Постановление Европейского суда по правам человека от 27.05.2010 «Дело Хуцаев и другие (khutsayev and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF KHUTSAYEV AND OTHERS v. RUSSIA
(Application No. 16622/05)
JUDGMENT*
(Strasbourg, 27.V.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 Khutsayev 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 6 May 2010,

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

PROCEDURE
1. The case originated in an application (No. 16622/05) 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 ten Russian nationals listed below ("the applicants"), on 26 April 2005.

2. The applicants were represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. 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 March 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 applications at the same time as their 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 applications (Rule 33 of the Rules of Court).

4. The Government objected to the joint examination of the admissibility and merits of the applications. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
5. The applicants are:

1) Mr Isa Khutsayev, born in 1956,

2) Ms Birlant Khutsayeva, born in 1961,

3) Ms Maryam Khutsayeva, born in 1989,

4) Mr Aslan Khutsayev, born in 1988,

5) Mr Ibragim Khutsayev, born in 1993,

6) Ms Marina Turasheva, born in 1983,

7) Ms Aynat Sugaipova, born in 1957,

8) Mr Amsady Didayev, born in 1953,

9) Ms Ayshat Sugaipova, born in 1986,

10) Ms Milana Sugaipova, born in 1987.

6. They belong to two families who live in the village of Gekhi, in the Urus-Martan district, Chechnya.

7. The first applicant family consists of six persons (the first to sixth applicants). The first applicant is married to the second applicant. They are the parents of Beslan Khutsayev, born in 1981, and Movsar Khutsayev, born in 1984. The third applicant is the daughter of the first and second applicants; the fourth and fifth applicants are their sons and the sixth applicant is their daughter-in-law.

8. The second applicant family consists of four persons (the seventh to tenth applicants). The seventh applicant is married to the eighth applicant. They are the parents of Adam Didayev, born in 1977. The ninth and the tenth applicants are their daughters.

A. Disappearance of Beslan Khutsayev, Movsar Khutsayev
and Adam Didayev
1. Apprehension of Beslan and Movsar Khutsayev
9. On the night of 16 December 2001 the first applicant family, together with Movsar and Beslan Khutsayev, stayed at their house at 40 Sportivnaya Street, in the village of Gekhi, Chechnya. The family were not sleeping as they were preparing for the celebration of a Muslim holiday. Between 2 and 3 a.m. on 16 December 2001 a group of about ten armed masked men in camouflage uniforms rushed into the house. The men neither introduced themselves nor produced any documents. They spoke Russian without an accent. The applicants thought that they were Russian military servicemen. At some point the first applicant heard one of the officers calling somebody on his portable radio set and saying: "Fog, Fog, go out. We are ready. We are leaving." ("Туман, Туман, выходите. Мы уже все. Выходим")
10. One of the servicemen put a gun to the second applicant's head and shouted: "Everybody lie down or we will blow up the house and shoot your wife". The first applicant asked what was wrong. He was told that the group had arrived to carry out an identity check. The leader of the group ordered the first applicant and Movsar Khutsayev to lie down on the floor. The servicemen bound their hands. One of the servicemen swore at the first applicant, repeatedly kicked him in the face, broke his jaw and said: "Any Chechen is a natural-born bandit". The serviceman stopped the beatings only after his commander ordered him to do so. Movsar Khutsayev was laid on the floor next to the first applicant. He received several blows from the servicemen in the presence of the first applicant.

11. The servicemen searched the house and seized the applicants' possessions, in particular money (12,000 roubles), clothes, a tape recorder, a vacuum cleaner, watches and all the dishes cooked for the holiday celebration. They also shot through the tyres of the first applicant's MAZ car, which was parked near the house.

12. The first applicant and Movsar Khutsayev were taken outside to the yard and made to lie face down under a shed. Beslan Khutsayev was already there. He was covered in blood. The officers conducted an identity check. Upon completion of the procedure one of them hit Beslan Khutsayev in the back with a rifle butt. The servicemen seized the passports of Beslan and Movsar Khutsayev as well as that of the first applicant. Afterwards, the servicemen walked away with Movsar and Beslan Khutsayev.

13. After the servicemen had left the house, the second applicant followed them and saw several Russian military vehicles - Ural and UAZ cars and armoured personnel carriers (APCs) - parked next to the village cemetery, about 500 metres from the applicants' house. She saw the officers putting Beslan and Movsar Khutsayev inside the cars. Later on the morning of 16 December 2001 the applicants saw spots of blood, footprints from military boots and tracks left by car tyres in the snow on the way from their house to the cemetery.

2. Apprehension of Adam Didayev
14. On the night of 16 December 2001 the second applicant family, together with Adam Didayev, stayed in their house at 18 Koltsevaya Street in Gekhi. Adam Didayev was undergoing in-patient treatment for tuberculosis in a hospital and had come home for the celebration of the Muslim holiday. The family had finished the preparations when at about 3 a.m. a group of approximately twenty armed masked men in camouflage uniforms rushed into the house. The men neither introduced themselves nor produced any documents. They spoke Russian without an accent. The applicants thought that they were Russian military servicemen. At some point the seventh applicant heard one of the officers clearly saying via his portable radio set: "I am a major of the Main Intelligence Department [of the Ministry of Defence]..." ("Я майор ГРУ...").

15. The officers beat the eighth applicant with a rifle butt, breaking two of his ribs and causing him to lose consciousness. The officers also beat Adam Didayev in the applicants' presence.

16. The servicemen searched the house and seized the applicants' possessions, in particular money (14,990 roubles), clothes, a videotape recorder, crockery and dishes cooked for the holiday celebration.

17. Having finished the search of the house, the servicemen invited a masked man, who had come with them, into the house. They pointed at Adam Didayev with a flashlight and the masked man nodded as if he had recognised him. The officers ordered Adam Didayev to put on warm clothes and to go with them. The applicants showed the officers a medical certificate stating that Adam Didayev suffered from tuberculosis. The officers looked at the certificate and answered that they would clear up the matter the next day. They took Adam Didayev away, ordering the applicants to stay in the house.

18. After the officers had left the house, the seventh applicant followed them and saw several Russian military Ural and UAZ cars, as well as APCs, parked about 250 metres from the applicants' house. She saw the officers putting her son, together with some other detained persons, inside the vehicles. After that the cars moved towards the Gekhi village military commander's office.

19. The description of the events of the night of 16 December 2001 is based on the accounts provided by the applicants and their neighbours to the applicants' representatives. The first applicant family submitted: two accounts of the events by the first applicant, obtained on 9 April 2004 and 16 June 2005; an account by the sixth applicant, obtained on 23 April 2004; an account by the second applicant, obtained on 25 April 2005; an account by the aunt of Movsar and Beslan Khutsayev, obtained on 25 April 2005; and an account by the applicants' neighbour, obtained on 20 April 2005. The second applicant family submitted: an account of the events by the seventh applicant, obtained on 9 April 2004; an account of the events by the tenth applicant, obtained on 15 April 2004; an account of the events by the eighth applicant, obtained on 17 April 2004; and an account of the events by their neighbour, obtained on 20 April 2005.

20. The Government did not dispute the circumstances of the detention. They objected to the description of the intruders as "servicemen".

B. The search for Beslan Khutsayev, Movsar Khutsayev
and Adam Didayev and the investigation
1. The applicants' account
21. On 16 December 2001 the applicants started to search for Movsar Khutsayev, Beslan Khutsayev and Adam Didayev. They contacted, both in person and in writing, various official bodies, such as the Russian President, the Russian State Duma, the Chechen administration, military commanders' offices and prosecutors' offices at different levels, describing in detail the circumstances of their relatives' apprehension and asking for help in establishing their whereabouts. 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.

22. On 16 December 2001 both the applicant families complained to the Urus-Martan temporary District Department of the Interior (VOVD) about the apprehension of their relatives, ill-treatment and the seizure of documents and property. However, they did not keep copies of their letters and alleged that they had only received an oral response from the authorities.

23. On 25 February 2002 the prosecutor's office of the Urus-Martan District ("the district prosecutor's office") instituted a criminal investigation into the disappearance of Beslan Khutsayev, Movsar Khutsayev and Adam Didayev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned No. 61030.

24. On 2 April 2002, near Urus-Martan, some clothes were found, together with the remains of three men. On 7 April 2002 the district prosecutor's office conducted an identification of the clothes. The clothes were presented to Ms Zaynap Kh., the aunt of Movsar and Beslan Khutsayev, who recognised them as clothes belonging to her nephews. It appears that on an unspecified date in April 2002 the clothes were also presented for identification to the first applicant, who identified them as belonging to his missing sons. The applicants were not aware whether any official steps had been taken following this finding.

25. On 25 April 2002 the investigation of the criminal case No. 61030 was suspended pursuant to Article 195 (§ 1 (3)) of the Code of the Criminal Procedure owing to the failure to identify the perpetrators. It appears that the investigation was subsequently reopened and suspended several times. Some of these decisions have not been communicated to the applicants.

2. Correspondence of the first applicant family
with the law-enforcement authorities
26. On 15 February 2002 the second applicant wrote to a number of authorities, including the district prosecutor's office. In her letter she stated that on the night of 16 December 2001 a group of Russian military servicemen in camouflage uniforms had broken into her house and conducted a search of the place. She mentioned that the intruders had pointed their guns at the family members and had beaten her sons. The applicant stated that the servicemen had taken away valuable items belonging to her family and some identity documents, and had walked away with her sons. The applicant requested assistance in establishing the whereabouts of Movsar and Beslan Khutsayev.

27. On 29 May 2002 the second applicant requested assistance from the VOVD in establishing the whereabouts of Movsar and Beslan Khutsayev. In her letter she explained that on the night of 16 December 2001 a group of representatives of Russian power structures had broken into her house and conducted an unlawful search, and that they had subjected her family members to beatings and had taken away her two sons Beslan and Movsar Khutsayev.

28. On 22 June 2002, in response to the first applicant's request, the Military Prosecutor's Office of the Urus-Martan district informed him that such information was to be obtained from the VOVD.

29. On 19 November 2002 the first applicant wrote to the district prosecutor's office and the Chechnya Prosecutor's Office, requesting them to expedite the investigation of criminal case No. 61030. He stated that he had not been questioned by the investigative authorities and that the district prosecutor's office had failed to take any other investigative measures. He complained about the lack of information about the investigation and pointed out that although his relatives had been abducted in December 2001, the perpetrators had still not been identified. The first applicant sought a review of the measures taken by the investigative authorities and asked to be informed about the results.

30. On 4 February 2003 the second applicant requested a number of authorities, including the prosecutors' offices at various levels, for assistance in establishing the whereabouts of Movsar and Beslan Khutsayev. The applicant