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

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MUDAYEVY v. RUSSIA
(Application No. 33105/05)
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 Mudayevy 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,

Giorgio Malinverni,

George Nicolaou, 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. 33105/05) 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 Lomali (also spelled as Lom-Ali) Mudayev and Ms Malkan Mudayeva ("the applicants"), on 25 July 2005.

2. The applicants, who were granted legal aid, were represented by lawyers of the Centre of Assistance to International Protection, an NGO based in Moscow. The Russian Government ("the Government") were represented by the First Deputy Minister of Justice Mr A. Savenkov and subsequently by the Representative of the Russian Federation at the European Court of Human Rights Mr G. Matyushkin.

3. On 1 April 2008 the Court decided 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. On 2 April 2008 it decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

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 1950 and 1948 respectively. They live in Raduzhnoye, in the Grozny district, Chechnya. The applicants are the father and aunt of Aslan Mudayev, who was born in 1985, and Mokhmad Mudayev, who was born in 1982. The first applicant had a third son, Mr Akhmad Mudayev, who was killed in July 2003.

A. Disappearance of Aslan and Mokhmad Mudayev
1. The applicants' account
a. The abduction of Aslan and Mokhmad Mudayev
6. On 29 January 2003 Russian military servicemen conducted a special operation in the village of Raduzhnoye in the Grozny district of Chechnya. More than twenty persons were apprehended as a result of the operation, including Aslan and Mokhmad Mudayev and another of the applicants' relatives, Mr Islam A. At the material time the village was under the full control of the federal forces.

7. At about 8 a.m. on 29 January 2003 the first applicant and his sons Aslan and Mokhmad Mudayev and other relatives, including Mr Israil M. and Mr Islam A., were in their family home situated in Raduzhnoye. The first applicant heard noise coming from the street and looked out of the window. He saw a group of armed men in camouflage uniforms and masks running into his yard. The men entered the house and ordered everyone to lie face down on the floor. They neither introduced themselves nor produced any documents.

8. The intruders ordered the first applicant to hand over his family members' passports and the family photographs. Upon receiving the documents and the photographs, the men took Aslan Mudayev, Mokhmad Mudayev and the first applicant's nephew Mr Islam A. outside.

9. The first applicant attempted to follow his relatives, but the armed men in the yard threatened to kill him. Meanwhile, the applicant's sons and nephew were put in a grey UAZ car ("таблетка").

10. Sometime later the first applicant managed to go outside and saw a convoy of ten to twelve vehicles, including a grey UAZ car, two or three khaki coloured UAZ-469 cars and an APC (armoured personnel carrier) driving away in the direction of Grozny.

11. On the following day of 30 January 2003 all persons detained during the special operation, except for Aslan and Mokhmad Mudayev, were released.

b. The subsequent events
12. Immediately after the apprehension of Aslan and Mokhmad Mudayev the applicants and their relatives started searching for them.

13. The applicants' relative, Mr Israil M., who was at the first applicant's house during the abduction, immediately followed the convoy of military vehicles in his VAZ car with two female relatives. On the way to Grozny the abductors' vehicles split into two groups. One of them, comprised of the APC and several UAZ cars, drove in the direction of the nearby village of Znamenskoye in the Nadterechniy district, while the other proceeded in the direction of Grozny.

14. When the group arrived at Znamenskoye, the vehicles drove to the building of the Nadterechniy district department of the Federal Security Service ("the Nadterechniy district department of the FSB") and the Nadterechniy district department of the interior ("the Nadterechniy ROVD"). Some of the vehicles drove onto the agencies' premises.

15. Mr Israil M. and relatives of other men apprehended during the operation in Raduzhnoye decided to wait at the entrance to the FSB building. Several hours later Mr Israil M. managed to talk to the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. (also known as Mairbek Kh.; in the documents submitted he was also referred to as Mr M.Kh.) The latter told him that he would not release his relatives until two prosecution officials who had been abducted several days ago had been returned. He told Mr Israil M. that he knew about the involvement of the first applicant's other son, Akhmad Mudayev, in the abduction of the two officials. The officer threatened that if within the next two days Mr Israil M. did not return the two prosecutors or bring Akhmad Mudayev to their office, he would hand over Mr Israil's apprehended relatives to military servicemen in Khankala, the main base of the Russian federal forces in Chechnya.

16. Subsequently the applicants and their relatives spoke with Akhmad Mudayev, who told them that he had not participated in the prosecutors' abduction and refused to go to the district department of the FSB.

17. Within the next five or six months Mr Israil M. had regular meetings with Mr Mayrbek Kh. The latter insisted on his demands.

18. On 3 July 2003 the first applicant's elder son Akhmad Mudayev was killed in a skirmish. After that Mr Mayrbek Kh. told the first applicant that at some point Russian military forces had taken Aslan and Mokhmad Mudayev from his department under false identities and that he did not have any information concerning the brothers' whereabouts.

c. Information obtained by the applicants about the detention of Aslan and Mokhmad Mudayev
19. The first applicant's nephew, Mr Islam A., who had been apprehended with Aslan and Mokhmad Mudayev, was released on 30 January 2003. Mr Islam A. told the applicants that he had been put in one cell with Aslan and Mokhmad Mudayev. In the evening of 29 January 2003 he had been questioned by Mr Mayrbek Kh., the head of the Nadterechniy district department of the FSB.

20. In February 2003 Mr Mayrbek Kh. arrived at the mosque of the Raduzhnoye village. He told a number of local residents gathered there that Aslan and Mokhmad Mudayev had been detained in the FSB building. One of the local residents, Mr Arsanuka M., asked him whether any criminal charges had been brought against the brothers. In response the officer told him that he would release Aslan and Mokhmad Mudayev only if their elder brother Akhmad surrendered to the authorities.

21. Mr Aslan A., who had been detained for some time with the Mudayev brothers in the FSB building and released, told the applicants that during the detention, Aslan and Mokhmad Mudayev had been beaten and questioned separately from each other.

22. On 10 May 2003 (in the documents submitted the date 12 May 2003 was also given) an explosion occurred in the building of the Nadterechniy district department of the FSB and partially destroyed it. In the evening of 10 May 2003 Aslan and Mokhmad Mudayev were taken from the building to an unknown destination. There has been no news about the brothers ever since.

23. In support of their statements the applicants submitted: an account by the first applicant (undated); an account by Mr Israil M. dated 12 November 2003; an account by Mr Islam A. dated 14 November 2003; an account by Mr Khavashi K. (undated); an account by Mr Arsanuka M. (undated); an account by Mr Amin K. (undated) and copies of documents received from the authorities.

2. Information submitted by the Government
24. The Government did not challenge most of the facts as presented by the applicants. According to their submission of 25 July 2008 "...on 29 September 2003 an investigator of the Grozny district prosecutor's office initiated an investigation of criminal case No. 42172 opened in connection with the abduction of Aslan and Mokhmad Mudayev under Article 126 § 2 of the Criminal Code...".

25. In the same submission, referring to the contents of criminal case No. 42172, the Government further stated:

"...on 29 January 2003 in the village of Raduzhnoye in the Nadterechniy district of Chechnya officers of the Nadterechniy district department of the FSB conducted a special operation. The goal of the operation was the identification of persons who had abducted employees of the Chechnya prosecutor's office. In the course of the criminal investigation [of the Mudayev brothers' abduction] the head of the Nadterechniy district department of the FSB, Mr M.Kh., who was in charge of the operation, was questioned by the investigators.

[According to his statement] during the operation Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB in connection with the abduction of the officials from the Chechnya prosecutor's office. As a result of the questioning it had been established that Aslan and Mokhmad Mudayev had not been involved in the abduction of the prosecution officials. After that Aslan and Mokhmad Mudayev had been released."
26. The Government also submitted:

"...on 12 May 2003 a terrorist act was committed in the village of Znamenskoye in the Nadterechniy district. As a result, the building of the Nadterechniy district department of the FSB was partially destroyed. Procedural documents, explanations and statements by Aslan and Mokhmad Mudayev were [also] destroyed."
B. The search for Aslan and Mokhmad Mudayev
and the investigation
1. Information submitted by the applicants
a. The official investigation into the abduction
27. The applicants and their relatives also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders' offices, departments of the interior and prosecutors' offices at different levels, asking for help in establishing the whereabouts of Aslan and Mokhmad Mudayev. The applicants retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the local prosecutor's office. The relevant information is summarised below.

28. According to the applicants, from January 2003 to August 2003, on a number of occasions, they complained in person to the Nadterechniy district prosecutor's office about the abduction of their relatives.

29. On 22 September 2003 a local human rights organisation complained on behalf of the applicants and their relatives to the Grozny district prosecutor's office about the abduction of Aslan and Mokhmad Mudayev.

30. On 29 September 2003 the Chechnya prosecutor's office forwarded the applicants' complaint about the abduction of their relatives to the Grozny district prosecutor's office.

31. On 15 January 2004 the applicants' representatives wrote to the Chechnya prosecutor's office. They described in detail the circumstances of the Mudayev brothers' abduction during the special operation conducted by the Nadterechniy district department of the FSB on 29 January 2003. The letter stated that the brothers had been taken to the detention centre of the district department of the FSB; they had been detained there until 10 May 2003, when they had been taken away in an unknown direction. According to the information obtained by the applicants from the persons who had been detained together with Aslan and Mokhmad Mudayev from January to May 2003, the conditions of their detention had been inhuman; the brothers had been beaten, had marks of ill-treatment on their bodies and fallen ill. After May 2003, according to some witnesses, the conditions of their detention in another place had also been inhuman; the brothers had been severely beaten and bound by adhesive tape. According to the letter, the applicants and their relatives had spoken with the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. who had told them that the release of the two Mudayev brothers would be possible only in exchange for their elder brother Akhmad. The letter further stated that the applicants had complained about the arrest and detention of Aslan and Mokhmad Mudayev to a number of authorities, including the Nadterechniy district prosecutor's office, the Nadterechniy district department of the FSB, the Grozny district prosecutor's office and the Chechnya prosecutor's office. Referring to the European Convention on Human Rights the applicants requested the following information: on what grounds the Mudayev brothers had been arrested; whether any criminal charges had been brought against them and if so, what stage the criminal investigation was at; which authorities had issued the warrant for their arrest and where exactly the brothers had been detained. Finally, the applicants requested the authorities to ensure their safety and the safety of the witnesses to the abduction of Aslan and Mokhmad Mudayev.

32. On 11 February and 16 September 2004 the Chechnya prosecutor's office informed the applicants that on 29 September 2003 the Grozny district prosecutor's office had initiated an investigation into the abduction of Aslan and Mokhmad Mudayev.

33. On 28 April 2004 the Chechnya Department of Human Rights and Freedoms wrote