Постановление Европейского суда по правам человека от 11.02.2010 «Дело Дубаев и Берснукаева (dubayev and bersnukayeva) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF DUBAYEV AND BERSNUKAYEVA v. RUSSIA
(Applications Nos. 30613/05 and 30615/05)
JUDGMENT*
(Strasbourg, 11.II.2010)
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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 cases of Dubayev and Bersnukayeva 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,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 21 January 2010,

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

PROCEDURE
1. The case originated in two applications (Nos. 30613/05 and 30615/05) 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 two Russian nationals listed below ("the applicants"), on 3 August 2005.

2. The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government ("the Government") were represented by Mrs V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their new representative, Mr G. Matyushkin.

3. On 11 March 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the applications and give notice of the applications to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the applications at the same time as their admissibility. The President of the Chamber acceded to the Government's request not to make publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the applications (Rule 33 of the Rules of Court).

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

THE FACTS
I. The circumstances of the case
5. The applicant in application No. 30613/05 is Mr Rizvan Dubayev, born in 1955 (the first applicant). The applicant in application No. 30615/05 is Ms Saudat Bersnukayeva, born in 1949 (the second applicant). Both applicants live in the town of Urus-Martan, Chechnya.

6. The first applicant is the father of Islam Dubayev, born in 1982. The second applicant is the mother of Roman (also known as Zelimkhan) Bersnukayev (also spelled Bersunkayev), born in 1983.

A. Disappearance of Islam Dubayev and Roman Bersnukayev
1. The applicants' account
7. The applicants were not eye-witnesses to the abduction and the following account is based on the witness statements collected by them after the disappearance of their relatives.

8. In the autumn of 1999 Russian federal troops launched an antiterrorist operation in Chechnya. In December 1999 Islam Dubayev joined an illegal armed group ("the armed group") which was fighting the federal troops in the mountains of the Urus-Martan district, in the vicinity of the village of Martan-Chu. In December 1999 the Russian federal forces took control of the valley of the Urus-Martan district.

9. It appears that around the same time Roman Bersnukayev also joined an armed group.

10. On 13 March 2000 three members of an armed group, Mr A., Mr M. and Mr P., left the mountains to go to the village of Martan-Chu. It appears that on the outskirts of the settlement they were stopped at the Russian military checkpoint by military servicemen from infantry regiment No. 245 of the Russian Federal Forces Group "West" (245 мотострелковый полк группировки федеральных сил "Запад"). The servicemen were assisted by the local militia. The three men were detained and questioned. The military servicemen told them that the State Duma of the Russian Federation had announced an amnesty for those who gave up fighting with armed groups in Chechnya. They assured them that the amnesty would apply to any fighter as long as he had not been involved in serious crimes, such as hostage taking or kidnapping and he voluntarily surrendered to the authorities. The three men then confessed to being members of an armed group. They told the Russian servicemen that there were more young men in the mountains who would be willing to surrender under the above conditions and explained where those men could be found.

11. It appears that after the questioning Mr A., Mr M. and Mr P. were taken away in an unknown direction and their whereabouts have not been established since.

12. On 14 March 2000 two members of the Martan-Chu militia went into the mountains and found a group of young men. They told them about the amnesty. They also told the group that if by 3 p.m. on 14 March 2000 they did not come down from the mountains the area would be subjected to artillery and air strikes.

13. Ten young men decided to surrender. They left the mountains and went to the checkpoint of infantry regiment No. 245. Among them were Islam Dubayev and Roman Bersnukayev.

14. It appears that on the outskirts of Martan-Chu the men who had surrendered were given food. About twenty minutes later the servicemen bound their hands, put them into a Ural truck and took them to the headquarters of the Russian Federal Forces Group "West".

15. On 17 March 2000 the military commander of the Urus-Martan district, General-Major N., and the head of the Federal Security Service (FSB) department of the Urus-Martan district, Major F., co-signed two documents, issued to Islam Dubayev and Roman Bersnukayev. Each document stated that the person in question had voluntarily surrendered his weapons to the State authorities on 14 March 2000 and that he undertook to remain at his place of residence for the follow-up to the amnesty procedure. The document issued to Islam Dubayev mentioned a Kalashnikov machine-gun without serial number, and the document issued to Roman Bersnukayev mentioned a Kalashnikov machine-gun with a serial number and ammunition. Both papers were countersigned by the applicants' sons.

16. Also on 17 March 2000 the investigator of the Urus-Martan FSB department issued two decisions certifying the intention of the authorities not to institute criminal proceedings against Islam Dubayev and Roman Bersnukayev, in application of the amnesty act. On the same day both decisions were approved by the acting district prosecutor and countersigned by the two men.

17. The above description of the events relating to the detention is based on the accounts provided by the applicants to their representatives.

18. The applicants have had no news of Islam Dubayev and Roman Bersnukayev since 17 March 2000.

2. Information submitted by the Government
19. The Government stressed that the applicants had not witnessed the detention of their sons. According to their submissions, Islam Dubayev and Roman Bersnukayev had renounced their involvement in the armed groups and on 17 March 2000 were released in application of the amnesty act. There were no grounds to suspect that they had ever been arrested or detained by State authorities.

B. The search for Islam Dubayev and Roman Bersnukayev
and the investigation
1. The applicants' account
20. Since 14 March 2000 the applicants have repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the NGO Memorial. In their letters to the authorities the applicants referred to their sons' detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given stating that the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted some of the letters and the authorities' replies to the Court, which are summarised below.

(a) Search for Islam Dubayev
21. On the evening of 15 March 2000 a man named "Lema" visited the first applicant's house in Urus-Martan and told him that Islam Dubayev had surrendered to the State authorities. As proof he showed photographs found in the pockets of the applicant's son. The middleman told the first applicant that if he came to the village of Gekhi-Chu he would introduce him to the man who had detained his son. The first applicant got the impression that his son might be released against payment of money.

22. On the morning of 16 March 2000 the first applicant went to the village of Gekhi-Chu. Military servicemen, under the command of an officer named Sergei, also known as "Lame Sergei" (Khromoy Sergei), arrived on an APC (armoured personnel carrier) at about 11 a.m. Sergei read the names of four fighters who had surrendered and been handed over to the Urus-Martan district department of the FSB. They included Islam Dubayev.

23. It appears that on 16 March 2000 the first applicant went to the district department of the FSB to obtain information about his son, but to no avail.

24. It appears that within the next few days the first applicant went to the temporary district department of the interior of the Urus-Martan district (the Urus-Martan VOVD) and to the prosecutor's office of the Urus-Martan district (the district prosecutor's office). The interim district prosecutor told the first applicant that Islam Dubayev had been taken to the district department of the FSB and that on 17 March 2000 the amnesty had been applied to him and he had been released.

25. On 17 March 2000 the first applicant, his relatives and the relatives of the other men who had surrendered allegedly spent the entire day waiting for their sons at the entrance to the building of the district military commander's office, where the district department of the FSB was also located at the time.

26. Then on a number of occasions the first applicant tried to visit officials at the district department of the FSB, but they refused to talk to him. At some point the first applicant asked officer V. from another department of the FSB to obtain information about his son at the district department of the FSB. The officer told him that his son and three other men had been pardoned by the State authorities and that they had been released from detention in the area of the local town hospital. The first applicant and his relatives searched the area but could not find any traces of Islam Dubayev.

27. After that the first applicant went to the district department of the FSB and managed to speak to one of the officers, Mr K., and the deputy head of the department, named Sergey. They advised the first applicant to search for his son in the Urus-Martan district hospital.

28. The first applicant went to the hospital, where he was told that none of the fighters who had surrendered had been brought there.

29. In the second half of April 2000 the first applicant met the parents of Roman Bersnukayev, who had just found out that their son had surrendered to the State authorities in March 2000. The first applicant and the second applicant agreed to conduct the search for their sons together.

30. On 11 May 2000 the first applicant met with the head of the district department of the FSB, major F., who provided the first applicant with copies of the documents issued on 17 March 2000 stating the intention of the authorities not to institute criminal proceedings against Islam Dubayev and certifying that Islam Dubayev had voluntarily surrendered his weapons. The officer suggested to the first applicant that if his son had not returned home then "he must have gone into the mountains again".

(b) Search for Roman Bersnukayev
31. At the beginning of April 2000 a resident of Urus-Martan, Mr M., came to the second applicant's house and told her husband that Roman Bersnukayev had been detained by the Russian federal forces on his way from the mountains to Martan-Chu. Mr M. had a list of persons detained by the Russian military, including the name of the second applicant's son.

32. Some time later the second applicant found out that one of the detained persons, Mr A., had been released. Mr A. told her that at the beginning of March 2000 Roman Bersnukayev had left the Chechen fighters and was on his way home when he ran into a group of young men in the mountains of Martan-Chu.

33. According to Mr A., Roman Bersnukayev had joined the group and had been with them for about two weeks when in March 2000 two members of the Martan-Chu militia found the group and told them about the amnesty. Roman Bersnukayev had not had any weapons and the two men had told him that the amnesty would apply to him only if he had weapons to surrender. Then Roman Bersnukayev had got hold of a machine gun. After that the young men had left the mountains and surrendered to the Russian military forces at the checkpoint in Martan-Chu.

34. Mr A. told the second applicant that as her son had dark skin, the Russian military servicemen had taken him for an Arab mercenary and had wanted to execute him.

35. In April 2000 the second applicant met the parents of Islam Dubayev at the entrance to the district military commander's office. The first applicant told the second applicant that their sons had been in the same group of young men who had surrendered in March 2000.

36. Since then the first and second applicants have been conducting the search for their sons together.

37. On 11 May 2000 the second applicant received from the district department of the FSB a copy of the order, dated 17 March 2000, concerning the authorities' intention not to institute criminal proceedings against Roman Bersnukayev.

38. On an unspecified date the second applicant received a copy of the statement dated 17 March 2000, issued by the district department of the FSB, certifying that Roman Bersnukayev had voluntarily surrendered his weapons.

(c) Investigation into the disappearance
39. On 3 May 2000 the Chechnya prosecutor's office forwarded the first applicant's complaint concerning his son's disappearance to the Chechnya department of the interior for a search to be organised.

40. On 8 May 2000 the first applicant's wife and the second applicant complained to the district military commander's office about the disappearance of Islam Dubayev and Roman Bersnukayev. They stated that according to information