FIRST SECTION
Application no. 18114/06
Zhanar-Ali Uspayevich AMADAYEV against Russia
lodged on 28 April 2006
STATEMENT OF FACTS
The applicant, Mr Zhanar-Ali Amadayev, is a Russian national who was born in 1965 and lives in Chastoozerye, the Kurgan Region, Russia. He is represented before the Court by lawyers of NGO Human Rights Centre Memorial practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The events of 18 May 2002
The applicant and his family are of Chechen ethnic origin. They live in the Chastoozerye (also called Chastoozerskiy) district of the Kurgan Region, along with about 55 persons of Chechen origin. According to the applicant, at the time of the events in question the population of the Chastoozerye district constituted about 6,000 persons.
The applicant submits that the attitude towards the Chechen minority had worsened after 2000, when the second armed conflict in Chechnya (“the Second Chechen war”) had started. Two Russian nationalistic organisations were particularly active in the Region: the Russian Nationalistic Unity (RNE) and the Russian National Cultural Autonomy (RNKA).
It appears from the applicant’s statements and other documents that immediately prior to 18 May 2002 ethnic tension has been mounting in the district. In particular, the applicant claims that Mr A.I., manager of the Chastoozerye sausage factory resident of Kurgan, and Mr S.K., boxing coach from Chastoozerye, invited the Chechen community and some nationalistic Russian groups to “settle the dispute” on 18 May 2002. Pursuant to the statement of 3 June 2006 given by Mr D.A., who calls himself “spiritual leader of the Chastoozerye Chechens”, on 18 May 2002 this information has been transmitted by him to the district prosecutor and the head of administration, in order to take measures aimed at maintaining law and order (see below).
On 18 May 2002 in the afternoon a group of policemen was put on the main road of Chastoozerye near the sausage factory. At about 5 p.m. this group stopped the applicant’s car in which there were two other Chechen men from Chastoozerye: Mr S.-A.B. and Mr U.B. Their vehicle was inspected, as well as their documents. The car then proceeded to Mr S.‑A.B.’s house situated at the Karl Marx Street, no. 28.
At about 5.30 p.m. three cars - white and red VAZ 2110 and Moskvich 2115 – passed by the same policemen and stopped in front of the house. About 15 men including Mr S.K. got out of these cars and invited the applicant and Mr U.B. to get into the cars and come with them. When they refused, one of the men shot the applicant at the knee, and then second knee, with an air gun. The two men were then beaten with baseball bats, as a result of which the applicant’s right arm has been broken.
The applicant was left on the road in front of Mr S.-A.B.’s house, while Mr U.B. was loaded into the Moskvich and driven to the sausage factory. There was a crowd of up to 70 men there including the manager Mr A.I.; they beat Mr U.B. with metal rods, baseball bats and pipes. During the beatings the crowd shouted nationalistic and anti-Chechen slogans. The police ordered them to stop sometime after and they released Mr U.B. Later the same day the applicant and Mr U.B. were taken to the local hospital by Mr D.A. The applicant did not submit any medical documents, but in the unofficial copy of the criminal investigation material (see below) there are cited two forensic expert reports describing his and Mr U.B.’s injuries.
It appears that other incidents not involving the applicant directly took place later that day in Chastoozerye. A group of men of Chechen ethnic origin stayed in the forest near the village; in the early hours of 19 May 2002 the police rounded them up and found weapons and home-made explosive devices. This group was taken to the district police department (ROVD) by the officers of the police special forces (SOBR). Allegedly, they were also beaten and insulted; they were let go after they had spent the night at the police station.
2. Criminal investigation
The applicant submitted a list of documents contained in the criminal investigation file no. 96348 and extracts (not copies) of some documents. According to his notes, the case file contained 255 pages of documents in two volumes. The most relevant information from these notes could be summarised as follows.
(a) The decision to open criminal investigation and other procedural decisions
On 18 May 2002 the Chastoozerye ROVD opened criminal investigation under Article 111 part 3 (intentional infliction of grave injuries, committed by a group of persons or under conspiracy).
On 13 June 2002 the head of the Kurgan Department of the Interior set up a group of five police investigators to work on the case.
Between August 2002 and June 2004 the investigation was adjourned and reopened on five occasions. Following the applicant’s latest complaint, on 28 June 2011 the decision to adjourn the investigation of 11 June 2004 has been quashed and the case was forwarded for further processing to the police investigative department of the Kurgan Region. The letter of the same date acknowledged that the applicant had not been timely informed of the decision to adjourn the case in June 2004.
(b) The victims’ statements and forensic evidence
On 18 May 2002 the applicant was questioned and granted victim status.
On 22 May 2002 the applicant submitted a written statement to the Chastoozerye District Prosecutor (“the district prosecutor’s office”), describing the events of 18 May 2002 and asking to carry out a criminal investigation into his injuries. In his statement the applicant named Mr. S.K. as one of the perpetrators and the owner of the Moskvich vehicle.
Mr U.B. was questioned on 18 May 2002; on 18 June 2002 he was additionally questioned and granted the status of victim. He named Mr. A.I., the sausage factory manager, as one of the persons who had been present at the factory during his ill-treatment, and Mr S.K. as the owner of the car in which he had been transported. He also described several other attackers in some details, including Mr Ye.P.
On 22 May 2002 a forensic expert found that Mr U.B. had suffered from beatings and that one rib was fractured, which constituted medium gravity injuries.
On 28 June 2002 a forensic expert found that the applicant had suffered from two gun-shot wounds by pellets in both knees, resulting in fractures of tibia bones; and from fracture of right elbow bone caused by a blunt blow. They were described as medium gravity injuries.
In May 2003 the applicant was again questioned. He described the attack at him, again mentioning Mr S.K. as one of the perpetrators. He further stated that Mr U.B. had gone to Chechnya and that he would not be able to identify other attackers.
(c) Statements by other Chechens
On 19 May 2002 about a dozen local male residents of Chechen ethnic origin were questioned by the police. Most of them confirmed that on 18 May after 7 p.m. they had had a pre-arranged meeting with Mr A.I.. During the meeting he told them that the men who had injured the applicant and Mr U.D. had already left. After the meeting they went to the forest to avoid further violence.
On 3 June 2002 Mr D.A., the “spiritual leader of the Chastoozerye Chechens”, submitted a written statement to the head of the Kurgan Region Police. Mr D.A. described in details the events of 18 May 2002, indicating that as of 10 a.m. on that day he had informed the district prosecutor and the head of administration about the forthcoming gathering of the anti-Chechen mob in Chastoozerye. He then described the attack at the applicant and Mr U.B. as well as the subsequent detention and ill-treatment of the Chechen men by the SOBR servicemen. He asked the police to take measures aimed at investigating the crimes.
In July 2002 the investigators questioned a number of other Chechens, including the applicant’s brother. They described the attack at the applicant and subsequent events of 18 May, referring in particular to Mr S.K. and Mr A.I. as active participants of the violence.
On an unspecified date 28 ethnic Chechen men residing in Chastoozerye signed a complaint to the Prosecutor of the Kurgan Region. They described the events immediately prior to 18 May 2002 and the attack at the applicant and Mr U.B. They also reported their detention at the ROVD on the night of 18 to 19 May 2002, beatings and insults to which they had been subjected.
(d) Identification of perpetrators and their questioning
On 18 and 19 May 2002 the investigators questioned a dozen men who had been present at the sausage factory during the events. Some of them stated that they had come to Chastoozerye to spend the weekend with Mr. A.I.: to play football and go to sauna together. Others stated that they had been told by their friends that “their help was needed” during a meeting with the Chechens. Most of them confirmed that a group of up to 80 men had gathered at the sausage factory in the afternoon on 18 May 2002 and that they had discussed the conflict with the local Chechens. No one testified about the incident with the applicant or about the beating of Mr. U.B.
On 19 May 2002 Mr U.B. identified Mr Ye.P. during a line-up as one of the men who had attacked him in the Marx Street and then at the sausage factory.
Mr A.I. was questioned on 19 May and then again on 19 June 2002. During the first questioning he stated that on the previous day some of his friends had come from elsewhere to spend the weekend together or for business reasons. They learnt that the Chechens were planning a violent confrontation and decided to stay with him. At about 6 p.m. one Chechen man came to the sausage factory and told him that someone had shot at his compatriot, but Mr A.I. denied knowledge of this and the man left. After 8 p.m., several cars with Chechens came to the sausage factory but Mr A.I. and the police present there had prevented violent clashes.
During the second questioning Mr A.I. named several men who had come to the sausage factory on 18 May, including his brother Mr D.I. – the owner of the factory – and Mr Ye.P. He confirmed that he had set up a meeting with the Chechens on that day in order “to discuss with them their behaviour” and that he had invited his friends to attend the meeting “in order to support him”. His friends had arrived unarmed. At about 6 p.m. he saw a group of men beating Mr U.B. in the courtyard of the sausage factory; he intervened and stopped the beatings. He did not know the men who had beaten Mr U.B. Then there arrived several cars with Chechens and he and policemen escalation of violence. The Chechens then left, having taken Mr U.B. along.
In June 2002 the police compiled a list of about twenty men and six vehicles that had come to Chastoozerye on the day in question. Most men were questioned in June –July 2002 and confirmed that they had arrived to Chastoozerye because they had “heard about problems with Chechens”, but denied that they had taken part in the attack at the applicant or in violence at the sausage factory.
On 19 June 2002 Mr S.K. was questioned as a witness. He stated that he had been aware of the conflict with the Chechens from Mr A.I. but that he had not planned to take part in the meeting set up for 18 May. In the evening of that day he was driving in his car along the Marx Street when he saw a man lying on the ground and several men. One of them, brandishing a gun, ordered him to take the wounded man to the sausage factory. Mr S.K. did not know these men and would not be able to identify them; he saw that they continued to beat the man at the sausage factory, which he left immediately. In July 2003 Mr S.K. was questioned again; he repeated his previous statements in respect of the attack at the applicant.
On 25 June 2002 Mr Ye.P. was questioned as witness. He explained that the day before 18 May Mr A.I. called him and invited to come, with his friends, for a “fixed date” with Chechens in Chastoozerye. He then named several men who had come with him from Kurgan and the vehicles in which they had travelled. He confirmed that he had a baseball bat in the truck of his car, but that their vehicle had not been inspected by police. Soon after 5 p.m. he had seen a large crowd at the sausage factory, many of them armed with rods and sticks. He witnessed the crowd beating one Chechen but denied that he had taken part in it.
In July 2002 the applicant identified four men, including Mr Ye.P., as the perpetrators of the attack.
(e) Policemen statements
Policeman from the Chastoozerye ROVD stated that on 18 May 2002 he had manned a post on the road near the sausage factory. Together with another policeman they searched vehicles for arms, but nothing was found.
In June 2002 two other policemen confirmed that they had inspected a number of vehicles with young “sportive-looking” men who had arrived to Chastoozerye on 18 May; no arms or other dangerous items had been found. Later at the sausage factory one policeman saw Mr A.I. and Mr S.K. in the crowd; the latter had behaved in an aggressive manner and incited the crowd.
(f) Statements by other witnesses
In June 2002 the investigators questioned about a dozen local residents. Some of them had seen the Moskvich car driven by Mr S.K. in the Marx Street. Others were aware of the “tensions” with Chechens and of the “fixed date” between the two communities on 18 May. No one had witnessed the attack at the applicant.
(g) Material evidence related to the attack at the applicant
On 18-19 May 2002 the investigators searched the Karl Marx Street and collected cartridges from air-gun and pellets. Pellets were also extracted from the applicant’s wounds.
On 19 May the premises of the sausage factory were searched, nothing of relevance has been found.
On 19 May 2002 12 vehicles present in Chastoozerye on the day of the incident and their owners were identified and noted.
(h) Information and evidence of the violence by the Chechens
On 19 May 2002 the police examined the place in the forest where the group of Chechen men had gathered in the evening on 18 May. They collected metal rods and pipes, wooden sticks, bottles with inflammable liquid (gasoline), hand pistol, knives and one hunting gun. On the same day, searches were carried out in the houses of Mr S.-A.B. and another Chechen in Chastoozerye. A separate criminal investigation was opened in this respect on 20 May 2002. Its outcome is unclear.
(i) Decisions not to charge anyone with incitement to racially motivated hatred
On 13 June 2002 the district prosecutor’s office decided not to bring charges of incitement of racially motivated hatred (Article 282 of the Criminal Code) against Mr. A.I. due to absence of criminal actions.
On 28 June 2002, pursuant to the applicant’s complaint, this decision was quashed by the Kurgan Region Prosecutor’s Office.
On 12 July 2002 the district prosecutor’s office again ruled not to open criminal investigation against Mr. A.I.
In parallel to these proceedings, on 13 June 2002 the district prosecutor’s office ruled not to charge Mr. S.K. and Mr. A.I. with the incitement of racially motivated hatred in view of absence of criminal act. On 26 June 2002 this decision was quashed and remitted by the Kurgan Region Prosecutor’s Office.
In the new round of proceedings, the investigator questioned the applicant who confirmed his previous statements about Mr. S.K.’s and Mr. A.I.’s roles in the events. Several residents of Chastoozerye denied that they had been called to take part in the “disturbances” against the Chechens. Two local farmers denied that they had been threatened in relation to hiring Chechens, although one of them confirmed that he had received a phone call asking whether he did so. Several men who had gathered at the sausage factory on 18 May 2002 denied that they had been invited by anyone to come there. The head of the district administration confirmed that he had seen the RNE flyers prior to 18 May 2002, but he had not been aware of their origin and did not consider them to contain incitement to ethnic violence. On 6 August 2002 the district prosecutor’s office again ruled to close criminal proceedings against two men for absence of crime.
On 16 September 2002 this decision was quashed. In the new round of proceedings, the investigator additionally questioned several men who had gathered on 18 May 2002 at the sausage factory; all of them stated that they regularly came to Chastoozerye upon Mr. A.I.’s invitations to spend weekends together and that they had not been aware of any incitements to ethnic violence. They had not brought or saw any items which could have served as weapons, such as metal rods, baseball bats, and had not seen the RNE flyers at the factory premises. On 1 October 2002 the district prosecutor’s office ruled not to bring charges against the two men. As it appears, this decision was not appealed.
On 12 November 2004 the investigator of the police department of the Kurgan Region ruled not to open criminal proceedings in respect of unidentified persons. The decision was taken in response to the applicant’s representative’s letter claiming that the applicant’s injuries had been caused at the same time with incitement for ethnic hatred. The decision referred to the pending criminal investigation no. 96348 and the absence of information about the alleged perpetrators of that crime. It also referred to the absence of charges brought under Article 282 of the Criminal Code (incitement of ethnic or religious hatred) in the entire Kurgan Region in 2002-2004. It appears that this decision has not been appealed.
(j) Decisions not to bring charges against the SOBR servicemen
On 14 June 2002 the Chastoozerye district prosecutor’s office decided not to open criminal investigation into the actions of the SOBR officers. He referred to the results of the preliminary inquiry, according to which the actions of the policemen had been lawful; no one in the district had sought medical help on 19 or 20 May complaining about police violence; no individual complaints about the police’s actions had been lodged between 19 May and 12 July 2002.
On 28 June 2002 this decision was quashed by the Kurgan Region Prosecutor’s Office.
On 12 July 2002 the district prosecutor’s office again decided not to open criminal investigation concerning the policemen’ actions.
(k) The applicant’s attempts to appeal against the conduct of the investigation
On several occasions the applicant and his representative attempted to lodge complaints with the courts against the prosecutors’ failure to act diligently, under Article 125 of the Criminal Procedural Code. Some of his complaints were left without consideration due to alleged procedural irregularities or because the applicant had failed to indicate the investigators’ actions which he challenged.
Thus, on 30 May 2006 the Chastoozerye District Court rejected complaint about the failure of the district prosecutor’s office to maintain adequate supervision over the investigation of criminal case no. 96348. The court found that the prosecutor’s office had taken all possible steps to react to the applicant’s complaints and that the police investigator has taken all possible steps to identify the perpetrators of the crime, even if those steps had failed to produce a result.
Upon the applicant’s complaint, on 1 August 2006 the Kurgan Regional Court quashed the district court ruling and closed the proceedings. It found that the complaint could not be examined by the court on its merits because it failed to indicate the specific decisions and actions infringing the applicant’s rights. The district court was not competent to replace the prosecutor’s office and to give a general evaluation of the latter’s work in the sphere of supervision of criminal investigations. The complaint was thus dismissed without consideration.
3. Press reports and other relevant materials
The applicant submitted a number of copies of press articles and flyers concerning the described events. A copy of newspaper called “Natsionalnaya Mysl” (edited by the RNKA) no. 1(7) 2002 contained an article in which the events in Chastoozerye were described as just reaction of the local population “enslaved” and “occupied” by the “aliens from the Caucasus mountains”. The same newspaper contained an open letter to the Governor of the Kurgan Region signed by the head of the RNKA. It described the events in Chastoozerye as “the first call” of the “Russian protest” and invited the Governor to rely on the local Cossacks in order to maintain peace in the region.
Other publications described the events in Chastoozerye as a major ethnic clash between hundreds of armed men which was dispersed by the special police forces (“Ural-MK in Kurgan”, 20-27 June 2002; S, 21 June 2002).
Undated RNE flyer referred to the events in the following way:
“... one of the predators received a bullet, others were also well treated. ... 500 armed Men came out for a ‘talk’ with [200] mountainous judo-predators... [thus] raises the Orthodox Russian Dawn! Death to the imp! Hail to the heroes! Russian Order for Russia!”
COMPLAINTS
1. The applicant complains, under Article 2, that the State had failed in its positive obligation to protect him from a life-threatening attack. Referring to Osman v. U.K. (28 October 1998, Reports of Judgments and Decisions, 1998‑VIII), the applicant argues that the local authorities were aware of the existence of a real and imminent risk to the lives of the identified individuals and that they failed to take measures within the scope of their powers which, judged reasonably, could have avoided that risk.
2. Also under Article 2, the applicant submits that the Russian Federation had failed to take appropriate steps to investigate the attack on him.
3. Under Article 3, the applicant submits that the State had failed to take positive steps in order to prevent the attack on him. Referring to the cases of Cyprus v. Turkey ([GC], no. 25781/94, § 81, ECHR 2001‑IV) and Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 317, 382, 384‑85 and 393, ECHR 2004‑VII), he argues that the acquiescence or connivance of the authorities of the State in the acts of private individuals within its jurisdiction may engage the State’s responsibility, with regard to the subsequent behaviour of that State.
4. Under Article 3, the applicant argues that the positive obligation to investigate the attack has been breached. He argues that even though the investigation took certain steps aimed at elucidating the crime, it has failed to produce any tangible results in terms of identification and punishment of the perpetrators. The applicant points at other procedural defaults of the investigation, such as unauthorised corrections in the documents, insufficient precision in certain prosecutor’s orders and absence of certain documents in the case-file.
5. Under Article 13, the applicant complains about absence of effective domestic remedies against the alleged violations of Articles 2 and 3.
6. Finally, relying on Article 14 in conjunction with Articles 2 and 3, he argues that prejudice and hostile attitude towards persons of Chechen ethnicity have played a role in the attack and that the authorities have failed to investigate the racial motives of the crime.
QUESTIONS TO THE PARTIES
1. Has the applicant been subjected to ill-treatment, in breach of Article 3 of the Convention?
Has the Respondent State complied with its positive obligations to protect the applicant from ill-treatment by private individuals on 18 May 2002 (see, mutatis mutandis, Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001‑V; see also Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia, no. 71156/01, § 124, 3 May 2007)? In particular, were the local authorities, including police, sufficiently aware of the risk of such ill-treatment? Have the authorities taken measures which were in their powers and which could prevent such treatment?
2. Having regard to the procedural protection from torture and inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention?
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