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

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF UMALATOV AND OTHERS v. RUSSIA
(Application No. 8345/05)
JUDGMENT*
(Strasbourg, 8.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 Umalatov 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 {Soren} Nielsen, Section Registrar,

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. 8345/05) 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 three Russian nationals, Mr Imran Umalatov, Mrs Roza Khamizayeva and Mr Sharan Durdiyev ("the applicants"), on 17 February 2005.

2. The applicants, who were granted legal aid, were represented by lawyers of the International Protection Centre, a Russian NGO. 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 7 January 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 were born in 1940, 1969 and 1943 respectively. They live in the Chechen Republic (Chechnya).

A. Disappearance of Usman Umalatov and Shamad Durdiyev
1. The applicants' account
6. The first applicant is the father of Usman Umalatov, born in 1969. The second applicant is his wife. The third applicant is the father of Shamad Durdiyev, born in 1976.

7. The applicants stated that on 15 October 2002 at 7.00 a.m. a joint operation of the Federal Security Service (FSB), the Ministry of the Interior and the military took place in the village of Nagornoye situated in the Grozny district of Chechnya.

8. Usman Umalatov was apprehended in his home in Nagornoye in the presence of his next-of-kin, including the second applicant, and brought to the FSB office for the Nadterechny district in the village of Znamenskoye.

9. Shamad Durdiyev lived in Beno-Yurt and worked as a driver for the Grozny Town Prosecutor's Office. On 15 October 2002 at about 6 a.m. he left his home village and went towards Grozny in his service car, a black "Volga". On the same day he was apprehended during the security operation and brought to the FSB office in Znamenskoye.

10. Two or three days later nine men apprehended on that day in Nagornoye were released, but Usman Umalatov and Shamad Durdiyev were not among them.

11. The applicants have had no news of Usman Umalatov and Shamad Durdiyev since 15 October 2002.

12. In support of their allegations, the applicants submitted the statements of the first and second applicants, as well as an affidavit signed by eight men who had been detained on 15 October 2002 together with Usman Umalatov.

2. The Government's account
13. In their observations the Government confirmed that both men had been detained on 15 October 2002 in Nagornoye in the course of a special security operation. Later on the same day they were transferred to the FSB office in Znamenskoye and then released after their identities had been ascertained.

B. The search for Usman Umalatov and Shamad Durdiyev
and the investigation
14. Since 15 October 2002 the applicants have repeatedly applied in person and in writing to various public bodies. In their letters to the authorities the applicants and their family members referred to their relatives' detention and asked for assistance and details of the investigation. These enquiries have mostly 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.

1. Official investigation into Usman
Umalatov's disappearance
15. The first applicant submitted that several days after his son's disappearance the head of the FSB office for the Nadterechny district had told him in a personal conversation that Usman Umalatov and Shamad Durdiyev had been released on the day of their detention. However, they have not been found since.

16. On 24 October 2002 an investigator of the prosecutor's office of the Urus-Martan district of Chechnya opened criminal proceedings (case file No. 65049) in response to the first applicant's complaint about his son's abduction. The investigator noted that the applicant's son had been taken into custody by unknown masked persons and taken away to an unknown destination. It appears that at some later point the investigation was transferred to the Nadterechny district prosecutor's office ("the district prosecutor's office").

17. On 25 October 2002 the first applicant was granted victim status in the proceedings.

18. On 29 January 2003 the investigator of the district prosecutor's office adjourned the criminal proceedings given the failure to identify the persons against whom the charges must be brought (Article 208, part 1, item 1 of the Code of Criminal Procedure). The investigator's decision instructed the Nadterechny district department of the Ministry of the Interior (ROVD) to search for Usman Umalatov and the persons responsible for his disappearance. No new information was communicated to the first applicant following his subsequent complaints and requests to the prosecutor's office.

19. On 2 March 2004 the first applicant complained of unlawful inaction of the investigation authorities to the Nadterechny district court ("the district court") under Article 125 of the Code of Criminal Procedure.

20. On 29 March 2004 the district court dismissed the first applicant's complaint as he had failed to appear before the court. The summons to appear before the court reached the local post office at his place of residence only on 31 March 2004.

21. On 6 April 2004 the first applicant lodged with the district court a new complaint under Article 125 of the Code of Criminal Procedure concerning the lack of an effective investigation into his son's disappearance. This complaint was dismissed on 13 April 2004 as no breach of procedural requirements had been found.

22. The first applicant allegedly received this judgment on 12 May 2004 and requested the president of the court to restore the ten-day time-limit for lodging a cassation appeal against the judgment. The applicant's request was dismissed by the district court on 28 June 2004. Following the applicant's appeal, the Supreme Court of the Chechen Republic upheld the latter decision by the district court.

2. Official investigation into Shamad
Durdiyev's disappearance
23. On an unspecified date, the district prosecutor's office opened criminal proceedings (case file No. 65048) on account of Shamad Durdiyev's abduction.

24. On 25 October 2002 the third applicant was granted victim status in those proceedings. The investigator's decision indicated that on 15 October 2002 around 6 a.m. Shamad Durdiyev had gone in his own car in the direction of Grozny where he worked as a driver for the Grozny town prosecutor. On his way he was arrested in the village of Nagornoye by the FSB officers and brought to the FSB office for the Nadterechny district in the village of Znamenskoye. According to statements by unnamed FSB officials quoted by the investigator, Shamad Durdiyev was released on the same date.

25. The third applicant alleged that Shamad Durdiyev's car remained at the office of the FSB in Znamenskoye for several days and was later transferred to the Grozny town prosecutor's office. He also claimed that the FSB had transferred to the Grozny town prosecutor's office a request to dismiss Shamad Durdiyev from service, allegedly written by his son on 14 October 2002. It does not appear that any investigative steps were taken in this direction.

26. At some point the military prosecutor's office also conducted an investigation into Shamad Durdiyev's abduction. On 20 December 2002 the military prosecutor of army unit No. 20111 decided to return the relevant criminal file (No. 34/34/0117-02d) to the district prosecutor's office for further investigation. The military prosecutor found it established that Shamad Durdiyev had been apprehended on 15 October 2002 by the authorities during a joint operation by the district military commander's office, ROVD and FSB, brought to the FSB office in Znamenskoye for questioning and had left the said office in an unknown direction. The military prosecutor concluded that it had not been established that military personnel were responsible for his disappearance.

27. On 24 January 2003 the district prosecutor's office adjourned the criminal proceedings (case file No. 65048) given the failure to identify the persons against whom the charges must be brought. The investigator's decision instructed the Nadterechny ROVD to search for Shamad Durdiyev and for the persons responsible for his disappearance.

28. The third applicant's subsequent complaints and requests to the Chechen prosecutor's office and to the head of the Presidential Administration of Chechnya in connection with his son's disappearance remained without effect.

29. On 29 July 2004 the third applicant complained of unlawful inaction of the investigation authorities before the president of the district court under Article 125 of the Code of Criminal Procedure. On 23 August 2004 the district court dismissed his complaint and found the decision of 24 January 2004 to adjourn the proceedings to be well founded. The applicant did not appeal.

3. Additional information submitted by the Government
30. With reference to the information provided by the Prosecutor General's Office, the Government submitted that the investigations of the abduction of Usman Umalatov and Shamad Durdiyev had failed to solve the crimes. In their observations they also submitted additional information about the progress of the investigation and some copies of documents from the files (11 pages). They did not submit copies of any of the witness statements to which they referred.

31. The documents and the observations confirm that both men were detained on 15 October 2002 during a large security operation. The Government submitted copies of three documents relevant to this operation. The order by the military commander of the Nadterechny district of 14 October 2002 gave instructions to carry out a joint operation involving about 250 servicemen of the Ministry of the Interior, FSB and the military commander's office in order to find members of an illegal armed group who had killed three servicemen of the military commander's office on 1 October 2002, and who had apparently been hiding in Nagornoye. As regards the possibility of detaining suspect individuals, the order contained the following indications: "upon identification of persons wanted upon suspicion of involvement in crimes committed by illegal armed groups, they should be detained, brought to the filtration point and later delivered to the ROVD for the carrying out of investigative actions; if active resistance is met, measures should be taken to neutralise or destroy them".

32. The order of the Ministry of the Interior for the district, also dated 14 October 2002, contained similar provisions. Finally, on 15 October 2002 the head of the detachments of the Ministry of the Interior based in the district produced a report on the results of the operation. It listed thirteen men who had been detained in Nagornoye on that day on suspicion of being involved with illegal armed groups, and who had been questioned, fingerprinted and delivered to the ROVD. Shamad Durdiyev and Usman Umalatov were listed among the thirteen men.

33. As to Usman Umalatov, the Government submitted that the investigation commenced on 24 October 2002 by the Urus-Martan district prosecutor's office under Article 126 part 2 of the Criminal Code - aggravated kidnapping. The investigation had been triggered by the first applicant's complaint to the Nadterechny district prosecutor's office of 21 October 2002 about the arrest of his son early in the morning on 15 October 2002 by the local FSB.

34. On 25 October 2002 the authorities questioned the first applicant and granted him the status of a victim in the proceedings. He had stated that his son had been detained at the district department of the FSB, but that the head of the department, Mr Kh.M., had assured him that he had personally let his son out of the building. The first applicant also mentioned that Mr A.K., who had been detained with his son, had returned home on 17 October 2002.

35. On 4 November 2002 the investigator examined the registration log of the Nadterechny ROVD and noted that Usman Umalatov had been delivered there at 10 a.m. on 15 October 2002 for an identity check and that at the same time he had been transferred to the district department of the FSB for further investigation.

36. It does not appear that any additional steps were taken in the investigation into Usman Umalatov's disappearance after this point.

37. As to Shamad Durdiyev, criminal investigation file No. 65048 was opened on 24 October 2002 in response to the third applicant's letter of 21 October 2002. Within the following days the third applicant was questioned and granted the status of a victim in the criminal case. On 30 October 2002 the investigation was forwarded to the military prosecutor of Chechnya and on 15 November 2002 the military prosecutor of military unit No. 20111 took charge of the proceedings.

38. According to the Government, in November 2002 the military