Постановление Европейского суда по правам человека от 26.11.2009 «Дело Исмаилов и другие (ismailov and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ISMAILOV AND OTHERS v. RUSSIA
(Application No. 33947/05)
JUDGMENT*
(Strasbourg, 26.XI.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 Ismailov 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,

Khanlar Hajiyev,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 5 November 2009,

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

PROCEDURE
1. The case originated in an application (No. 33947/05) 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 twenty-one 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 their Agent, Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 25 April 2008 the Court 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. 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) Mr Akhmed Ismailov, born in 1949,

2) Mr Alkhazur Ismailov, born in 1985,

3) Mr Shamil (also spelled Shamal) Ismailov, born in 1995,

4) Ms Ruman Sokayeva (also spelled as Rumani or Khumana Sakayeva), born in 1963,

5) Mr Aslambek Merzhoyev (also spelled as Aslambek Merzhuyev), born in 1990,

6) Ms Kheda Merzhoyeva (also spelled as Kheda Merzhuyeva), born in 1981,

7) Ms Zalina Merzhoyeva (also known as Aset Merzhoyeva), born in 1979,

8) Ms Petimat Ismailova, born in 1964,

9) Ms Kheda Idrisova (also known as Ismailova), born in 1981,

10) Mr Ramzan Ismailov, born in 1982,

11) Ms Khazan Ismailova, born in 1984,

12) Ms Larisa Ismailova, born in 1986,

13) Ms Laila Ismailova, born in 1990,

14) Mr Rizvan Ismailov, born in 1992,

15) Ms Tanzila Ismailova, born in 1994,

16) Mr Iles (also spelled as Ilez) Ismailov, born in 1995,

17) Ms Medna Ismailova, born in 1997,

18) Mr Ibragim Ismailov, born in 1999,

19) Ms Makka Ismailova, born in 2001,

20) Ms Markha Ismailova, born in 2001,

21) Ms Liman Ismailova, born in 2003.

6. The applicants are four families of Russian nationals who live in Achkhoy-Martan, Chechnya. All four applicant families are related to each other. The first applicant is the father of Aslambek (also spelled as Aslanbek) Ismailov, who was born in 1979, and Aslan Ismailov, who was born in 1981. The second applicant family consists of applicants 2 - 4. The fourth applicant is the wife of Khizir Ismailov, who was born in 1962; applicants 2 and 3 are his children. The third applicant family consist of applicants 5 - 7, who are the children of Yusi Daydayev, who was born in 1953. The fourth applicant family consists of applicants 8 - 21. The eighth applicant is the wife of Yaragi Ismailov, who was born in 1956; applicants 9 - 21 are his children.

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

A. Disappearance of Aslambek Ismailov, Aslan Ismailov,

Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev
1. The applicants' account
a. Abduction of Aslambek and Aslan Ismailov
8. At the material time the town of Achkhoy-Martan was under the full control of the Russian federal forces. Checkpoints manned by Russian servicemen were located on the roads leading to and from the settlement. The applicant families lived close to each other in two households situated at No. 15a and No. 22 in Orekhova Street, Achkhoy-Martan. The first house was located about 500 metres away from the nearest federal forces checkpoint.

9. On the night of 13 - 14 January 2003 the first applicant, his sons Aslambek and Aslan Ismailov and other relatives were sleeping at home at 15a Orekhova Street. At about 4 a.m. an APC (armoured personnel carrier) with a group of armed men in camouflage uniforms drove through their gate. About ten men got out of the APC and ran into the house. They spoke Russian without accent and were wearing masks and helmets. They neither identified themselves nor produced any documents. The family members thought they were Russian military servicemen.

10. The servicemen searched the house; they neither explained to the residents what they were looking for nor asked for identity documents. They took Aslambek and Aslan Ismailov into the yard, kicked them and threw them into the APC. The brothers were not allowed to put on any warm clothing. The officers ignored their mother's questions concerning the reason for her sons' being taken away.

11. The first applicant's wife ran after her sons into the street. She saw several APCs, a military Ural car and groups of Russian military servicemen standing along the street. The vehicles were parked next to different houses with their engines running. The soldiers, who were waiting next to the vehicles, threatened to kill the locals if the latter went outside. The vehicles with the first applicant's sons drove away to an unknown destination.

b. Abduction of Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev
12. At the material time the second and fourth applicant families lived at 22 Orekhova Street. Their household consisted of three dwellings in one yard. It was situated about 300 metres away from the first applicant's house and a few hundred metres away from the nearest Russian military forces checkpoint.

13. On the night of 13 - 14 January 2003 Yusi Daydayev was visiting the applicants and staying in the first house. Khizir Ismailov and his family were sleeping in the second house; Yaragi Ismailov and his family were in the third one.

14. At about 4 a. m. a group of armed men in camouflage uniforms broke into Yusi Daydayev's house. It appears that the men beat him up, as the applicants heard him screaming.

15. Another group of intruders knocked on the door of the second house. When Khizir Ismailov opened the door, they rushed in, forced everyone to lie down on the floor and took Khizir Ismailov away.

16. The last group of four armed men broke into the third house and took away Yaragi Ismailov. The intruders asked the eighth applicant to bring his passport. While she went to fetch it, the men took her husband outside. The eighth applicant attempted to follow them, but the intruders drove away. None of the men were allowed to put on warm clothing.

17. The intruders who raided the household at 22 Orekhnova Street and took away Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev were wearing masks and helmets. They spoke unaccented Russian and used swear words. They neither introduced themselves nor produced any documents. The applicants thought they were Russian military servicemen.

18. According to the applicants and their neighbours, eight APCs and a military Ural car were parked in Orekhova Street while Aslambek and Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev were being taken away.

19. It appears that after Aslambek and Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev were taken away the military vehicles drove towards Samashki village and stopped in the area of the local wheat processing plant, where Russian troops were stationed.

20. On 23 January 2004 the Achkhoy-Martan district court granted the eighth applicant's claim and declared Yaragi Ismailov a missing person as of 15 January 2003.

21. The description of the circumstances surrounding the abduction of the applicants' relatives is based on the following documents: an account by Mr V.R. given on 3 August 2005; an account by Ms Z.Kh. given on 3 August 2005; an account by the fourth applicant given on 14 August 2005 and an account by the first applicant's wife Ms M.D. given on 14 August 2005.

2. Information submitted by the Government
22. The Government did not challenge most of the facts as presented by the applicants. According to their submission "at about 4 a.m. on 14 January 2003 unidentified armed men in camouflage uniforms and masks, who were driving Ural vehicles and APCs, arrived at Orekhova Street in Achkhoy-Martan, Chechnya, abducted and took away from house No. 15 Aslanbek Ismailov, who was born in 1979, and Aslan Ismailov, who was born in 1981, and from house No. 22 Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev."
23. On 23 January 2004 the Achkhoy-Martan district court declared Yaragi Ismailov a missing person with effect from 15 January 2003.

B. The search for the applicants' relatives
and the investigation
1. The applicants' account
24. Immediately after her relatives were taken away the eighth applicant called the Achkhoy-Martan district department of the interior (the ROVD) and complained that they had been abducted. The officers told her that they could not do anything about it.

25. In the morning of 14 January 2003 the applicants complained to a number of State authorities, including the ROVD, the Achkhoy-Martan district prosecutor's office (the district prosecutor's office), the Achkhoy-Martan district department of the Federal Security Service (the FSB) and the Achkhoy-Martan district military commander's office (the district military commander's office), that their relatives had been abducted.

26. Since 14 January 2003 the applicants have repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the SRJI NGO. In their letters to the authorities the applicants referred to their relatives' 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.

27. In the morning of 14 January 2003 a group of representatives of the district prosecutor's office examined the crime scene and questioned the witnesses.

28. On 17 January 2003 the district prosecutor's office instituted an investigation into the abduction of Aslambek Ismailov, Aslan Ismailov, Yaragi Ismailov, Khizir Ismailov and Yusi Daydayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The criminal case file was given the number 44009.

29. On 17 March 2003 the district prosecutor's office informed the applicants that on an unspecified date the investigation in criminal case No. 44009 had been suspended for failure to establish the identities of the perpetrators.

30. On 21 March 2003 the Chechnya prosecutor's office forwarded the first applicant's complaint about his relatives' abduction to the district prosecutor's office for examination.

31. On 31 March and 24 April 2003 the Chechnya prosecutor's office informed the first applicant that on 23 January 2003 the district prosecutor had instructed the investigators to take a number of additional operational search measures to establish the whereabouts of the abducted men and identify the perpetrators. The text of the letter of 31 March 2003 also stated:

"....the investigation established that the applicant's relatives had been abducted by unidentified servicemen in military vehicles; however, the investigators were unable to establish to which military units these vehicles had belonged."
32. On 30 September 2003 the district prosecutor's office informed the first applicant that they had examined his complaint about ineffectiveness of the investigation in criminal case No. 44009. As a result, the proceedings had been resumed and the investigators had been instructed to verify the supposition that the abducted men were being detained on the premises of the operational search bureau of the Ministry of the Interior (the ORB) in Grozny ("ОРБ").

33. On 24 October 2003 the deputy head of the Achkhoy-Martan district administration wrote to the district prosecutor's office requesting that the investigators find out whether the abducted men were being detained on the premises of the 6th department of the Main Intelligence Service of the Ministry of Defence ("6-й отдел ГРУ") in Grozny.

34. On 31 October 2003 the deputy head of the Achkhoy-Martan district administration informed the first applicant that the authorities' reply to his request of 24 October 2003 stated that the investigation in criminal case No. 44009 had been suspended on 26 June 2003 for failure to establish the identities of the perpetrators; that it had been resumed on 1 October 2003; and that on an unspecified date the investigators had forwarded to the ORB in Grozny a request for assistance in the search for the abducted men.

35. On 1 November 2003 the district prosecutor's office suspended the investigation in criminal case No. 44009 for failure to establish the identities of the perpetrators and informed the applicants.

36. On 14 January 2004 the Chief Military Prosecutor's office forwarded the first applicant's complaint about his relatives' abduction to the military prosecutor's office of the United Group Alignment (the military prosecutor's office of the UGA) for examination.

37. On 7 February and 4 March 2005 the military prosecutor's office of the UGA forwarded the first applicant's complaints about the abduction to the military prosecutor's office of military unit No. 20102 for examination.

38. On 10 and 12 March 2005 the military prosecutors' offices of military unit No. 20102 and the UGA informed the first applicant