Постановление Европейского суда по правам человека от 08.04.2010 «Дело Сериевы (seriyevy) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SERIYEVY v. RUSSIA
(Application No. 20201/05)
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 Seriyevy 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. 20201/05) 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, Mr Abdula (also spelled as Abdulla) Seriyev and Ms Maret Seriyeva ("the applicants"), on 2 June 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 their Agent, Mr G. Matyushkin.

3. On 25 April 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 publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the application (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, who are father and daughter, were born in 1936 and 1975 respectively. They are the husband and the daughter of Bilkis Askhabayeva, who was born in 1942, and the father and sister of Sarali Seriyev, who was born in 1980. At the material time the applicants and their relatives lived in Belgatoy, Chechnya; the applicants currently live in Shali, Chechnya.

A. Events related to the death of Bilkis Askhabayeva
as submitted by the applicants
1. The death of Bilkis Askhabayeva
6. On 26 December 2002 a projectile struck the applicants' house, hit Bilkis Askhabayeva and severely wounded her. She died on the same day from the injuries.

2. The official investigation into the death
of Bilkis Askhabayeva
7. On 27 December 2002 the district prosecutor's office instituted an investigation into the death of Bilkis Askhabayeva under Article 105 § 2 of the Criminal Code (aggravated murder). The case file was given number 59281.

8. On 29 December 2002 the first applicant was granted victim status in the criminal case. On 30 December 2002 the investigative authorities ordered a forensic examination of Bilkis Askhabayeva's body.

9. At some point between January 2003 and November 2004 the investigation of the criminal case was transferred to the military prosecutor's office of military unit No. 20116 (the military prosecutor's office), where the case file was given number 34/35/0191-03.

10. On 25 November 2004 the military prosecutor's office terminated the proceedings in the criminal case. The decision stated that the investigation had established that on 26 December 2002 military unit No. 23132 had participated in a special operation against illegal armed groups. At about 8 p.m. an illuminating shell launched by a cannon 2C3 No. 221 from the position of the military unit, due to a technical malfunction, had hit the house at 41 Kirova Street in Belgatoy, Chechnya. The death of Bilkis Askhabayeva was a result of an accident and therefore no personal responsibility could be established for it. The decision further stated that the criminal investigation in case No. 34/35/0191-03 should be terminated for lack of corpus delicti in the actions of the military servicemen.

11. On 7 December 2004 the military prosecutor's office informed the first applicant about the decision to terminate the criminal proceedings. The applicants did not appeal this decision.

12. On 13 June 2005 the military prosecutor's office took another decision to terminate the proceedings in the criminal case on the grounds of lack of corpus delicti and the amnesty act applied to the military officers. The applicants did not appeal this decision either.

3. Civil proceedings initiated by the applicants
in connection with the death of Bilkis Askhabayeva
13. On 29 March 2005 the first applicant brought proceedings against military unit No. 23132. He demanded compensation for pecuniary and non-pecuniary damage caused by his wife's death.

14. On 13 June 2005 the Shali town court partially granted the claim. The court granted the applicant 168,105 Russian roubles (RUB - about 5,000 euros (EUR)) in respect of pecuniary damage and RUB 10,000 (about EUR 300) in respect of non-pecuniary damage.

15. On an unspecified date the first applicant lodged a request with the town court asking for an extension of the time-limits for appeal of the judgment. The applicant submitted that he had not complied with the time-limits for the appellate procedure because of illness.

16. On 25 August 2005 the Shali town court rejected his request. The court stated that the applicant had failed to provide any evidence, such as a medical certificate, to justify his failure to comply with the statutory time-limits for the appeal.

17. On an unspecified date the first applicant again brought proceedings against military unit No. 23132 demanding compensation for pecuniary and non-pecuniary damage caused by the actions of the military in December 2002.

18. On 23 June 2008 the Shali town court granted the applicant's claim and awarded him a total of RUB 532,000 (about EUR 15,200) in damages, of which RUB 232,000 were granted in respect of pecuniary damage and RUB 300,000 in respect of non-pecuniary damage suffered in connection with the death of Bilkis Askhabayeva. The applicant did not appeal against this decision.

19. On 3 September 2008 the judgement was enforced and the applicant received the amount due.

B. Events related to the disappearance of Sarali Seriyev
1. The applicants' account
a. Abduction of Sarali Seriyev
20. In 2000 as a result of an accident Sarali Seriyev (also spelled as Sar-Ali Serbiyev) lost his right hand, three fingers on the left hand and vision in his right eye. At the material time he was wearing a prosthesis.

21. On 1 June 2004 the applicants, Sarali Seriyev and their relative Imali Seriyev were at home at 41 Kirova Street in Belgatoy, Chechnya. The area was under the full control of the Russian federal forces; military checkpoints were located on the roads leading to and from the village.

22. At about 5 p.m. eight or nine silver-coloured vehicles, including a van and VAZ cars, arrived at the applicants' house. Only one of them had a registration number, which was 516 95.

23. About thirty heavily-armed masked servicemen in uniforms got out of the vehicles. Two or three of them were in helmets. The men neither identified themselves nor produced any documents. They communicated in Russian, although a few spoke Chechen. The applicants thought that the intruders were federal servicemen as the vast majority of them spoke unaccented Russian and just a few spoke Chechen.

24. Upon entering the applicants' yard, the servicemen demanded that the residents of the house hand their weapons to them and state who had spent the night in the house. After that the men forced the second applicant and her brother Imali into different rooms.

25. The intruders sprayed some kind of thick liquid into the room where the second applicant was placed. Two of the officers entered Imali's room, where he was forced to stay, beat him and searched the place.

26. Meanwhile other intruders took Sarali out from the house, forced him into the yard and then into one of the cars in the street. As this was happening the first applicant was trying to explain to the servicemen that Sarali was a disabled person and to show them his and Sarali's identity documents. One of the servicemen took them from the first applicant and told him that they did not need any identity documents.

27. The second applicant and Imali ran after the servicemen in an attempt to prevent them from detaining Sarali, but one of the intruders pushed the applicant and sprayed her with the thick liquid, causing her eyes to burn. They also sprayed Imali in the left eye and he ran to rinse his eye under an outdoor water tap. The first applicant also attempted to prevent the soldiers from taking Sarali away. The applicant threw himself onto one of the cars, but a soldier sprayed a liquid into his eyes. A group of the applicants' neighbours witnessed the abduction of Sarali Seriyev.

28. The first applicant followed the abductors' vehicles by car with an officer from a local department of the interior. They drove up to the local military checkpoints; however, the applicant could not obtain any information there about Sarali's abductors.

29. The description of the circumstances surrounding Sarali Seriyev's abduction is based on an account by the first applicant dated 20 May 2005, on an account by the second applicant, dated 6 February 2006, and on documents submitted with the application.

b. The search for Sarali Seriyev and the official investigation
30. On 1 June 2004 the applicants started their search for Sarali Seriyev. They contacted, both in person and in writing, various official bodies, such as the Shali administration, the Chechen administration, the Shali district military commander's office and the 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 their complaints and the authorities' replies and submitted them to the Court. An official investigation had been opened by the local prosecutor's office. The relevant information is summarised below.

31. Immediately after his son's abduction, in the late afternoon of 1 June 2004, the first applicant invited the investigators of the Shali district prosecutor's office (the district prosecutor's office). They arrived at the house about half an hour after the events. In the yard they took down the statements of the applicants, their relatives and neighbours and drew a map of the house. When the second applicant told the investigators about the spray used to disable her, one of them dismissed her statement as irrelevant. The investigators refused to go inside and examine the house for evidence.

32. On 2 July 2004 the district prosecutor's office instituted an investigation into the abduction of Sarali Seriyev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 36076.

33. On 2 July 2004 the district prosecutor's office granted the first applicant victim status in the criminal case.

34. On 21 July 2004 the Chechnya prosecutor's office informed the first applicant that the investigation in the criminal case was taking operational search measures to establish the whereabouts of Sarali Seriyev and identify the perpetrators of his kidnapping.

35. On 21 July 2004 the Chechnya prosecutor's office forwarded the first applicant's request for assistance in the search for his son to the district prosecutor's office for examination.

36. On 17 September 2004 the head of the criminal search division of the Chechnya department of the interior (the Chechnya MVD) informed the first applicant that his son's abduction was being investigated by the district prosecutor's office.

37. On 20 September 2004 the first applicant requested the military prosecutor office's of the United Group Alignment (the military prosecutor's office of the UGA) to assist in the search for his son.

38. On 15 October 2004 the military prosecutor's office of the UGA informed the first applicant that information concerning the investigation into his son's abduction was available either at the district prosecutor office or the Chechnya prosecutor's office. The letter also stated "...it has been established that federal military servicemen were not involved in your son's abduction".

39. On 1 December 2004 the district prosecutor's office informed the first applicant that his complaint about the abduction had been included into the investigation file.

40. On 2 February 2005 the first applicant addressed the Shali district military commander's office (the district military commander's office) with a request for assistance in the search for his son.

41. On 3 February 2005 the district military commander's office informed the first applicant that they had forwarded information requests concerning Sarali Seriyev's whereabouts to a number of law enforcement agencies.

42. On 5 February 2005 the Chechnya prosecutor's office informed the first applicant that the investigation in the criminal case had been resumed on an unspecified date.

43. On 22 February 2005 the military prosecutor's office of military unit No. 20116 informed the first applicant that they had not received his request.

44. On 8 March 2005 the district military commander's office provided the first applicant with a copy of their information request concerning the search for Sarali Seriyev.

45. On 14 March 2005 the first applicant complained to the district military commander's office about the lack of information concerning the investigation into his son's abduction.

46. On 6 June 2005 the applicants' representatives wrote to the district prosecutor's office. They asked about the measures taken in the criminal case and the progress of the investigation and requested that the first applicant be provided with copies of documents from the investigation file.

47. On 29 June 2005 the Chechnya prosecutor's office informed the applicants'