FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27180/03
by Nurzhan Supyanovna ABDULKADYROVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 24 January 2008 as a Chamber composed of:

Christos Rozakis, President,
Loukis Loucaides,
Nina Vajić,
Anatoli Kovler,
Elisabeth Steiner,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 20 July 2003,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

(1) Mrs Nurzhan Supyanovna Abdulkadyrova, born in 1973;

(2) Mr Shamkhan Ayndayevich Dzhabayev, born in 1995;

(3) Mr Zumrat Ayndayevich Dzhabayev, born in 1993;

(4) Mrs Kheda Ayndayevna Dzhabayeva, born in 1991.

The applicants are Russian nationals and live in Urus-Martan, Chechnya. They are represented before the Court by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Arrest and detention of Ayndi Dzhabayev

The first applicant is the wife of Ayndi Aliyevich Dzhabayev, born in 1967. The second, third and fourth applicants are their children. The first applicant is a librarian by profession, but is currently unemployed. The sole breadwinner of the family was her husband Ayndi Dzhabayev, who worked as a bricklayer in a construction company.

The applicants live in their own house at 26 Krasnoarmeyskaya Street in the town of Urus-Martan. At this address there are three houses, sharing a common courtyard. Two other houses are occupied by their relatives. One house is occupied by Said-Magomed D., his wife Fatima (also called Petimat) A. and their two daughters, who were six and three years old in September 2002.

There is a direct passage between their courtyard and the house of their neighbours who live at 28 Krasnoarmeyskaya Street.

On 8 September 2002 the first applicant had been at the market since early morning. Her three children – the second, third and fourth applicants – were at home with their father, Ayndi Dzhabayev, who was ill. The applicants’ presentation of the events related to Ayndi Dzhabayev’s detention is based on statements by the third and fourth applicants, Fatima A. and two neighbours, Roza P. and Kheda A., who were eyewitnesses to these events.

According to these statements, on 8 September 2002 at about midday, a group of military servicemen in several armed personnel carriers (APCs) surrounded the house at 28 Krasnoarmeyskaya Street, next door to the applicants’ house. The second, third and fourth applicants were playing in the street outside their house. When the military arrived, they went into their house, together with their friend Kh.

At house no. 28 there was an exchange of automatic gunfire. The first applicant’s sister-in-law, Fatima A., and her two children ran into the first applicant’s house. The shooting in the neighbouring house lasted for about five to ten minutes. When it stopped, Fatima A. went over to her house with her younger daughter.

Then a serviceman broke down the door which separated the applicants’ courtyard from the courtyard of their neighbours at no. 28 and entered their courtyard. The serviceman was wearing a balaclava and was armed with an automatic weapon. He shouted in Russian: “Everybody out in the street, bitches!”

Fatima A. ran into the street with her daughter. She was scared to return for the other children and called them from the street to come out. The second and fourth applicants heard the shouting and immediately went outside. Their father Ayndi Dzhabayev told them to go outside, while he was dressing and looking for his passport. The third applicant was late coming out of the house. While in the courtyard he heard the serviceman ordering someone “Hands on the wall, animal!” He turned back and saw the military aiming the gun at his father, who quickly walked to the wall and put his hands up. He had not had time to put on his shoes. The serviceman walked up to Ayndi Dzhabayev. The third applicant was scared to remain and went out into the street.

Then Fatima A. realised that her elder daughter had remained inside the house and asked the fourth applicant to go and get her. When the fourth applicant entered the courtyard it was empty and her father and the servicemen had gone. She picked up her cousin from the house and they went to join the rest of the family at the house of their neighbour Kheda A. There they were joined by a neighbour from 29 Krasnoarmeyskaya Street, Roza P., who had similarly been ordered to leave her house by the Russian servicemen.

Then the applicants heard shooting at the house no. 28 and then at their own house. They submitted that it had not been an exchange of fire, because there had been only one machine-gun firing and the soldiers standing in the street had not reacted to it and had remained calm.

At around 3 p.m. the servicemen gathered in the street in front of house no. 28 where the initial shooting had broken out. The soldiers laughed and said that they had killed one fighter (“boyevik”) and another one had run away. At about 3.30 p.m. the head of the town administration and the head of the Urus-Martan district administration arrived. Both men talked to the senior officers among the military. Then the local residents started to come out of their houses and approach the military.

Witnesses Roza P. and Kheda A. submitted that they had seen a lot of military vehicles in the streets, including APCs and Ural trucks. Some of the servicemen had gone to the office of the district military commander, located about 300 metres from the applicants’ house.

Fatima A. with her children and the second, third and fourth applicants returned to their house. Ayndi Dzhabayev was not there. Inside the house everything had been turned upside down, and things had been thrown out of wardrobes. The furniture and clothes were covered with bullet holes and there were a lot of cartridges from automatic weapons scattered on the floor. In the vegetable patch behind the house were the tracks of an APC.

Roza P. walked up to the heads of the town and district administrations and asked them where Ayndi Dzhabayev was. The men replied that no one had been detained.

Roza P. and Kheda A. were among the local residents in front of no. 28 Krasnoarmeyskaya Street. They testified that the gates of the house had been opened and they could see that inside there had been a minibus and an Ural military truck. Under the fence-roof they had seen the body of a man (“the fighter”) who had been killed there during the shooting. Several servicemen put the body on a blanket and carried it to the minibus. In the crowd there was the wife of Magomed A., the owner of no. 28, who had apparently been sought by the military. She identified the man killed as a friend of Magomed’s, while Magomed himself had escaped.

The first applicant returned home at about 4 p.m. By that time the military had left. Her eldest daughter, the fourth applicant, told her that they had been forced out of the house by the military, and when they returned their father had no longer been there. The first applicant found the walls and furniture covered with bullet holes. She went into the vegetable patch behind the house and noted APC tracks which led towards the buildings of the Urus-Martan District Administration, the district military commander’s office and the premises of a former clothes factory, which at the time was being used to house a military unit. In the passage between their house and no. 28 the applicant found a pack of “Karsil” medicine, used by her husband, who had a liver problem. In the courtyard she found his cigarettes and cigarette holder. She also found his shoes on the porch of the house and concluded that her husband had been taken away barefoot.

On the same day the first applicant went to the town administration, but found it already closed and returned home.

On the same day at about 6 p.m. a group of about 30 servicemen again arrived at 28 Krasnoarmeyskaya Street in three APCs and one UAZ vehicle. Seven or eight men were wearing masks, the rest were without masks. A large group of servicemen entered no. 28 and probably conducted a search there. Then the military searched the vegetable patches. When the first applicant asked what they were looking for, they said that they were looking for weapons.

Then the military wanted to search the third house in the applicants’ courtyard which belonged to their relatives. The first applicant asked them not to break the door down and they waited for her to fetch the key. She explained that the house belonged to their relatives who lived in another region and the military searched it. They did not show any papers to the applicants.

The first applicant talked to one of the servicemen and said that earlier on the same day her husband had been driven away by the military. One serviceman who was not wearing a mask told her that if her husband was not guilty of anything, he would be released. Another serviceman told her that they had not detained anyone. When the applicant insisted, he told her that the operation earlier that day had been carried out by other servicemen and that they had come only to carry out the search. They refused to answer any more questions and left after about half an hour.

The first applicant submitted that later that day officers from the District Prosecutor’s Office had questioned her neighbours at no. 28. No one came to the applicants’ house to question them or their relatives.

The applicants have had no news of their husband and father Ayndi Dzhabayev since that day.

The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 8 September 2002 at about 12.30 p.m. unidentified armed men wearing camouflage uniforms had entered the applicants’ house, destroyed some property and taken Ayndi Dzhabayev away to an unknown destination. His whereabouts could not be established.

2. Search and investigation into the “disappearance”

The first applicant began searching for her husband on 9 September 2002. She applied to various official bodies, both in person and in writing, trying to find out the whereabouts and the fate of Ayndi Dzhabayev. The first applicant also travelled around Chechnya when she heard of unidentified bodies being found, hoping to find him.

In the morning of 9 September 2002 the first applicant visited the local military commander’s office, the Department of the Interior and the district prosecutor’s office. Everywhere she was told that they did not know who had detained her husband or where he was.

The applicants received hardly any substantive information about the fate of their husband and father or about the investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to different prosecutors’ services. They submitted these documents to the Court, and they can be summarised as follows.

On 9 September 2002 the first applicant submitted a written application to the Urus-Martan District Prosecutor’s Office. Her application was registered under no. 1755 and the applicant was informed that it had been assigned to investigator L. The applicant stressed that at that time in their house cartridges from the automatic weapons were still lying around and the tracks of the APC were still visible behind the house.

On 10 September 2002 the applicant submitted an application to the local military commander, to the head of the district administration, and to the Office of the Special Envoy of the Russian President for rights in freedoms in Chechnya. She also wrote to the NGO Memorial Human Rights Centre.

For several days afterwards the first applicant visited all the law-enforcement and military offices in the district. Everywhere the officers denied that her husband had been detained and that they had been responsible for the operation on 8 September 2002.

On 18 September 2002 the applicant managed for the first time to meet investigator L. of the District Prosecutor’s Office, who showed her a plan of her neighbours’ house at 28 Krasnoarmeyskaya Street and asked in which room her husband had been detained. The first applicant realised that the investigator had information that Ayndi Dzhabayev had been detained at their neighbours’ house, and not at theirs. The first applicant tried to persuade him otherwise, but the investigator insisted that at the moment of detention Ayndi Dzhabayev had been in no. 28. Then the investigator asked her about her neighbours. The investigator told her that he would call her if there was a need for further statements. He did not take any other actions, such as examining the applicant’s house or questioning the neighbours and relatives.

On 23 September 2002 the district newspaper Marsho published an article called ‘Police should work’, where the Urus-Martan district military commander was quoted as saying that there had been a “combat action” in Krasnoarmeyskaya Street, as a result of which one man who had mounted active resistance had been killed and his body had been transferred to the district administration.

On 4 October 2002 the Chechnya Prosecutor’s Office forwarded the first applicant’s complaint to the Urus-Martan District Prosecutor’s Office.

On 7 October 2002 the first applicant again visited the District Prosecutor’s Office and found out that her application of 9 September 2002 had been lost, though the registration number existed. The investigator who was responsible for her case had been discharged from work, and he had failed to take any action on her complaint.

On 8 October 2002 the applicant again submitted an application to the district prosecutor. She stated that her husband had been detained by military servicemen on 8 September 2002 during a special operation, which had been reported in a local newspaper. She also referred to the killing of an unknown young man during the operation and the involvement of a large group of servicemen and military vehicles. The applicant asked the prosecutor to inform her of the progress of the investigation and to grant her victim status in the proceedings.

On 11 October 2002 the applicant was told at the District Prosecutor’s Office that her complaint had been forwarded by that office to the district department of the interior (ROVD). The applicant submitted that this decision had been unlawful, because investigations in criminal cases concerning kidnapping should be conducted by the prosecutor’s office. She also submitted that it was only one month later that she had managed to see the officer at the ROVD who was responsible for her case. That officer questioned her and the fourth applicant, and then returned the case to the Urus-Martan District Prosecutor’s Office.

On 16 October 2002 the first applicant wrote to the Head of the Urus-Martan Town administration and to the district military commander, asking for assistance in finding her husband, who had disappeared after being detained.

On 4 November 2002 the first applicant addressed the Urus-Martan District Prosecutor, asking for help in finding her husband and complaining of inactivity of the investigation.

On 6 November 2002 the Chechnya Prosecutor’s Office forwarded the first applicant’s complaint to the District Prosecutor’s Office of Urus-Martan.

On 7 November 2002 the first applicant submitted detailed complaints to the Russian President, to the Prosecutor General and to the Chairwoman of the Presidential Commission on Human Rights. She stated the known details of her husband’s detention and her attempts to obtain an investigation. She complained that the prosecutors had failed to question the witnesses and her children, to examine the site or to collect evidence.

On 15 November 2002 the Chechnya Prosecutor’s Office forwarded the applicant’s complaint to the Urus-Martan District Prosecutor’s Office and requested them to inform that office of the progress of the proceedings.

On 20 November 2002 an investigator of the District Prosecutor’s Office informed the first applicant that on 20 November 2002 they had opened criminal investigation file no. 61152 into the kidnapping of Ayndi Dzhabayev, which had occurred on 8 September 2002 in Urus-Martan.

On 29 January 2003 the Directorate of the General Prosecutor’s Office for the Southern Federal Circuit forwarded the first applicant’s complaint to the Chechnya Prosecutor’s Office.

On 3 March 2002 the first applicant applied to the Urus-Martan District Court, complaining about the actions of the district military commander. She stated that the special operation on 8 September 2002 had been carried out by the military who reported to the local military commander. She requested the court to order the military commander to disclose information concerning her husband’s whereabouts and reasons for detention, to grant him access to a lawyer and to allow him to challenge the lawfulness of detention. This complaint has not been heard.

On 14 March 2003 the Chechnya Prosecutor’s Office forwarded the applicant’s complaint to the Urus-Martan District Prosecutor’s Office and requested that office to inform them of the progress in the proceedings.

On 15 April 2003 the first applicant again applied to the Urus-Martan District Court, complaining about the actions of the district prosecutor’s office. She requested the court to oblige the prosecutor’s office to carry out an investigation of her complaint concerning the detention and disappearance of her husband and to take a number of actions, such as to grant her victim status, to question her children, sister-in-law and neighbours about the events of 8 September 2002, to collect the bullets and cartridges from her house, and to identify and question those responsible for the operation. The applicant also requested the court to calculate the amount of damage caused to her property and identify those responsible. The applicant received no answer to this complaint.

On 14 May 2003 the Urus-Martan District Prosecutor’s Office replied to the first applicant and stated that the investigator responsible for the case at the initial stage had been dismissed for negligence. Within the proceedings of criminal case no. 61152 the first applicant, her children and other witnesses had been questioned. The question of damage to her property should be resolved by court. The question of the examination of the site and collection of evidence could be resolved only if there was an agreement of all residents of the household and if the evidence of the crime, such as bullets and cartridges, was still present.

On 15 May 2003 the applicant, during one of her visits to the District Prosecutor’s Office, received from an investigator a copy of the document in the case file which, as he told her, proved that her husband had been detained by the military. The “administrative report” was drawn up by the Urus-Martan military commander Colonel G. on 8 September 2002. The document stated:

“I, the military commander of the Urus-Martan district Colonel G., on 8 September 2002 carried out an administrative investigation concerning the wounding of a serviceman of the military commander’s office, senior assistant to the head of the intelligence unit Captain I. The investigation established:

On 8 S