Постановление Европейского суда по правам человека от 22.07.2010 «Дело Бенуева и другие (benuyeva and others) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF BENUYEVA AND OTHERS v. RUSSIA
(Application No. 8347/05)
JUDGMENT*
(Strasbourg, 22.VII.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 Benuyeva and Others 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 1 July 2010,

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

PROCEDURE
1. The case originated in an application (No. 8347/05) 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 fifteen Russian nationals listed below ("the applicants"), on 25 February 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 Moscow. The Russian Government ("the Government") were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.

3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

4. On 7 January 2008 the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

5. 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
6. The applicants are:

1) Ms Zayra Benuyeva, born in 1951,

2) Ms Kheda Benuyeva, born in 1985,

3) Ms Razet Benuyeva, born in 1976,

4) Ms Larisa Benuyeva, born in 1977,

5) Ms Khava Benuyeva, born in 1994,

6) Ms Rezida Benuyeva, born in 1982,

7) Mr Saydmagomed Benuyev, born in 1986,

8) Mr Zelimkhan Benuyev, born in 1989,

9) Mr Magomed Zhanalayev, born in 1941,

10) Ms Lula Zhanalayeva, born in 1951,

11) Ms Billant Musayeva, born in 1975,

12) Ms Kheda Zhanalayeva, born in 1979,

13) Mr Denis Zhanalayev, born in 1971,

14) Mr Ilyas Zhanalayev, born in 1983, and
15) Mr Imam Zhanalayev, born in 1993.

7. The applicants live in the Chechen Republic. The third applicant lives in the town of Urus-Martan. The twelfth applicant lives in the village of Grushevoye, the Urus-Martan District. The other applicants live in the village of Martan-Chu, the Urus-Martan District.

8. The first applicant was married to Mr Mumad Benuyev, born in 1951. The couple were the parents of the second, third, fourth, fifth, sixth, seventh and eighth applicants, and of Mr Sayd-Selim Benuyev, born in 1982. Mumad Benuyev died in 2005.

9. The ninth and tenth applicants are the parents of the eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants, and of Mr Abu Zhanalayev, born in 1973.

A. Abduction of the applicants' relatives
1. The applicants' account
(a) Abduction of Abu Zhanalayev
10. Abu Zhanalayev and his parents lived at 31 Pervomayskaya Street, in the village of Martan-Chu. Their house shared a courtyard with three other houses belonging to their relatives, including that of Mr Khasmagomed Dzhanalayev, Abu Zhanalayev's uncle.

11. In the evening of 24 November 2002 around twelve armed men wearing masks entered Khasmagomed Dzhanalayev's house without identifying themselves and started searching it. They asked if someone named Ayup lived there; Khasmagomed Dzhanalayev replied in the negative.

12. In the meantime, other armed men searched the houses of two other relatives of the Zhanalayevs. Abu Zhanalayev's house was not searched.

13. At some point the armed men decided to leave Khasmagomed Dzhanalayev's house. In the courtyard they met Abu Zhanalayev and ordered him to produce his identity papers. Abu Zhanalayev asked his uncle to bring the papers. Khasmagomed Dzhanalayev went to the Zhanalayevs' house and told the tenth applicant about the armed men; then they took Abu's identity papers and rushed to the courtyard. They saw no trace of Abu Zhanalayev or the armed men and noticed a UAZ vehicle driving away from their courtyard.

(b) Abduction of Sayd-Selim Benuyev
14. In the evening of 24 November 2002 Sayd-Selim Benuyev, his parents, siblings and other relatives were at their family home at 24 Pervomayskaya Street, in Martan-Chu. It appears that on that night there was a blackout in the village as the electricity had been cut off.

15. At about 9 p.m. around twelve armed men wearing camouflage uniforms and armed with machine guns burst into the Benuyevs' house. All but four of them wore masks; those that were unmasked had Slavic features. The armed men spoke unaccented Russian. The Benuyev family inferred that the armed men belonged to the Russian military.

16. The servicemen locked the first applicant in one of the rooms. Then they forced Mumad Benuyev to the floor and asked him where his sons were. Then they asked for Sayd-Selim Benuyev. When Sayd-Selim identified himself, the servicemen kicked and beat him and his father with machine gun butts until the two Benuyev men started to bleed. The servicemen also beat the second applicant.

17. At some point the servicemen put a sack on Sayd-Selim Benuyev's head and took him barefoot into the street. The first applicant saw two UAZ vehicles parked near her house. The seventh applicant pointed at one of the UAZ vehicles with a flashlight and the first applicant noticed scratches on its right side; the vehicle had an aerial on its roof. The servicemen put Sayd-Selim Benuyev into the UAZ with the aerial and drove off.

(c) Subsequent events
18. Immediately after Abu Zhanalayev's abduction the tenth applicant and Khasmagomed Dzhanalayev followed the UAZ vehicles. A few minutes later they met the first applicant and her brother-in-law.

19. The relatives of the two abducted men chased the UAZ vehicles in a car. At some point Mr S., a serviceman of the military commander's office, managed to stop their car and told them not to follow the vehicles because they might be shot. Mr S. added that the UAZ vehicles belonged to the department of the interior of the Urus-Martan District ("the ROVD").

20. Later, villagers of Martan-Chu saw red and a green flares in the sky. At about 10 p.m. some of them noticed two UAZ vehicles parked next to the military commander's office of Martan-Chu. Five or ten minutes later three military servicemen got out of the vehicles and entered the military commander's office, while a few men walked out of it and got into them. The two vehicles then drove away in the direction of Urus-Martan.

21. At about 11 p.m. two servicemen, acquaintances of the applicants, saw two UAZ vehicles driving in the direction of Urus-Martan. At some point they contacted other servicemen on duty at several checkpoints via portable radio and found out that the two vehicles had arrived at the ROVD.

2. The Government's account
22. On 24 November 2002 Abu Zhanalayev and Sayd-Selim Benuyev were kidnapped from the village of Martan-Chu.

B. Official investigation into the disappearance
of Abu Zhanalayev and Sayd-Selim Benuyev
1. The applicants' account
23. At about 11 p.m. on 24 November 2002 the first and tenth applicants went to the house of Mr M., the head of the ROVD. Mr M.'s bodyguards fired at the two women. They shouted and the firing ceased. Then the first and tenth applicants talked to Mr M. who told them not to worry and to go home.

24. On 25 November 2002 the first and tenth applicants lodged written complaints about their relatives' abduction with the ROVD, the military commander's office of Urus-Martan, the prosecutor's office of the Urus-Martan District ("the district prosecutor's office") and the local administration.

25. At about 11 a.m. on 26 November 2002 the first and tenth applicants saw two UAZ vehicles without registration numbers leaving the courtyard of the ROVD. They recognised the vehicles by their distinctive marks because one of them had a thick scratch and an aerial and the other one had white oil-cloth replacing broken windows.

26. On 25 November 2002 the head of the ROVD told the applicants that he had contacted those who had abducted Abu Zhanalayev and Sayd-Selim Benuyev and had asked them not to use force against the two men.

27. Trying to establish the fate and whereabouts of their missing sons, the first and tenth applicants repeatedly contacted, in person and in writing, various State agencies and officials requesting assistance in the search for Abu Zhanalayev and Sayd-Selim Benuyev. In particular, they applied to the Russian State Duma, the President of the Chechen Republic, the Administration of the Chechen Republic and the local administration. Most of those complaints were forwarded to prosecutors' offices at different levels.

28. On 25 November 2002 the tenth applicant complained to the district prosecutor's office about her son's abduction. She mentioned the searches of her relatives' homes. On the same date the first applicant asked the district prosecutor's office to establish her son's whereabouts; she noted that her husband and daughter had been beaten.

29. On 27 November 2002 the district prosecutor's office instituted an investigation into the disappearance of Abu Zhanalayev and Sayd-Selim Benuyev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case was assigned the number 61161.

30. On 29 November 2002 the local administration of the Urus-Martan District informed the first applicant that her complaint about the beating of Mumad Benuyev and the second applicant, as well as about the arrest of Sayd-Selim Benuyev had been forwarded to the military commander's office.

31. On 20 December 2002 the prosecutor's office of the Chechen Republic forwarded the tenth applicant's complaint about her son's abduction by State agents to the district prosecutor's office.

32. On 25 January 2003 the district prosecutor's office granted victim status in case No. 61161 to Mumad Benuyev and Khasmagomed Dzhanalayev.

33. On 27 January 2003 the district prosecutor's office informed Mumad Benuyev and Khasmagomed Dzhanalayev that the investigation in case No. 61161 had been suspended for failure to identify those responsible.

34. On 7 April 2003 the first applicant complained to the prosecutor's office of the Chechen Republic that Russian servicemen had abducted her son and beaten her husband and daughter.

35. On an unspecified date the tenth applicant asked the district prosecutor's office to resume the investigation into her son's kidnapping. On 11 April 2003 the request was declined for the reason that all possible investigative measures had been taken to solve the crime.

36. On 12 May 2003 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office.

37. On 14 and 16 May 2003 respectively, the district prosecutor's office informed the tenth and first applicants that the investigation in case No. 61161 had been resumed.

38. On 30 May 2003 the military prosecutor's office of the United Group Alignment forwarded the first applicant's complaint to the military prosecutor's office of military unit No. 20102 ("the unit prosecutor's office").

39. On 6 June 2003 the district prosecutor's office informed the first applicant that on 19 May 2003 the investigation in case No. 61161 had been resumed. They also noted that they were verifying whether the vehicles belonging to the ROVD could have been used in the kidnapping.

40. On 7 June 2003 the unit prosecutor's office forwarded the tenth applicant's complaint to the district prosecutor's office pursuant to jurisdiction rules.

41. On 7 June 2003 the head of the Department of the Federal Security Service of the Chechen Republic ("the Chechen FSB") informed the first and tenth applicants that required measures were being taken to establish their sons' whereabouts and that Abu Zhanalayev and Sayd-Selim Benuyev had not been arrested by the Chechen FSB because there had been no legal grounds for their arrest.

42. On 10 June 2003 the prosecutor's office of the Chechen Republic informed the tenth applicant that the investigation in case No. 61161 had been suspended on 27 January 2003. They also noted that law-enforcement agencies would search for her son more vigorously.

43. On 19 June 2003 the prosecutor's office of the Chechen Republic asked the district prosecutor's office for an update on progress in the investigation in case No. 61161.

44. On 7 July 2003 the prosecutor's office of the Chechen Republic informed the first and tenth applicants that the decision on suspension of the investigation had been quashed on 19 May 2003 and that investigative measures were being taken to solve their sons' kidnapping.

45. On 31 July 2003 the first and tenth applicants asked the district prosecutor's office to update them on the progress of the investigation.

46. On 8 August 2003 the tenth applicant complained to the prosecutor's office of the Chechen Republic that the district prosecutor's office was taking no action.

47. On 18 August 2003 the district prosecutor's office informed the applicants that the investigation in case No. 61161 had been suspended on 19 July 2003.

48. On 25 August 2003 the prosecutor's office of the Chechen Republic informed the first and tenth applicants that the decision on suspension of the investigation in case No. 61161 had been quashed on 20 August 2003 and that investigative measures were being taken to solve the crime.

49. On 4 September 2003 the first applicant complained to the district prosecutor's office about her son's abduction by Russian servicemen and asked them to take certain investigative measures in order to establish his whereabouts.

50. On 8 September 2003 the district prosecutor's