Постановление Европейского суда по правам человека от 08.04.2010 «Дело Абаева и другие (abayeva and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ABAYEVA AND OTHERS v. RUSSIA
(Application No. 37542/05)
JUDGMENT*
(Strasbourg, 8.IV.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 Abayeva and Others 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,

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

Having deliberated in private on 18 March 2010,

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

PROCEDURE
1. The case originated in an application (No. 37542/05) 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 four Russian nationals listed below ("the applicants"), on 9 September 2005.

2. The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. 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 17 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 applicants are:

1) Ms Arua Abayeva, born in 1949,

2) Ms Raminat Zhansayeva, born in 1983,

3) Mr Siddyk Abayev, born in 2000 and
4) Ms Malika Shaipova, born in 1947.

The applicants are two distantly related families of Russian nationals who live in the town of Urus-Martan, Chechnya. The first applicant is the mother of Magomed-Ali Abayev, who was born in 1970. The second applicant is his wife and the third applicant is his son. The fourth applicant is the mother of Anvar Shaipov, who was born in 1976.

A. The disappearance of Magomed-Ali Abayev and Anvar Shaipov
and subsequent events
1. The applicants' account
a. Abduction of Magomed-Ali Abayev and Anvar Shaipov
6. At the material time the town of Urus-Martan was under curfew. The first applicant lived there with Magomed-Ali Abayev and other relatives at 12 Lenin Street. Their house was in the town centre and less than a hundred metres from the nearest checkpoint of the Russian military forces. The checkpoint and its staff occupied two buildings; one was the building of the former Siluet clothing factory and the other was a nearby smaller building in Lenin Street.

7. At about 4 p.m. on 13 September 2000 Magomed-Ali Abayev and Anvar Shaipov left the first applicant's house. They were walking to the town centre when two Russian servicemen at the checkpoint stopped them. The servicemen took their passports and one of the soldiers went with them into the factory building. A few minutes later he came out, took Magomed-Ali Abayev and Anvar Shaipov into the building and returned to the checkpoint without them.

8. The applicants' neighbours Mr R.G. and Mr M.A. witnessed Magomed-Ali Abayev and Anvar Shaipov being taken into the factory building and did not see them come out. Several minutes later Mr R.G. asked the servicemen at the checkpoint why Magomed-Ali Abayev and Anvar Shaipov were still in the building; he did not receive any response. Meanwhile Mr M.A. went to the first applicant's house and informed her and the second applicant about the arrest of Magomed-Ali Abayev and Anvar Shaipov at the checkpoint.

9. The first and the second applicants immediately went to the checkpoint and asked the soldiers why Magomed-Ali Abayev and Anvar Shaipov had been arrested. They were told that the two men had been taken into the building for an identity check and that they would be released shortly. The applicants decided to wait for the men at the entrance to the building. While they were waiting, a grey military UAZ vehicle with open windows drove up to the factory building. The soldiers opened the factory gates and let the car into the yard. Shortly after its arrival the car left with its windows closed.

10. After the car drove away the second applicant asked one of the soldiers about Magomed-Ali Abayev and Anvar Shaipov. The soldier spoke with someone on his portable radio set and told her that the two men had been released from the other side of the factory building.

11. At that time the father of Magomed-Ali Abayev, Mr V.A., arrived at the checkpoint and went to the other side of the building to meet his son and Anvar Shaipov. About five minutes later he returned and told the first and the second applicants that Magomed-Ali Abayev and Anvar Shaipov had not left the building. He further informed them that he had met an acquaintance who had been waiting for someone on the other side of the building for two hours and that this man had not seen Magomed-Ali Abayev and Anvar Shaipov leaving the factory building.

12. Then the second applicant went to the fourth applicant's house and told her Anvar Shaipov had been arrested. The second and the fourth applicants immediately went to the town centre, where they met the first applicant. In the late afternoon all of them managed to speak to the deputy head of the Urus-Martan district administration, Mr L.M., who told them that Magomed-Ali Abayev and Anvar Shaipov had been taken to the "West" group of the Russian federal forces (группировка федеральных сил "Запад") stationed in the village of Tangi-Chu in the Urus-Martan district, and that on 14 September 2000 the applicants' relatives would be brought back to Urus-Martan.

13. In support of their statements the applicants submitted the following: two accounts by the first applicant dated 19 March 2004 and 2 June 2005; an account by the second applicant dated 17 March 2004; an account by Mr R.G. dated 29 March 2004; an account by Mr M.A. dated 2 April 2004; an account by the fourth applicant dated 18 March 2004, on an account by Mr M.-E.A. dated 1 June 2005 and a hand-drawn map of the former clothing factory.

b. The subsequent events
14. On the morning of 14 September 2000 the deputy head of the administration, Mr L.M., told the applicants that he had not been able to find out where Magomed-Ali Abayev and Anvar Shaipov had been taken. He suggested that they had been taken either to the main military base of the Russian federal forces in Khankala or to the detention centre of the Russian federal forces in the settlement of Chernokozovo.

15. On 14 September 2000 the two applicant families started a joint search for Magomed-Ali Abayev and Anvar Shaipov. For the first few days the applicants addressed State authorities primarily in person, hoping for an immediate release of their relatives.

16. In the end of September 2000 (in the submitted documents the date was also stated as October 2001) a young Chechen man came to the fourth applicant's house. He did not introduce himself. He told her that he had seen Anvar Shaipov at the headquarters of infantry regiment No. 245 of the West group of the Russian federal forces. Anvar Shaipov had been chopping firewood. He had told the man that he had been arrested by Russian military servicemen and asked him to inform his relatives that he had been detained at the headquarters of infantry regiment No. 245 of the West group. The young man said he had never heard of Magomed-Ali Abayev.

17. Since the end of September 2000 the applicants have had no news of their disappeared relatives.

2. Information submitted by the Government
18. The Government did not challenge most of the facts as presented by the applicants. According to their submission, "...on 15 August 2002 M.A. Shaipova complained to the Urus-Martan district prosecutor's office that between 4 p.m. and 5 p.m. on 13 September 2000 her son Anvar Shaipov was abducted by identified men in civilian clothing next to the former Siluet clothing factory in Lenin Street, Urus-Martan... on 15 December 2000 a similar complaint was received by the Urus-Martan district prosecutor's office from A. Abayeva...".

B. The search for Magomed-Ali Abayev and Anvar Shaipov
and the investigation
1. Information submitted by the applicants
19. From 13 September 2000 onwards the applicants repeatedly applied in person and in writing to various public bodies. They have been supported in their efforts by the Memorial NGO. In their letters to the authorities the applicants referred to their relatives' arrest 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 their letters and the authorities' replies to the Court; these documents are summarised below.

20. On 26 and 29 September 2000 the fourth applicant complained to the Urus-Martan district prosecutor's office (the district prosecutor's office) about her son's abduction. She described the circumstances of his arrest and requested assistance in searching for him. She also stated that her son had been seen in the village of Tangi-Chu, on the premises of infantry regiment No. 245 of the West group of federal forces.

21. On 1 October 2000 the district prosecutor's office forwarded the fourth applicant's complaint to the Urus-Martan district department of the interior (the ROVD) and requested them to open an operational-search file to establish the whereabouts of Anvar Shaipov.

22. On 19 November 2000 the district prosecutor's office informed the first applicant that Magomed-Ali Abayev and Anvar Shaipov had not been detained at the headquarters of infantry regiment No. 245.

23. On 27 November 2000 the fourth applicant wrote to the ROVD. She described the circumstances of her son's arrest and stated that he had been seen in the village of Tangi-Chu, at the headquarters of infantry regiment No. 245 of the West group of Russian federal forces.

24. On 21 August 2001 the Prosecutor General's office informed the first applicant that her request for assistance in the search for her son had been forwarded to the Chechnya prosecutor's office.

25. On 21 September 2001 the district prosecutor's office forwarded the first applicant's complaint to the ROVD.

26. On 1 October 2001 the first applicant complained to the district prosecutor's office. She stated that in spite of all the information she had provided to the authorities they had failed to instigate an investigation into her son's disappearance. The applicant further provided the names and the addresses of the witnesses to the abduction and requested that the authorities instigate an investigation into the abduction of Magomed-Ali Abayev. She requested the authorities to question the servicemen who had been manning the checkpoint on 13 September 2000.

27. On 19 August 2002 the Chechnya department of the interior forwarded the fourth applicant's complaint to the ROVD, seeking a search for Anvar Shaipov to be set up.

28. On 28 August 2002 the district prosecutor's office summoned the first applicant for questioning.

29. On 22 January 2003 the fourth applicant complained to the Urus-Martan district military commander's office (the district military commander's office). She described in detail the circumstances of her son's abduction and requested assistance in the search for Anvar Shaipov.

30. On 6 February 2003 the district prosecutor's office forwarded a letter to the first applicant stating that on the same date they had instituted an investigation into the disappearance of Magomed-Ali Abayev and Anvar Shaipov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file had been given the number 34013. According to the applicants, they were informed about this decision only on 11 March 2004 (see paragraph 51 below).

31. On 18 February 2003 the district prosecutor's office granted the fourth applicant victim status in the criminal case.

32. On 9 March 2004 the first applicant complained to the district prosecutor's office. She stated that Magomed-Ali Abayev and Anvar Shaipov had been arrested by Russian servicemen; that their removal had been witnessed by a number of her neighbours and relatives; and that, in spite of her numerous complaints to the district prosecutor's office, the latter had failed to establish the whereabouts of the disappeared men. The applicant requested the authorities to take the following measures: to initiate an investigation into the abduction of Magomed-Ali Abayev and Anvar Shaipov, to grant her victim status in the criminal proceedings and conduct an effective investigation into the disappearance.

33. On 11 March 2004 the district prosecutor's office informed the first applicant that on 6 February 2003 they had instituted an investigation into the disappearance of Magomed-Ali Abayev and Anvar Shaipov and that on 7 April 2003 the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators.

34. On 12 April 2004 the first applicant requested the investigators to inform her about the progress of the investigation and take meaningful measures to establish the whereabouts of Magomed-Ali Abayev and Anvar Shaipov.

35. On 6 October 2004 the first applicant requested the investigators to provide her with access to the investigation file and to resume the investigation in the criminal case.

36. On 11 October 2004 the investigators informed the first applicant that under Article 42 of the Criminal Procedure Code she was entitled to familiarise herself with the investigation file only upon completion of the investigation. The letter also stated that the investigation had been suspended for failure to establish the identities of the perpetrators.

37. On 12 June 2008 the investigators informed the applicants that on the same date they