy" apprehended and brought to the said department Y.A. Satabayev, [Mr G.], K.L. Vakhayev and [Mr Ch.]. Subsequently they were released however, their whereabouts [are] still unknown".

23. In their submissions after the Court's decision of 11 September 2008 on the admissibility of the application, the Government stated that "[o]n 27 July 2000 the criminal proceedings... against Yu.A. Satabayev were discontinued, the measure of restraint in respect of this person was cancelled. As the relevant decision came to [remand prison] IZ-20/2 on 1 August 2000, Yu.A. Satabayev was immediately released. On 4 August 2000 Yu.A. Satabayev, in the absence of identification documents, was detained for committing an administrative offence pursuant to the Decree of the President of the Russian Federation of 2 November 1993 No. 1815 "On Measures for Prevention of Vagrancy and Mendicancy", his detention in the detention ward of the [Urus-Martan VOVD] lasted for ten days until 14 August 2000, on this date Yu.A. Satabayev was released. The detention of Yu.A. Satabayev was sanctioned by the prosecutor of the Urus-Martan district as valid and justified. The applicants have never brought any complaints against this detention before the national courts."
B. Search for Yusup Satabayev and investigation
1. The applicant's account
24. The applicant instructed her legal counsel, Ms T., to make all official enquiries with the authorities to establish the whereabouts of her son, which Ms T. did.

25. On 19 August 2000 the acting prosecutor of the Urus-Martan district informed the applicant's counsel that "according to the records of the Urus-Martan VOVD, [Yusup Satabayev] was released on 14 August 2000".

26. On 22 August 2000 the family of Kazbek Vakhayev learned from informal contacts that on 13 August 2000 four young Chechen men had been executed in the military camp near the village of Goy-Chu in the Urus-Martan district. Apparently the execution had been carried out by servicemen of the Urus-Martan district military commander's office (Урус-Мартановская районная военная комендатура) and the bodies had been buried in a shallow grave in the grounds of the military camp. When the camp was dismantled for relocation one of the soldiers told the villagers of Goy-Chu about the grave and asked them to re-bury the dead. In the indicated place the villagers exhumed four corpses with numerous traces of violence and some spent cartridges. They did not identify the bodies but they made a video recording. The bodies were re-buried on the same day, 22 August 2000, in the Goyskoye village cemetery. A member of Kazbek Vakhayev's family, Mr U., came to identify the bodies, but he did not recognise Kazbek Vakhayev among them. The applicant submitted to the Court a copy of the video recording.

27. On 7 September 2000 the head of the Urus-Martan VOVD, Colonel Sh., sent a letter to the applicant's counsel, informing her that "Yusup Satabayev, born in 1976, has neither been arrested by the Urus-Martan VOVD nor detained therein".

28. On 14 September 2000 the acting prosecutor of the Urus-Martan district informed the applicant that her complaint had been forwarded to the Urus-Martan VOVD to open an investigation into the disappearance of Yusup Satabayev. She was also informed that Yusup Satabayev had been detained as a vagrant from 4 to 14 August 2000 on the basis of Presidential Decree No. 1815 of 1993 and then released.

29. On 16 September 2000 the applicant and the mothers of the other missing detainees, Kazbek Vakhayev, Mr G. and Mr Ch., applied to the Prosecutor's Office of the Chechen Republic, complaining about the disappearance of their sons from the detention facility and alleging the use of torture against them.

30. On 18 October 2000 the Urus-Martan District Prosecutor's Office opened a criminal investigation into the abduction of four men, namely Yusup Satabayev, Kazbek Vakhayev, Mr G. and Mr Ch. (criminal case file No. 24048). The decision stated, in particular:

"On 1 August 2000 officers of the Urus-Martan [VOVD] apprehended and brought to the [VOVD] [Mr G.], Kazbek Vakhayev, [Mr Ch.] and Yusup Satabayev, pursuant to Decree No. 1815 of the President of the Russian Federation of 2 November 1993 "On Measures for the Prevention of Vagrancy and Mendicancy".

On 14 August 2000 the detainees were released and sent to their places of residence.

However, to date [the detainees] have not returned to their places of residence, they are being searched for by their relatives and their whereabouts are not established."
31. On 25 October 2000 the applicant was informed by the Urus-Martan District Prosecutor's Office that a criminal investigation had been instituted.

32. On 1 November 2000 the applicant was granted victim status in case No. 24048. She claims that she was not informed of this decision.

33. The applicant submitted that her flat in Urus-Martan had been subjected to several search raids. She referred in particular to the events of 22 February 2001, when a group of six or seven armed servicemen had broken into the flat at night, apparently searching for "men". After these raids the applicant decided to leave Chechnya for security reasons.

34. On 23 February 2001 the applicant, with her children, moved to Ingushetiya, where they lived until 2006 in a refugee camp for forced migrants from Chechnya.

35. In March 2001 the applicant was visited in Ingushetiya by Rebart Vakhayeva, the mother of Kazbek Vakhayev. She showed her the video recording of the bodies exhumed on 22 August 2000 and said that one of the dead men was probably Kazbek Vakhayev. The applicant watched the video tape as well and concluded that another exhumed body belonged to Yusup Satabayev. In addition, she recognised the trousers and the shirt which she had sent him in the detention facility on 1 - 2 August 2000. According to the applicant, all four bodies showed signs of a violent death. Rebart Vakhayeva told the applicant that she had already requested the prosecutor's office to re-exhume the bodies and to conduct a forensic examination and identification.

36. During her stay in Ingushetiya the applicant had no contact with the prosecutor's office: she was never informed about the progress of the investigation