Постановление Европейского суда по правам человека от 17.06.2010 «Дело Батаев и другие (batayev and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF BATAYEV AND OTHERS v. RUSSIA
(Applications Nos. 11354/05 and 32952/06)
JUDGMENT*
(Strasbourg, 17.VI.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 Batayev 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,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 27 May 2010,

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

PROCEDURE
1. The case originated in two applications (Nos. 11354/05 and 32952/06) 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 15 March 2005 and 12 July 2006 respectively.

2. The applicants were represented by Ms L. Khamzayeva and Mr D. Itslayev, lawyers practising in Moscow and in Nazran respectively. The applicants in application No. 11354/05 were granted legal aid. 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. The applicants alleged that their seven male relatives had disappeared after their detention by the security forces in Grozny in 2000. They invoked Articles 2, 3, 5 and 13 of the Convention, as well as Article 1 of Protocol No. 1.

4. On 3 October 2007 and on 21 April 2009 respectively the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the applications, and to give notice of the applications to the Government. It also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3 of the Convention).

5. The Government objected to the joint examination of the admissibility and merits of application No. 11354/05. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
6. The applicants in application No. 11354/05 are:

1. Mr Khuseyn Batayev,

2. Mr Vakha Batayev,

3. Ms Razet Sambiyeva,

4. Ms Layla Ibragimova, born in 1950,

5. Ms Elisa Ibragimova, born in 1977,

6. Ms Baret Ilyasova,

7. Ms Luiza Temurkayeva, born in 1975,

8. Ms Zura Ismailova, born in 1955, and
9. Ms Briliant Musayeva, born in 1951.

The applicant in application No. 32952/06 is:

10. Ms Zemfira Alayeva, born in 1973.

7. All applicants live in the Chechen Republic (Chechnya), Russia.

A. The applicants' relatives' disappearance
8. The applicants belong to six families. Their seven male relatives were detained in two separate incidents in 2000 in Grozny or the Grozny district and subsequently disappeared. None of the applicants had witnessed the detention of their family members and their account is based on the witnesses' accounts. The first nine applicants have been conducting the search for their relatives together.

1. Apprehension of Khasan Batayev, Zaur Ibragimov,

Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev
and Kharon Musayev
9. The second and third applicants are the parents of the first applicant and of Khasan Batayev, who was born in 1979. The fourth applicant is the mother of Zaur Ibragimov, who was born in 1975. The fifth applicant is his wife. The sixth applicant is the mother of Magomed Temurkayev, who was born in 1974 and is married to the seventh applicant. The eighth applicant is the mother of Rizvan Ismailov, who was born in 1974. The ninth applicant is the mother of Sayd-Ali Musayev, born in 1973, and Kharon Musayev, born in 1976.

10. On 18 September 2000 Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev, Kharon Musayev and Khasan Batayev were at Khasan Batayev's home at 44 Vostochnaya Street, Grozny. Two cars, a VAZ-21099 used by Magomed Temurkayev and a VAZ-2106 driven by Zaur Ibragimov, were parked in the courtyard.

11. At about 4 p.m. two armoured personnel carriers ("APCs") and a UAZ vehicle with the registration number 480-20-RUS arrived at 44 Vostochnaya Street. A group of men wearing camouflage uniforms and armed with machine guns got out of the vehicles and burst inside. They seized Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev and Kharon Musayev and took them away. The armed men also took the two VAZ cars. The men spoke unaccented Russian.

12. The applicants have had no news of Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev and Kharon Musayev since 18 September 2000.

13. The Government in their observations did not dispute most of the facts as presented by the applicants. They stated that on 18 September 2000 "unidentified persons wearing camouflage uniforms" had entered the house at 44 Vostochnaya Street in Grozny and taken away Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev and Kharon Musayev, whose whereabouts remained unknown. The Government denied that the stolen cars had belonged to Magomed Temurkayev and Zaur Ibragimov. They also challenged certain aspects of the applicants' version of the events with reference to the documents from the criminal investigation file (see details below).

2. Apprehension of Usman Mavluyev
14. The tenth applicant is the wife of Usman Mavluyev, who was born in 1972.

15. In the autumn of 1999, during the counter-terrorist operation in Chechnya, she lived with her husband and their two sons at 81 Zabolotnogo Street in Grozny.

16. In November 1999, fearing for her sons' safety, the applicant went with them to stay with her mother, who lived in the village of Zakan-Yurt in the Achkhoy-Martan District. Her husband remained in Grozny.

17. On 7 January 2000 Ms Z.A., a friend and a remote relative of the Mavluyevs who also lived in Grozny, heard from other residents that, owing to the intensification of the military operations, on 8 January 2000 a "humanitarian corridor" would be arranged for civilians so as to let them escape from the fighting in Grozny. In the evening Ms Z.A. and Usman Mavluyev agreed to use that corridor and to leave for Zakan-Yurt.

18. At approximately 10 a.m. on 8 January 2000 Usman Mavluyev, Ms Z.A., Ms S., Ms R.G. and Ms L.G. walked towards the southern exit from Grozny through the village of Chernorechye. At a certain point they were joined by Mr V. At the checkpoint in Chernorechye they were stopped for a document inspection by servicemen of the Russian interior troops. At that moment Usman Mavluyev and Mr V. were the only men in the group of civilians trying to leave Grozny. They presented their passports to the servicemen. After that the servicemen tied their hands, put bags on their heads and dragged them to an APC. The servicemen did not put any questions to them. Usman Mavluyev did not want to go and obeyed the servicemen reluctantly. Then they hit him with the butt of an assault rifle and forced him and Mr V. into the APC. Usman Mavluyev has never been seen again.

19. A few minutes after the APCs had left, bombing began. In panic, Ms Z.A., together with other residents, ran back to Grozny. On 12 January 2000 she managed to leave Grozny and arrive in Zakan-Yurt. There she related to the tenth applicant the circumstances of her husband's detention. Ms Z.A.'s written account dated 5 September 2006 was enclosed with the application. In her further submissions the tenth applicant also referred to Ms Z.A. as Ms A.A.

20. The tenth applicant has had no news of Usman Mavluyev since 8 January 2000.

21. The Government in their observations did not challenge most of the facts as presented by the applicant. They stated that on 8 January 2000 Usman Mavluyev had been apprehended by "unidentified persons" at the checkpoint in Chernorechye and taken away to an unknown destination. The Government disputed the involvement of State agents in Usman Mavluyev's disappearance.

B. Search for the applicants' relatives
and the investigation
22. The accounts in this subsection are mainly based on the information provided by the applicants. It appears that all of them sent numerous letters to the prosecutors and other authorities, describing the circumstances in which their relatives had been detained and asking for assistance and details of the investigation. The first nine applicants submitted a significant number of replies from the authorities forwarding their requests to different prosecution services. They received hardly any substantive information from the official bodies about the investigation into the disappearances. As regards the tenth applicant, she received information on the subsequent course of the investigation in 2008, after her request to study the case file had been granted by the domestic courts (see paragraphs 147 - 156 below). Below is a summary of the letters kept by the applicants and the replies they received from the authorities, and of other relevant developments.

23. In their observations the Government submitted some additional important details on the progress of the investigation, which are summarised separately in part C below.

1. Search for Khasan Batayev, Zaur Ibragimov,

Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev
and Kharon Musayev
24. It appears that shortly after the abduction of the six men their relatives started complaining about it and the theft of the two cars to various State officials.

25. On 2 October 2000 criminal investigation file No. 12199 into Khasan Batayev's kidnapping was opened under Article 126 § 2 of the Russian Criminal Code ("aggravated kidnapping") by the Grozny town prosecutor's office ("the town prosecutor's office").

26. On 11 November 2000 the town prosecutor's office instituted an investigation into Magomed Temurkayev's kidnapping under Article 126 § 2 of the Russian Criminal Code ("aggravated kidnapping"). The case was assigned number 12256.

27. On 16 November 2000 the town prosecutor's office launched criminal investigation file No. 12263 into Rizvan Ismailov's kidnapping.

28. In their observations the Government submitted that on 2 December 2000 the investigation in case No. 12199 had been suspended on account of the failure to identify the perpetrators. The Government submitted no relevant documents.

29. On 8 January 2001 the town prosecutor's office suspended the proceedings in case No. 12263 for the same reason.

30. On 9 January 2001 the town prosecutor's office opened criminal investigation file No. 11012 into Zaur Ibragimov's kidnapping.

31. On 1 February 2001 the prosecutor's office of the Chechen Republic ("the Chechnya prosecutor's office") forwarded the sixth applicant's complaint to the town prosecutor's office and commented that Magomed Temurkayev had been taken away by "unidentified military servicemen in masks".

32. On 9 February 2001 the Chechnya prosecutor's office forwarded to the town prosecutor's office the seventh applicant's complaint about the disappearance of her son, who had been apprehended by "unidentified military servicemen".

33. On 2 April 2001 the town prosecutor's office instituted a criminal investigation into the kidnapping of the ninth applicant's sons, Sayd-Ali Musayev and Kharon Musayev, under Article 126 § 2 of the Russian Criminal Code ("aggravated kidnapping"). The case was assigned number 11107.

34. On 26 April 2001 the investigation in criminal case No. 12199 was resumed. On the same day cases Nos. 12256, 12263 and 11012 were joined to it.

35. On 16 July 2002 the Chechnya prosecutor's office informed the applicants, including the ninth applicant, that the investigation in case No. 12199 had been suspended and then resumed and that the case file had been transferred to the town prosecutor's office.

36. On 19 August 2002 the Chechen Department of the Ministry of the Interior, pursuant to the rules on territorial jurisdiction, forwarded the eighth applicant's complaint about Rizvan Ismailov's apprehension "by military servicemen" to the department of the interior of the Leninskiy District of Grozny.

37. On 5 November 2002 the applicants' counsel requested the Main Department for the Execution of Sentences to inform him whether Khasan Batayev, Zaur Ibragimov, Magomed Temurkayev, Rizvan Ismailov, Sayd-Ali Musayev and Kharon Musayev had been in detention since September 2000. On 29 November 2002 the Main Information Centre of the Ministry of the Interior replied that it had no information concerning the six missing men.

38. On 25 November 2002 the town prosecutor's office granted victim status to the ninth applicant in case No. 11107 in relation to her sons' kidnapping.

39. On 19 December 2002 the town prosecutor's office suspended the proceedings in case No. 11107 on account of the failure to identify the perpetrators and ordered the police to pursue more actively the search for Sayd-Ali Musayev and Kharon Musayev.

40. On 15 October 2003 the prosecutor's office of the Leninskiy District of Grozny ("the district prosecutor's office") granted victim status in case No. 12199 to the following five applicants: the second, eighth and ninth applicants in relation to their sons' kidnapping; and the fourth and sixth applicants in relation to their sons' kidnapping and the theft of their cars. The decision referred to the registration number of the car which had belonged to Zaur Ibragimov, but only referred to the type of vehicle - VAZ-21099 - used by Magomed Timurkayev. The first, third, fifth and seventh applicants were not granted victim status.

41. On 24 October 2003 the district prosecutor's office suspended the proceedings in case No. 12199 because the term of the preliminary investigation had expired and ordered the police to pursue more actively the search for the disappeared men. According to the decision, the six men had been apprehended by "unidentified persons" wearing camouflage uniforms and armed with machine guns.

42. In their observations the Government submitted that on 7 April 2005 case No. 11107 had