Постановление Европейского суда по правам человека от 26.11.2009 «Дело Устарханова (ustarkhanova) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF USTARKHANOVA v. RUSSIA
(Application No. 35744/05)
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 Ustarkhanova 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,

Dean Spielmann,

Sverre Erik Jebens, 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. 35744/05) 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 a Russian national, Ms Khava Ustarkhanova on 3 October 2005.

2. The applicant was 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 18 March 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 applicant was born in 1955 and lives in Achkhoy-Martan, Chechnya. She is the mother of Balavdi Ustarkhanov, who was born in 1982.

A. Disappearance of Balavdi Ustarkhanov
1. The applicant's account
6. The events described in the application took place in Zakan-Yurt, in the Achkhoy-Martan district of Chechnya. At the material time the village of Zakan-Yurt was under the full control of the Russian federal forces. Military checkpoints manned by Russian servicemen were located on the roads leading to and from the settlement. The area was under a curfew.

7. At the material time the applicant and her son Balavdi Ustarkhanov lived in Achkhoy-Martan, Chechnya. On 31 December 2002 Balavdi Ustarkhanov went to Zakan-Yurt to celebrate the New Year holiday with his friend, Mr Magomed M. On the same day he had a fight with local residents and received several cuts. He was taken to a local hospital where his cuts were treated and a bandage was placed around his head. Balavdi Ustarkhanov subsequently decided to stay with his friend's family in ZakanYurt for several days.

8. On the night of 6 to 7 January 2003 (in the submitted documents the date was also referred to as the night of 6 January 2003) Balavdi Ustarkhanov stayed at Mr Magomed M.'s house at 72 Shkolnaya Street in Zakan-Yurt. The household consisted of two dwellings; one belonged to Mr Magomed M. and his family, and the other to the family of his uncle, Mr Makhadi M.

9. At about 6 a.m. a large group of armed men in camouflage uniforms broke into the household. Some of them were wearing masks. Those who were not wearing masks were of Slavic appearance. The men neither introduced themselves nor produced any documents. They spoke unaccented Russian and were equipped with portable radio sets. The residents of the household thought that they were Russian military servicemen.

10. The servicemen told everyone that they were looking for a person who was on the authorities' wanted list. They conducted an identity check and took away the passports of Mr Makhadi M. and Mr Magomed M. On completion of the check the servicemen were about to leave when one of them asked Balavdi Ustarkhanov why his head was bandaged. The latter explained that he had arrived at his friend's house for the holidays, that he had been hit with a sharp object and that his cuts had been treated at the local hospital. The serviceman then called someone via his portable radio set and reported that there was a man in the house who had not been registered as a resident and that his head was bandaged. The officer was ordered to take Balavdi Ustarkhanov away.

11. When Balavdi Ustarkhanov's friends asked the servicemen why they were taking him away, the officers said that they were just going to check what Balavdi was doing in the house. The servicemen took Balavdi Ustarkhanov outside without shoes or warm clothing. There they put him in one of the military vehicles parked next to the house: there were a military UAZ car, a minivan and an APC (armoured personnel carrier). The vehicles then drove away in the direction of the local checkpoint, manned by the Russian military forces.

12. The passport of Mr Makhadi M., which had been taken away by the abductors, was found some time later in the vicinity of Zakan-Yurt, on the road to Grozny, across the street from the Russian military checkpoint.

13. According to Mr Magomed M.'s neighbour, Mr I.A., who lived across the street, at about 5 a.m. on 7 January 2003 he and his relatives had seen from their windows two vehicles and a large group of armed servicemen, who spoke unaccented Russian. Some of them wore helmets; they were equipped with portable radio sets. The servicemen were standing next to their house and talking. One of the officers noticed the family car parked in the yard and asked Mr I.A's granddaughter whose car it was. When the girl responded that the car belonged to her uncle, the son of Mr I.A., the servicemen went into the house, dragged Mr I.A.'s son outside and started beating him with truncheons. Mr I.A. started screaming for help and begging the servicemen not to kill his son. Then one of them called someone via his radio set and said that they had apprehended three men, one of whom was not a local resident. Mr I.A. heard someone on the radio instructing the servicemen to leave the locals alone, to take the stranger with the wounded head and to leave the place. According to Mr I.A., he saw from his house a GAZ vehicle and a UAZ vehicle parked next to the house of his neighbour Mr Magomed M. After the servicemen left, Mr I.A. learned from his neighbours that the servicemen had taken away their guest, Balavdi Ustarkhanov. Mr I.A. was not questioned by the authorities about the events.

14. According to a relative of Mr Magomed M., Ms B.M., at about 5 a.m. on 7 January 2003 she had seen a group of armed military servicemen entering the house of her relative Mr Magomed M., which was situated in the same yard. The servicemen were in camouflage uniforms; they spoke unaccented Russian and used portable radio sets. She heard the servicemen explaining to someone by radio that there was a person in the house who had not been registered as a resident and that this man had been wounded in the head. The response received by the servicemen was: "Take him and leave". When the servicemen were leaving the house she heard the noise of military vehicles. Many local residents had gathered in the yard shortly after the abduction. Ms B.M. was not questioned by the authorities about the events.

15. According to the applicant, a number of other witnesses to the abduction refused to provide statements to the Court out of fear for their safety and that of their relatives.

16. In support of her statement, the applicant submitted an account by Ms B.M. dated 31 August 2008 and an account by Mr I.A. dated 31 August 2008.

2. Information submitted by the Government
17. The Government did not challenge most of the facts as presented by the applicant. According to their submission "...the reason for the opening of the criminal case was the complaint of Kh. Ustarkhanova received by the Achkhoy-Martan district department of the interior on 7 January 2003, according to which at about 6 a.m. on the night between 6 and 7 January 2003 unidentified armed men in camouflage uniforms and masks had taken away her son B. Ustarkhanov from a house at 72 Shkolnaya Street in Zakan-Yurt in the Achkhoy-Martan district of Chechnya".

B. The search for Balavdi Ustarkhanov and the official
investigation into his abduction
1. The applicant's account
18. In the morning of 7 January 2003 Mr Magomed M. informed the applicant about the abduction of Balavdi Ustarkhanov. On the same day the applicant went to the Achkhoy-Martan district department of the interior (the Achkhoy-Martan ROVD) and the Achkhoy-Martan district prosecutor's office (the district prosecutor's office) and complained about her son's abduction.

19. On 21 January 2003 the district prosecutor's office instituted an investigation into the abduction of Balavdi Ustarkhanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given number 44011.

20. On 23 January 2003 the district prosecutor's office granted the applicant victim status in the criminal case.

21. On 21 March 2003 the investigators suspended the investigation in the criminal case for failure to establish the identities of the perpetrators.

22. On a number of occasions, that is on 22 March, 13 and 24 June, 17 July and on 25 August 2003, in January, 3 April, 14 May and 7 June 2004 and 16 July 2005 the Chechnya and the district prosecutors' offices informed the applicant that the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators and that operational-search measures aimed at identifying the culprits were under way.

23. On 12 May 2003 the military prosecutor's office of the United Group Alignment (the military prosecutor's office of the UGA) forwarded the applicant's complaint about Balavdi Ustarkhanov's abduction to the military prosecutor's office of military unit No. 20102.

24. On 7 June and 15 August 2003, 22 April, 31 May and 29 December 2004, 10 June and 22 July 2005 the Chechnya prosecutor's office forwarded the applicant's complaints to the district prosecutor's office for examination.

25. On 11 June and 20 August 2003 the military prosecutor's office of military unit No. 20102 informed the applicant that her complaints did not contain any information demonstrating the involvement of Russian military forces in the abduction of Balavdi Ustarkhanov.

26. On 15 July 2003 the Chief Military Prosecutor's office forwarded the applicant's complaint to the Chechnya prosecutor's office.

27. On 2 February 2004 the military prosecutor's office of the UGA informed the applicant that her complaint had been examined and the theory of the involvement of the Russian military forces in the abduction of Balavdi Ustarkhanov had not been confirmed.

28. Upon the applicant's request, on 24 February 2004 the interim Chechnya military commander requested the military commander of the Achkhoy-Martan district (the district military commander) to take measures to establish the whereabouts of Balavdi Ustarkhanov.

29. On 13 April 2004 the Department of the Prosecutor General's office in the Southern Federal Circuit informed the applicant that her request had been forwarded to the Chechnya prosecutor's office.

30. On 20 November 2004 the applicant wrote to the district prosecutor's office. She stated that her son had been abducted by a group of armed men who arrived in an APC. The applicant expressed her version of the events, stating that those who had abducted her son must have belonged to the State power structures. She requested to be provided with information concerning the progress of the investigation and asked for the proceedings to be resumed.

31. On 11 July 2005 the Chechnya military commander requested the district military commander to take measures to establish the whereabouts of Balavdi Ustarkhanov.

32. According to the applicant, the investigators failed to question the neighbours of Mr Magomed M. who lived across the street from the crime scene and who had witnessed Balavdi Ustarkhanov being taken away in military vehicles.

2. Information submitted by the Government
33. The Government submitted that on 21 January 2003 the district prosecutor's office had opened criminal case No. 44011 into the abduction of Balavdi Ustarkhanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The applicant was informed of this on 23 January 2003.

34. On 21 January 2003 the investigators examined the crime scene at 72 Shkolnaya Street in Zakan-Yurt. Nothing was collected from the scene.

35. On 23 January 2003 the applicant was granted victim status in the criminal case and questioned. She stated that she lived in Achkhoy-Martan. On 30 December 2002 her son Balavdi Ustarkhanov had gone to visit his friends, the family of Mr Magomed M., in Zakan-Yurt. On 3 January 2003 she had been informed that on the night between 31 December 2002 and 1 January 2003 her son had been involved in a fight with local teenagers, as a result of which he had sustained a head injury. On the same date, 3 January 2003, the applicant had gone to Zakan-Yurt and taken her son to a hospital, where it was established that he had sustained concussion. The family of Magomed M. was troubled by the fact that Balavdi had received the head injury while he was their guest and they therefore asked him to stay with them until he felt better. The applicant agreed and returned to Achkhoy-Martan, while her son remained at the friends' house. On 7 January 2003 Mr Makadi M. had arrived at her house and told her about the abduction of Balavdi by unidentified armed men in camouflage uniforms and masks, who had failed to explain the reasons for their actions. The investigators questioned the applicant again on 28 February 2003; no information was submitted by the Government concerning the content of the statement given on that date.

36. On 31 January 2003 the investigators questioned Mr Makhadi M., who stated that he lived at 72 Shkolnaya Street in Zakan-Yurt; the household comprised two dwellings in one yard: his house and the house of his nephew, Mr Magomed M. At the end of December 2002 Balavdi Ustarkhanov had arrived at Magomed M.'s house to celebrate the