Постановление Европейского суда по правам человека от 01.04.2010 «Дело Муцолгова и другие (mutsolgova and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MUTSOLGOVA AND OTHERS v. RUSSIA
(Application No. 2952/06)
JUDGMENT*
(Strasbourg, 1.IV.2010)
____________________________
*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 Mutsolgova 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,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Andre} Wampach, Deputy Section Registrar,

Having deliberated in private on 11 March 2010,

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

PROCEDURE
1. The case originated in an application (No. 2952/06) 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 five Russian nationals, listed in paragraph 5 below ("the applicants"), on 13 January 2006.

2. The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 7 May 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 and to the application of Rule 41 of the Rules of Court. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
5. The applicants are:

1) Ms Zakhidat Mutsolgova, born in 1946;

2) Mr Adam Mutsolgov, born in 1943;

3) Mr Magomed Mutsolgov, born in 1973;

4) Ms Aminat Buzurtanova, born in 1982, and
5) Ms Dzhannat Mutsolgova, born in August 2003.

6. The applicants live in the town of Karabulak, in the Ingushetiya Republic. The first and second applicants are the parents of Mr Bashir Mutsolgov, born in 1975. The third applicant is his brother. The fourth and fifth applicants are Bashir Mutsolgov's wife and daughter.

A. Apprehension and disappearance of Bashir Mutsolgov
1. The applicants' account
7. At the material time the fourth and the fifth applicants together with Bashir Mutsolgov lived at 83 Oskanova Street in the town of Karabulak, Ingushetia. The first and second applicants lived in a house nearby, about 50 metres away.

8. The applicants were not eyewitnesses to Bashir Mutsolgov's abduction and the following account of events is based on the witness statements collected by them after his disappearance and on other documents furnished by them to the Court.

9. At about 3.20 p.m. on 18 December 2003 Bashir Mutsolgov, who was heading from the grocery store to his home, met a neighbour, Kh.Kh. The men were talking next to Bashir Mutsolgov's house when a white VAZ-2121 ("Niva") vehicle with blacked-out windows and a dark blue VAZ-2106 car pulled over. Although the vehicles' registration plates were covered with mud, the Niva had part of its number, "26", visible. Five to eight masked men in camouflage uniforms emerged from the cars. They were armed with AK assault rifles and spoke unaccented Russian. The men ran up to Bashir Mutsolgov and Kh.Kh. and hit the latter in the face so that he fell to the ground. They then forced Bashir Mutsolgov into the white Niva vehicle. According to the statement by V.G., Bashir Mutsolgov was forced to the ground and then put in the Niva vehicle. Kh.Kh. submitted in his statement that, before being forced into the Niva vehicle, Bashir Mutsolgov had been hit with a rifle-butt in the stomach.

10. Bashir Mutsolgov's neighbour, Ya.Kh., heard a noise and looked out of the window of her house. She saw across the street a group of men throw Bashir Mutsolgov into the white Niva vehicle. After that the vehicles with Bashir Mutsolgov drove away in the direction of the Karabulak department of the interior ("the GOVD") and the local road police station ("the GAI station") located about 700 - 900 metres from Bashir Mutsolgov's house.

11. A number of other local residents witnessed the abduction of Bashir Mutsolgov. In particular, prior to arriving at Bashir Mutsolgov's house, the white Niva vehicle had caused a traffic accident with two minivans which both had about 25 - 30 passengers on board. The passengers in the minivans, as well as their drivers, including V.G., and the crowd gathered at the place of the accident witnessed the abduction of Bashir Mutsolgov by a group of armed masked men.

12. One of the local residents, M.B., was driving past the applicants' house when he saw a group of armed men throw a man into a white Niva vehicle. Several minutes later, passing by the GAI station, he informed the on-duty officer Ch. about the incident and told him that two vehicles, a white Niva and a dark blue VAZ with the abducted man, were driving behind him on the same road. Ch. stopped the two cars. A man of Slavic appearance, about 35 - 40 years old, got out of the white Niva vehicle. He spoke unaccented Russian and produced a special permit of the Regional Operational Headquarters of the Federal Security Service ("Региональный Оперативный Штаб Федеральной Службы Безопасности"), prohibiting any search of the permit owner and his vehicle. The man introduced himself as an officer of the FSB and ordered Ch. to let the two vehicles through. Ch. recognised him as the man who had been introduced to him as an FSB officer during an investigation into an explosion in Karabulak, and who had participated in the investigation together with other FSB officers. Having checked the permit, Ch. let the two vehicles pass. From the GAI station the two vehicles took the Baku - Rostov highway and drove in the direction of the town of Magas, Ingushetia.

13. The applicants have had no news of Bashir Mutsolgov since 18 December 2003.

14. The above description of the events of 18 December 2003 is based, among other things, on the applicants' application form dated 13 January 2006; written statements by V.G. and M.B of 22 September 2005; written statements by Ya.Kh. and Kh.Kh. made on 22 September 2005; a written statement by the third applicant made on 14 October 2005; written statements by the first and second applicants dated 6 December 2005, and a hand-drawn map of the premises at Oskanova Street in Karabulak with detailed indications of the objects and persons at the time of the abduction and the direction taken by the abductors.

15. In their statements the first to third applicants referred to the time of Bashir Mustolgov's abduction as approximately 3.30 p.m.; according to the statements by Kh.Kh. and Ya.Kh., it occurred "at about 3 p.m." According to all witness and applicants' statements submitted to the Court, there had been five to eight abductors who had arrived in a white Niva and a dark blue VAZ vehicle; Bashir Mutsolgov had been put into the white Niva vehicle.

2. The Government's account
16. The Government submitted that on 18 December 2003 at about 4.20 p.m., a group of unidentified armed men in camouflage uniforms had forced Bashir Mutsolgov into a white Niva vehicle near house No. 83 at Oskanova Street in Karabulak and had taken him to an unknown destination.

B. The applicants' search for Bashir Mutsolgov
and the investigation
1. The applicants' account
(a) The applicants' search for Bashir Mutsolgov
17. Immediately after the abduction of Bashir Mutsolgov, at about 4 p.m. on 18 December 2003, Ya.Kh. alerted the first, second and third applicants about their relative's abduction. At about 4.20 p.m. the applicants complained about Bashir Mutsolgov's abduction to a number of local law enforcement agencies, including the GOVD. The authorities denied having arrested the applicants' relative.

18. On 24 or 25 December 2003 the third applicant's car was stopped by a grey VAZ-21099 vehicle with blacked-out windows and without number plates. Two men in camouflage uniforms got out of the vehicle, while the driver stayed inside. One of them, aged thirty to thirty-five and of Slavic appearance, approached the third applicant and identified himself as an FSB officer, but refused to provide his name. He carried a Makarov pistol - the usual equipment of members of the Russian "power structures". He told the third applicant that he could provide him with information on the whereabouts of Bashir Mutsolgov in exchange for 300 United States dollars (USD). The officer described in detail the clothing worn by Bashir Mutsolgov on the day of his abduction.

19. Having received the money, the officer told the applicant that his brother had been abducted by a group of officers of the Ingushetia department of the FSB, the Chechnya department of the FSB and the Regional Department of the FSB in the North Caucasus (УФСБ по Республике Ингушетии, Чечне и Региональное Управление по Северному Кавказу). The officer told the applicant that after the abduction Bashir Mutsolgov had been taken to the Ingushetia department of the FSB in Magas and had been detained in a basement. The following day, presumably on 19 December 2003, Bashir Mutsolgov had allegedly been taken by two grey UAZ vehicles ("таблетка") to the Khankala settlement in the Chechen Republic, where the main base of the Russian military forces was located. According to the officer, while in detention Bashir Mutsolgov had been subjected to beatings and torture with a view to making him confess to an unspecified crime he had not committed.

20. On an unspecified date in the end of December 2003 the third applicant met with an acquaintance who had come over with a young armed man in a camouflage uniform, who was carrying a pistol. The latter spoke Ingush and introduced himself as an officer of the FSB headquarters in Magas. In exchange for USD 200 he promised to find out more information about Bashir Mutsolgov. On the following day the applicant met with him again. According to the officer, on 18 December 2003 a man answering to the description of Bashir Mutsolgov had been brought to the FSB headquarters in Magas and taken into the building through a side entrance.

21. In mid-November 2004, when returning from his parents' home, the third applicant was allegedly approached by a young man in a camouflage uniform and a black knitted hat, who called the third applicant by name. He spoke Russian without accent. The man identified himself as an FSB officer and showed the third applicant a dark-red or brown certificate with a laminated picture. The third applicant could not read the man's family name on the certificate because it was dark and the latter was covering it with his fingers. Having showed the certificate the man told the third applicant that he was not going to identify himself because "if (the third applicant) fell into the hands of the FSB he would tell them everything". While the man was talking, the third applicant noticed two grey VAZ vehicles and a white VAZ vehicle on the opposite side of the street. The man offered to give the third applicant the name of one of Bashir Mutsolgov's abductors in exchange for USD 5,000. The third applicant asked him to give the name of the officer who had shown Ch. a special permit at the GAI station, thinking that Ch. would be able to identify that officer during an eventual confrontation. The man agreed and the third applicant gave him USD 2,000 and Bashir Mutsolgov's picture, with the third applicant's mobile number written on its reverse side. The remainder of the amount was to be paid on receipt of the information.

22. On 18 December 2004 the third applicant allegedly received a call on his mobile. A man who did not identify himself told him that the person who had abducted Bashir Mutsolgov and shown the special permit at the GAI station was L.T., an officer of the FSB department in Kostroma. About two months later an unidentified person visited the third applicant at night to obtain the remaining USD 3,000 and allegedly told the third applicant that L.T. was serving in the FSB with the rank of lieutenant-colonel.

23. In their search for Bashir Mutsolgov the applicants also contacted, both in person and in writing, various official bodies, such as the Russian President, the Deputies of the Russian State Duma, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Republic of Ingushetia, the administration of the Republic of Ingushetia and departments of the interior and prosecutors' offices at different levels, describing in detail the circumstances of their relative's abduction and asking for help in establishing his whereabouts. The applicants retained copies of a number of those letters and submitted them to the Court.

(b) The official investigation into Bashir Mutsolgov's disappearance
24. Following the applicants' complaint about Bashir Mutsolgov's abduction, at about 6 p.m. on 18 December 2003 two law-enforcement officers arrived at the applicants' house. They introduced themselves as the head of the local department of the fight against organised crime (the RUBOP) and the district police officer. The officers interviewed an unspecified number of witnesses to the abduction of Bashir Mutsolgov.

25. According to the third applicant, on the same day he went to the Karabulak town prosecutor's office ("the town prosecutor's office") to submit a written complaint about his brother's abduction. He was received by investigator O., who refused to accept his complaint and first called, in the third applicant's presence, the FSB department in Ingushetiya and asked them whether their officials had carried out special operations in Karabulak. O. then allegedly asked his interlocutor on the phone whether he could accept the third applicant's complaint about the abduction of his brother. O. then told the third applicant that, according his interlocutor, the FSB department in Ingushetiya had not carried out any special operations or arrests in Karabulak and that he had been allowed to accept the third applicant's complaint.

26. On 19 December 2003 the prosecutor's office of the Ingushetiya Republic