Постановление Европейского суда по правам человека от 22.04.2010 «Дело Тупчиева (tupchiyeva) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF TUPCHIYEVA v. RUSSIA
(Application No. 37461/05)
JUDGMENT*
(Strasbourg, 22.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 Tupchiyeva 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 25 March 2010,

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

PROCEDURE
1. The case originated in an application (No. 37461/05) 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 a Russian national, Ms Eru Tupchiyeva (also known as Dzhabrailova) ("the applicant"), on 29 September 2005.

2. The applicant was 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 the 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 18 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 applicant was born in 1948 and lives in Shali, Chechnya. She is the mother of Vakhit (also known as Akhmed) Dzhabrailov, who was born in 1976.

A. Disappearance of Vakhit Dzhabrailov
1. The applicant's account
6. At the material time the town of Shali was under the full control of Russian federal forces. Military checkpoints were located on the roads leading to and from the town. The area was under curfew.

7. The applicant's house at 56 Kirova Street, Shali, Chechnya, consisted of three dwellings. One of the applicant's sons, Vakhit, lived with her in one dwelling; two other sons of the applicant lived with their families in the others.

8. On the night of 2 - 3 January 2003 the applicant, Vakhit Dzhabrailov and their relatives were at home. At about 5.30 a.m. a group of fifteen to twenty armed men in camouflage uniforms arrived at their house in a white GAZ minivan with tented body ("Газель") and a grey UAZ minivan ("Таблетка"). The vehicles did not have registration numbers. The men unloaded a ladder and used it to climb over the fence into the applicant's yard.

9. The men neither identified themselves nor produced any documents. They had Slavic appearance and spoke Russian without accent. The applicant and her relatives thought that they were Russian military servicemen.

10. The men split into two groups and went into the dwellings. Some of the soldiers remained on the street and ordered the neighbours to get back in their houses. The first group broke into the house where the applicant's son Mr R. Dzh. lived with his family. They took him outside and put him on the floor of the UAZ minivan. Mr R. Dzh. was shown to a man in the vehicle and then immediately released.

11. In another house the servicemen detained Vakhit Dzhabrailov and took him outside. They put him face down on the ground. Vakhit Dzhabrailov, who was suffering from tuberculosis, was not allowed to put on warm clothing. The applicant asked the soldiers where they were taking Vakhit, but did not receive any response. After that the soldiers put Vakhit in the UAZ minivan. Immediately afterwards one of the officers contacted someone via a portable radio and reported that they had taken someone. After that the vehicles drove away in the direction of the local mosque and the Shali district department of the interior (the ROVD).

12. The abduction of Vakhit Dzhabrailov was witnessed by a number of the applicant's relatives and neighbours. The applicant has had no news of Vakhit Dzhabrailov since the day of his abduction.

13. The description of the circumstances surrounding the disappearance of the applicant's son is based on the following documents: an account by the applicant dated 22 December 2003, an account by the applicant's neighbour Ms N.U. dated 12 December 2003, an account by the applicant's son Mr R.Dzh. dated 10 November 2005, accounts by the applicant's relatives Ms A.Al. and Ms S.T., both dated 10 November 2005, and an account by the applicant's neighbour Ms A.Ak. dated 17 November 2005.

2. Information submitted by the Government
14. The Government did not challenge most of the account presented by the applicant. According to their submission "...criminal case No. 22015 was opened by the Shali district prosecutor's office after Ms E. Tupchiyeva (Dzhabrailova) had complained that unidentified persons had abducted V. Dzhabrailov from 56 Kirova Street in Shali, Chechnya at about 10 a.m. on 3 January 2003..."
B. The search for Vakhit Dzhabrailov and the investigation
1. The applicant's account
15. In the morning of 3 January 2003 the applicant and her relatives started searching for Vakhit Dzhabrailov. They also contacted, both in person and in writing, various official bodies, such as the Russian President, the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic, the Shali district administration, the Chechen administration, military commanders' offices 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 applicant retained copies of some of those letters and the authorities' replies and submitted them to the Court.

16. According to the applicant, at some point after the events one of the servicemen who had been on duty at the ROVD on the night of the abduction told her that on the night of 3 January 2003 the minivan with Vakhit Dzhabrailov had been driven up to the ROVD building and left shortly afterwards.

17. On 5 January 2003 the head of the Shali district administration forwarded the applicant's complaint about her son's abduction to the ROVD.

18. On 27 January 2003 the district prosecutor's office instituted an investigation into the disappearance of Vakhit Dzhabrailov under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 22015. The applicant was informed about it on 1 July 2004.

19. On 13 November 2003 the applicant wrote to the Chechnya prosecutor's office. She described the circumstances of her son's abduction and stated that her requests to various law-enforcement bodies had not produced any results. She pointed out that the Shali district prosecutor's office (the district prosecutor's office) had failed to initiate an investigation into her son's abduction. She expressed her concerns about her son's state of health as at the time of his abduction Vakhit Dzhabrailov had been suffering from tuberculosis.

20. On 3 December 2003 the applicant's representatives requested the district prosecutor's office to inform them about the following: whether the authorities had initiated a criminal investigation into the abduction of Vakhit Dzhabrailov; whether the applicant had been granted victim status in the criminal case, and what measures had been taken to establish the identity of the perpetrators of the kidnapping and the whereabouts of the applicant's son. No reply was given to this request.

21. On 1 June 2004 the applicant's representatives reiterated their request of 3 December 2003.

22. On 1 July 2004 the district prosecutor's office informed the applicant's representatives that on 27 January 2003 they had instituted an investigation into the disappearance of Vakhit Dzhabrailov and that the case file had been given the number 22015. According to the letter, on an unspecified date the applicant had been granted victim status in the criminal proceedings.

23. On 7 August 2004 the military prosecutor's office of the United Group Alignment (the military prosecutor's office of the UGA) forwarded the applicant's request for assistance in the search for her son to the military prosecutor's office of military unit No. 20116.

24. On 17 February 2005 the Shali district military commander's office (the district military commander's office) informed the applicant that they had examined her complaint about the abduction of Vakhit Dzhabrailov and forwarded a number of requests for information to various law-enforcement bodies.

25. On 11 March 2005 the district military commander's office informed the applicant that in connection with the abduction of her son the ROVD had opened operational search file No. 71409 and measures aimed at establishing his whereabouts were under way.

26. On 19 July 2005 the applicant's representatives requested the district prosecutor's office to provide information concerning the progress of the investigation in the criminal case, the date of suspension of the criminal proceedings and the results of examination by the investigative authorities of the applicant's version of the involvement of Russian military forces in the abduction of Vakhit Dzhabrailov. The representatives also requested to be informed whether the applicant could be provided with access to the investigation file. No reply was given to this request.

27. On 5 October 2005 the applicant's representatives reiterated their request for an update on the criminal investigation.

28. On 12 November and 12 December 2005 the district prosecutor's office informed the applicant's representatives that on 8 July 2004 they had suspended the investigation in the criminal case. They also stated that the investigation had not established the involvement of Russian military servicemen in the abduction. The letters further invited the applicant to familiarise herself with those documents from the investigation file "which concerned her interests as a victim in the criminal case".

29. According to the applicant, between January 2003 and December 2005 the investigators from the military prosecutor's office questioned twelve witnesses from her relatives and neighbours about Vakhit Dzhabrailov.

2. Information submitted by the Government
30. Without submitting any of the relevant documents or providing the dates of the investigating measures the Government stated that the investigation of the abduction of Vakhit Dzhabrailov had been initiated by the district prosecutor's office and that the applicant had been granted victim status in the criminal case.

31. On an unspecified date the investigators questioned the applicant, who stated that on 3 January 2003 she had been at home. At about 10 a.m. a group of armed men in camouflage uniforms had broken into her house. At first the men had taken away her son Ramzan; however, they had brought him back soon afterwards and taken her second son, Vakhit Dzhabrailov. The men placed him in a grey UAZ minivan and took him away to an unknown destination. At some point later the investigators again questioned the applicant, who stated that it was one of her sons, Mr V.Dz., who had informed her about the visit of the abductors' car to the ROVD on the night of the abduction and that he, in his turn, had obtained this information from taxi drivers who had witnessed the vehicle arriving at the ROVD and leaving some time later.

32. On an unspecified date the investigators questioned the applicant's neighbour Ms A.Ak., who stated that at about 10 a.m. on 3 January 2003 she had seen from her window a tented GAZ vehicle and a grey UAZ minivan pulling over to the applicant's gate. A number of men in camouflage uniforms who were armed with automatic weapons had got out of the vehicles and fetched a ladder from the boot of the GAZ car. They had used the ladder to climb over the applicant's gate; they got into the applicant's yard and opened the gate from inside. About ten minutes later the armed men brought the applicant's son Mr R.Dzh. to the vehicles; a few minutes later they took him back to the house. After that the intruders took the applicant's other son, Vakhit Dzhabrailov, placed him in the grey minivan and drove away. According to the witness, in the UAZ minivan she had noticed a man in camouflage uniform of Caucasian appearance and to whom the applicant's sons had been shown.

33. On an unspecified date the investigators questioned the applicant's neighbour Ms N.U. who provided a statement similar to the one given by Ms A.Ak.

34. On an unspecified date the investigators questioned the applicant's neighbour Mr A.T. who stated that at about 10 a.m. on 3 January 2003 he had heard screams coming from the applicant's house and the noise of a vehicle driving down the street. He had immediately gone to the applicant's house where he had been told that armed men had taken away Vakhit Dzhabrailov.

35. According to the Government, the investigators also questioned witnesses Ms T.M. and Ms Z.D. whose statements had not provided any significant information for the investigation.

36. On an unspecified date the investigators conducted the crime scene examination at the applicant's house. Nothing was collected from the scene.

37. Further, on unspecified dates the investigators forwarded a number of requests to competent authorities, including various district departments of the interior and district prosecutor's offices in Chechnya, the Shali department of the Federal Security Service (the FSB), the military commander of the United Group Alignment in the Northern Caucasus (the UGA), the military prosecutor of military unit No. 20116, the Chechnya Ministry of the Interior (the Chechnya MVD) and the Federal Department of Execution of Punishment in Kabardino-Balkaria. According to the responses received from the agencies, they had not conducted any special operations on 3 January 2003 in Shali and did