Постановление Европейского суда по правам человека от 18.02.2010 «Дело Ирисханова и Ирисханов (iriskhanova and iriskhanov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF IRISKHANOVA AND IRISKHANOV v. RUSSIA
(Application No. 35869/05)
JUDGMENT*
(Strasbourg, 18.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 case of Iriskhanova and Iriskhanov v. Russia,

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

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren)*Nielsen, Section Registrar,

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

Having deliberated in private on 28 January 2010,

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

PROCEDURE
1. The case originated in an application (No. 35869/05) 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, Ms Zukhrat Iriskhanova and Mr Umar-Ail Iriskhanov ("the applicants"), on 28 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 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. The President of the Chamber acceded to the Government's request not to make the documents from the criminal investigation file deposited with the Registry in connection with the application publicly accessible (Rule 33 of the Rules of Court).

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 were born in 1957 and 1955 respectively. They live in Samashki, Chechnya. They are the parents of Zurab Iriskhanov, who was born in 1980.

A. Disappearance of Zurab Iriskhanov
1. The applicants' account
6. At the material time Zurab Iriskhanov was a student at the Grozny State Oil Academy and was positively assessed by its administration. His brother Gilani Iriskhanov was in the 10th grade at the local school. The brothers lived with their parents and other relatives at 10 Novaya Street in Samashki village in the Achkhoy-Martan district of Chechnya. At the material time the settlement was under a curfew. Russian military checkpoints were situated on the roads leading to and from the village.

7. In the evening of 19 June 2002 the applicants, their sons Zurab and Gilani Iriskhanov and other relatives were at home. At about 7 p.m. three APCs (armoured personnel carriers) with a group of armed men arrived at the house. Another APC arrived in a neighbouring street and parked close to the applicants' house.

8. The group consisted of approximately thirty to forty men of Slavic appearance. They were armed with machine guns and spoke unaccented Russian. The men neither introduced themselves nor produced any documents. The applicants thought that they were Russian military servicemen.

9. The servicemen surrounded the applicants' house. The first applicant heard one of the officers, whom the others called "Lyekha" ("Леха"), calling somebody on his portable radio and reporting: "These men are not here..." and the response: "Take the other ones as well". When the first applicant asked the officers what was going on, they swore at her and threatened to shoot her.

10. When Zurab and Gilani Iriskhanov heard the APCs they ran outside. The servicemen opened fire on them. As a result, Zurab Iriskhanov was wounded and Gilani Iriskhanov was hit on the head with a gun butt and forced to the ground. The servicemen handcuffed Zurab and Gilani Iriskhanov, put sacks over their heads, kicked them and beat them with gun butts. After that they dragged the brothers to the APCs and put them into different vehicles.

11. Meanwhile some of the servicemen searched the applicants' house. They did not inform the applicants of what they were looking for. It appears that they did not find anything of interest to them. After the search the APCs drove away in the direction of the Samashki military commander's office.

12. The abduction of Zurab and Gilani Iriskhanov was witnessed by a number of the applicants' relatives and neighbours.

13. The description of the events of the evening of 19 June 2002 is based on the following accounts: two accounts by the first applicant, one dated 20 February 2005 and one undated; an account by the applicants' neighbour Ms A.Sh. (undated); an account by the applicants' neighbour Ms A.M. (undated); an account by the applicants' neighbour Ms A.A. (undated); an account by the applicants' neighbour Ms Z.K. dated 21 August 2005; an account by the applicants' neighbour Ms A.M. (undated); two accounts by a number of residents of Samashki (undated); a hand-drawn map of the premises and an article published in the newspaper Pravo-Zashchita ("Право-Защита") in the issue for 5 June 2003.

2. Information submitted by the Government
14. The Government did not challenge most of the facts as presented by the applicants. According to their submission "...the reason for the opening of the criminal case was the complaint by Z. Iriskhanova lodged on 21 June 2002 about the abduction of her sons Zurab Iriskhanov, who was born in 1980, and Gilani Iriskhanov, who was born in 1983, on 19th June 2002.

B. The search for Zurab Iriskhanov and the investigation
1. The applicants' account
15. Since 19 June 2002 the applicants have repeatedly applied in person and in writing to various public bodies. They were supported in their efforts by the SRJI. In their letters to the authorities the applicants referred to their son's abduction and asked for assistance and details of the investigation. Most of 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.

a. The applicants' search for their sons
16. Immediately after the abduction of their sons the applicants, along with other residents of the village, went to the Samashki military commander's office (the military commander's office). It appears that by midnight of 19 June 2002 a crowd of almost 300 local residents gathered there. They demanded the release of Zurab and Gilani Iriskhanov and the reasons why they had been taken away by the servicemen.

17. At about midnight on 19 June 2002 the head of the local department of the interior, officer L.S., came out of the military commander's office building and told the crowd that Zurab and Gilani Iriskhanov would be released at 7 a.m. on the following morning, 20 June 2002.

18. In the morning of 20 June 2002 the applicants and other residents of the village returned to the military commander's office. At the office they were told that Zurab and Gilani Iriskhanov had not been detained on their premises. No explanation was provided concerning the whereabouts of the brothers. The applicants and their relatives decided to wait for the news about Zurab and Gilani Iriskhanov at the entrance to the building. They waited until midnight on 20 June 2002.

19. In the morning of 21 June 2002 the first applicant went to the Achkhoy-Martan district prosecutor's office (the district prosecutor's office) and asked them to come to the military commander's office. At about 10 a.m. the district prosecutor arrived at the military commander's office. Having spent about twenty minutes in the building, the prosecutor came out and told the applicants that about fifteen minutes before, on that very same morning, Zurab and Gilani Iriskhanov had been taken by helicopter to the main Russian military base in Khankala, Chechnya. A number of local residents saw the helicopter taking off from the yard of the military commander's office. After that three APCs drove out of the yard. Employees of the military prosecutor's office told the applicants that these APCs had arrived from the military base in Khankala.

20. When the applicants asked the district prosecutor for assistance in expediting the release of their sons, the latter told them that he could not do anything about it, as when he had arrived at the military commander's office even he had had to surrender his service gun to enter the building.

21. On several occasions from 21 to 23 June 2002 the applicants went to the military base in Khankala. The servicemen there told them that Zurab and Gilani Iriskhanov had been transferred to the ORB-2 (operational search bureau) of the Grozny department of the interior (the Grozny OVD).

22. On 26 June 2002 the applicants found a note in their yard. The letter stated that Gilani Iriskhanov had been detained in the ORB-2 of the Grozny OVD and that the applicants could pick him up from there.

23. In the morning of 27 June 2002 the applicants went to the ORB-2 in Grozny. Gilani Iriskhanov was released in exchange for money. The applicants were told that he had been transferred to the ORB-2 from the military base in Khankala. No information was available about the whereabouts of Zurab Iriskhanov.

24. While in detention Gilani Iriskhanov had been beaten and questioned about the whereabouts of his uncle, a member of illegal armed groups. After his release Gilani Iriskhanov underwent medical treatment in the Malgobek district hospital. Neither the applicants nor Gilani Iriskhanov complained to domestic authorities that he had been ill-treated.

b. The official investigation into the disappearance
25. On 20 June 2002 the applicants complained to the district prosecutor's office that their sons had been abducted. They also informed them of the registration numbers of the APCs which had taken away their sons on 19 June 2002.

26. On 24 June 2002 the district prosecutor's office instituted an investigation into the abduction of Zurab and Gilani Iriskhanov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 63045.

27. On 16 April 2003 the first applicant requested the district prosecutor's office to assist her in the search for Zurab Iriskhanov.

28. On 19 April 2003 the district prosecutor's office informed the first applicant that they had been taking operational search measures to establish the whereabouts of Zurab Iriskhanov and identify the perpetrators of the crime.

29. On 28 April 2003 the Chief Military Prosecutor's office forwarded the first applicant's complaint that her son had been abducted by Russian military servicemen to the military prosecutor's office of the United Group Alignment (the military prosecutor's office of the UGA).

30. On 10 July 2003 the military prosecutor's office of the UGA forwarded the first applicant's complaint to the military prosecutor's office of military unit No. 20102 for examination.

31. On 27 June 2003 the Achkhoy-Martan district military commander informed the first applicant that his office had no information concerning any unlawful actions of the Russian military servicemen on 19 June 2002.

32. On 11 May 2005 the district prosecutor's office informed the first applicant that on an unspecified date the investigation of criminal case No. 63045 had been resumed.

2. Information submitted by the Government
33. According to the documents submitted by the Government, the first applicant complained on 21 June 2002 to the district prosecutor's office that her sons had been abducted. In her letter she stated that her sons had been abducted by Russian servicemen who had arrived in APCs; that they had been detained for some time at the checkpoint located on the Sunzhenskiy mountain ridge; and that thirty-four other residents of the Achkhoy-Martan district had been detained there on 18 and 19 June 2002.

34. The Government submitted that the investigation of the criminal case opened in connection with the abduction of Zurab and Gilani Iriskhanov by "unidentified men" had commenced on 24 June 2002.

35. On 24 June 2002 the investigators conducted a crime scene examination at the applicants' house. Nothing was collected from the scene.

36. On 24 June 2002 the first applicant was granted victim status in the criminal case and questioned. She stated that at about 8 p.m. on 19 June 2002 three APCs with a group of about fifty military servicemen had arrived at her yard. The registration numbers on the vehicles had been covered with mud. The servicemen were armed; they swore a lot and fired gunshots in the air. They grabbed Gilani Iriskhanov, beat him with rifle butts and put him into one of the APCs. Her second son, Zurab, tried to run away from the soldiers through the back yard, but he was caught in the vegetable garden, beaten with rifle butts and placed in another APC. The abduction of her sons took about five minutes; due to the gunshots fired by the abductors, a number of neighbours gathered next to her house and witnessed the abduction. After that the APCs drove to the military commander's office in Samashki. The applicant and her neighbours went there to inquire about the reasons for the arrest of Zurab and Gilani Iriskhanov; they waited at the entrance to the office until 11 p.m. According to the applicant, that evening she managed to speak to the military commander, who promised her that her sons would be released on the following morning. The applicant also found out that her sons' abductors were not from the local military commander's office, that they were stationed there temporarily and were from an unidentified military unit. The applicant and her neighbours spent several days waiting for news about the abducted brothers; while they were waiting they saw a helicopter, which landed in the yard of the military commander's office and took off about ten minutes