FIRST SECTION
Application no. 37966/07
Dzhamula Makhmudovich ANTAYEV and Others against Russia
lodged on 20 August 2007
STATEMENT OF FACTS
The applicants (see below) are ten Russian nationals who live in the Vargashinskiy District, Kurgan Region. They are represented before the Court by lawyers of NGO Memorial Human Rights Centre practising in Moscow and in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are:
1. Dzhamula Antayev, born in 1953;
2. Malket Antayeva, born in 1965;
3. Ayub Antayev, born in 1982;
4. Suleyman Antayev, born in 1987;
5. Islam Antayev, born in 1992;
6. Gelani Vashayev, born in 1936;
7. Nura Eshiyeva, born in 1948;
8. Ayub Vashayev, born in 1980;
9. Akraman Vashayev, born in 1984;
10. Maryan Vashayeva, born in 1978.
The applicants originate from Chechnya. They are members of two families: the first and the second applicants are married and applicants three to five are their children; applicants six and seven are married and applicants eight to ten are their children. The Antayev family (applicants one to five) live in the Kurgan Region since 1979; the Vakhayev family (applicants six to ten) live in the Kurgan Region since 1998.
1. Events prior to 24 March 2006
The applicants submit that the relations between the Russian population and the Chechen community in the Kurgan Region (at the time of the events estimated by the applicants at about 6,000 persons out of about 1,076,000) 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).
On 8 March 2006 applicants three and eight had a fight with Mr A.B. in the settlement of Prosekovo. Third applicant was injured in the hand and Mr A.B. took him to the hospital. According to the applicants, both parties to the conflict decided not to apply to the authorities in this respect. The Antayev family asked Mr A.B. to pay them 50,000 roubles (RUB) as a settlement.
As it follows from subsequent documents, in March 2004 the Vargashinskiy District Department of the Interior (ROVD) questioned Mr A.B. about threats to his life by the applicants. The existence of such threats is denied by the applicants. In May 2007 Mr A.B. signed a statement to the Court submitting that he had been threatened [by the police] to lodge a complaint against the first applicant family.
On 24 March 2006 the investigator in charge of the case issued search warrants at both applicants’ families’ homes, referring to possible presence of firearms.
2. Search at the Antayev family home
On 24 March 2006 the first applicant family (applicants one to five) were at home at 4 Zarechnaya Street, Verkhnesuyerskoye settlement in the Vargashinskiy District. At about 1 p.m. three vehicles: minibus Gazel, black Volga and VAZ-99 arrived at their house. According to the applicants’, about 20 servicemen of various law-enforcement agencies got out of the vehicles. Some of them were wearing military uniforms and masks, others were dressed in civilian clothes. The applicants later identified Mr E.K. and Mr G. from the Regional Police Department of the fight with organised crime (UBOP), Mr. A.K., deputy head of the Vargashinskiy ROVD, Mr. P. and Mr U. from the Vargashinskiy ROVD. The UBOP servicemen carried automatic weapons and hand pistols. Mr P. was in charge of carrying the search.
According to the applicants, no search warrant or other document was produced by the police. Applicants four and five were in the courtyard; the policemen beat them there and said “Why don’t you go to Chechnya, to fight us there?”
The servicemen wearing masks and Mr E.K. entered the house. Mr E.K. grabbed the second applicant by the hand and pushed her towards the sofa in order to handcuff her; she fell on the floor and felt severe pain in her back. The first applicant was also beaten in his back and legs by Mr E.K.
The third applicant was in the house; he had his sweater pulled over his head and handcuffed; the servicemen beat him inside the house, then pulled him to the yard and beat him there in view of his brothers and then took him to the barn. According to the applicants,’ the third applicant’s pants were taken off and he was threatened that his genitals would be “pulled off with a wire”, he was then thrown into manure and beaten.
The servicemen mocked the third, fourth and fifth applicants saying that they would not be able to “give birth to more Chechens”. They also forced them to shout humiliating lines. They referred to the events in the village of Chastoozerye, where in 2002 two local residents of Chechen origin had been injured by unidentified persons (case Amadayev v. Russia, no. 18114/06).
The second applicant saw that the fourth applicant who had suffered from epilepsy was brought into the house and was lying on the floor; he was very pale. The second applicant was not allowed to give him medicine.
The search at the Antayevs’ house lasted for several hours. At some point Mr E.K. announced that he had found a cartridge from a gun. The second applicant alleges that she saw him take the cartridge out of his pocket.
The search record of 24 March drawn by the ROVD officers mentioned two witnesses and contained their signatures, as well as the third applicant’s signatures indicating that he had been informed of his rights and obligations prior to the search and after it had been completed. No remarks or objections were noted in the record. The record listed one cartridge for automatic gun calibre 7,62 millimetres which had been found in a drawer in the kitchen, 36 videotapes and eight items of printed materials in foreign language. The copy of the record is partly illegible, but it appears that after the discovery of the cartridge the third applicant, in the presence of two witnesses, stated that he had no knowledge of it.
After the search the first and third applicants were taken by the police to the local administration where they were questioned separately for about one hour. Then they returned home.
A relative of the Vakhayevs’ arrived from Kurgan and took the second, third and fourth applicants to the hospital.
According to the certificates issued by the Vargashinskiy district hospital in September 2007, the second applicant remained at the hospital between 24 March and 11 April 2006. She was diagnosed with “acute osteochondrosis [degenerative disc disease], two-sided lumbar-sacral radiculitis, post-traumatic coxalgia, hyper-tension of the II degree and stress condition”. The third applicant remained at the hospital between 24 March and 1 April 2006. He was diagnosed with “concussion of soft tissues of the thoracic-lumbar area”. The fourth applicant was examined on 24 March and left the hospital on 25 March 2006. He suffered from “concussion of soft tissues of the abdomen”.
The applicants argue that the extent of their injuries was graver and that the first and fifth applicant also suffered from beatings, however they were unable to obtain further medical evidence.
According to the certificate issued by the Kurgan Medical Centre of spinal trauma correction, the second applicant was treated there between 15 June and 6 July 2006. She was diagnosed with displaced fracture of the tail bone, resulting from fall on 24 March 2006. On 22 June 2006 the second applicant was successfully operated on her spine.
The applicants submitted their own statements to the Court dated August 2006 describing these events; they also referred to the documents submitted by them and collected during the criminal investigation. Gelani Vashayev’s son Mr Sh.V. who had taken the first applicant family members and then his own relatives to the hospital on 24 and 25 March 2006, also submitted a statement dated May 2007. Two journalists, Mr A.D. and the editor-in-chief of the district newspaper “Mayak” Ms G.P., submitted written statements dated April and May 2007, in which they described their futile attempts to obtain information from the police and the local hospital about the incident.
3. Search at the Vashayev family home
On 24 March 2006 at around 4 p.m. applicants eight and nine were returning home. At their house situated at no. 102 Belovo settlement, they saw a Gazel minibus, a Volga and a grey VAZ 09. In the courtyard of their house they saw about five persons, some of them wearing camouflaged military uniforms, masks and carrying automatic weapons. Other men were wearing civilian clothes and were armed with pistols. The men did not introduce themselves and did not produce any papers.
The men ordered two applicants to stand with their faces to the wall of the house and beat them. They told them that they should go back to Chechnya and other ethnically motivated insults.
The servicemen entered the house where applicants six, seven and ten stayed. The sixth applicant was handcuffed. The seventh applicant was told that she gave her sons a bad upbringing and that they should leave the village. During the search, the servicemen allegedly damaged the applicants’ property.
The search record of 24 March drawn by the ROVD officers mentioned two witnesses and contained their signatures, as well as the seventh applicant’s signatures attesting that she had been informed of her rights and the reason of the search prior to its commencement and that she had no remarks or objections at the end of it. The record listed one hunting gun and 17 cartridges. In relation to the gun and cartridges the seventh applicant explained that they belonged to her son Mr Sh.V. who had put them in his bedroom about five months before. In another bedroom there was found an unloaded hand pistol. In the clothes there were found two knives in cases, two pen-knives and two self-made knives. The seventh applicant gave no explanation about these items. Finally, 14 video tapes were collected.
The eighth applicant was then put in the Gazel vehicle and delivered to the Vargashinskiy ROVD. On the way there he was beaten in his groin with rifle butts and a rope was pulled around his neck. As a result of the strangulation, the eight applicant lost consciousness on several occasions. He was also insulted and told that he “would not be able to give birth to more Chechens”.
At the ROVD the eighth applicant was questioned and signed a statement about the events in Prosekovo, without access to medical or legal aid.
He was released at around midnight. Mr Sh.V. took him to the hospital. On 25 March 2006 an expert from the Kurgan Regional Forensic Bureau reported the following injuries on the eight applicant: extensive bruising on the back side of the head, caused by a blunt object and not entailing consequences for the applicant’s health; three circular bruises on the neck resulting from strangulation attempts, which had caused asphyxia resulting in loss of consciousness and haemorrhages in the eyelids, which should be regarded as serious injury.
The applicants submitted written statements by the eighth and ninth applicants produced in August 2006, testimony by their neighbour Mrs Ye.L. who had witnessed the beatings and insults administered to the eighth and ninth applicants on 24 March 2006. They also referred to the statement of the sixth applicant’s son, Mr Sh.V., mentioned above.
4. Criminal investigation into the attack and injuries
(a) Most important procedural steps
On 28 March 2006 the applicants lodged seven individual complaints with the Vargashinskiy District Prosecutor’s Office (“the district prosecutor’s office”). On 7 April 2004 the investigator of the district prosecutor’s office refused to bring any charges under Article 286 part 2 (a) and (b) (abuse of authority) due to absence of criminal event. Referring to the results of inquiry, the decision stated:
“On 24 March 2006, further to complaint lodged by Mr A.B., the Vargashinskiy ROVD opened criminal investigation under Article 119 of the Criminal Code [threat of murder]. Mr A.B. pointed at Ayub Antayev as the person who had committed the crime... Pursuant to internal regulations, on the same day the commanding officers of the ROVD transmitted this information to the UBOP of the Kurgan Region, because the suspect was of Chechen ethnic origin. In order to provide security during the investigative measures and for operative support, servicemen of the UBOP and special police forces from the Regional Department of the Interior were sent to the Vargashinskiy district. The personal data of the servicemen is at present classified.
The commanding officers took immediate investigative measures in the Prosekovo settlement, i.e. at the site of the crime. Immediately after that the investigator, upon agreement of the commanding officers of the ROVD, decided to proceed with the searches in the villages Verkhnesuyerskoye, at the residence of A. Antayev, and Belovo, at the place of residence of the second person involved in the murder threat to Mr A.B., A. Vashayev.
... the commanding officers and servicemen of the ROVD, UBOP and special police forces went to carry out the searches in villages Verkhnesuyerskoye and Belovo. Mr P. from the ROVD was in charge of the searches.
During the search in the Antayevs’ house, once the policemne had shown them the search warrant and offered to voluntarily submit unlawful items, Ayub and Suleyman Antayev mounted active resistance to the search and prevented examination of some pieces of furniture. For this reason, two servicemen of the special police force took them out into the courtyard and put them by the VAZ 2101 car, together with Islam Antayev. The servicemen of the ROVD and special police force and witnesses remained in the house and proceeded with the search, while the remaining special forces’ servicemen took positions around the house. No unlawful actions or physical violence have been applied by the servicemen against any members of the Antayev family. Towards the end of the search all members of the family moved freely around the house. All items collected during the search have been duly noted and sealed.
The search in the Vashayevs’ house in Belovo followed the same sequence, in line with the provisions of the Code of Criminal Procedure. Gelani Vashayev, his wife and daughter Maryan were inside the house, while Ayub and Akraman Vashayev were in the courtyard. ... No one of the Vashayev family members have been hurt by the police servicemen...
Thus, the applicants’ arguments about abuse of power by the police are disproved by the collected information. It follows from the written accounts produced by the servicemen of the Vargashinskiy ROVD, including senior officers, servicemen of the UBOP and the special police force. The servicemen’s explanations are consistent and non-contradictory. Each of them was questioned in relation to the actions of his colleagues which he had witnessed. No one pointed to any abuses of power by their colleagues, while pointing to the absence of motives for the alleged wrongdoing.
The witnesses who had been present during the searches also rebut the applicants’ arguments about abuse of power, including those who had stayed outside of the Antayevs’ house. Both witnesses moved around the Antayevs’ house freely and, given the layout of the premises, should have seen and heard the events in the courtyard. However, as it follows from the witnesses’ explanations, they had not noticed any unlawful conduct by the policemen.
[The conclusions of the forensic report issued by the expert of the Kurgan Regional Forensic Bureau] were overturned by a commission of the [same office] ... The commission described A.Vashayev’s injuries recorded on 25 March 2006 as “not entailing consequences for the applicant’s health”.
Based on the above, and also on the explanations given by servicemen of the ROVD as to the absence of injuries on Ayub Vashayev and other members of the Vashayev and Antayev family members following the policemen actions, the district prosecutor’s office critically assesses the forensic reports issued by expert of the Vargashinskiy district ... about beatings recorded for [applicants 1-5 and 8]. It is established with a sufficient degree of probability that the circumstances of these beatings are contradictory and [their] connection with the searches has been disproved during the inquiry.”
Pursuant to the applicants’ complaints, on 5 May 2006 the deputy to the Kurgan Regional Prosecutor opened criminal investigation file no. 388743 under Article 286 part 3 (a) of the Criminal Code (abuse of power committed with the use of violence or with a threat of use of violence). On the same date, both applicant families were informed accordingly.
On 12 May 2006 the district prosecutor’s office was put in charge of the case.
A number of investigative measures were then taken. They included questioning of the applicants and police servicemen who had participated in the searches, identity parades and confrontations, forensic examination of applicants one to five, six and eight. It also appears that these applicants were granted the status of victims in the proceedings. No copies of records of most of these steps were made available to the applicants, despite their requests. The dates of most of them are unclear.
The applicants submit that during the questioning they were threatened by the investigators, openly or covertly. The investigator refused to record certain statements, especially relating to the ethnic motives of the attacks. As no copies of questionings have been provided, it is impossible to see whether the applicants or their representatives have raised any objections to these records at the time when they were made.
On 5 July 2006 both applicant families wrote to the Kurgan Regional Prosecutor, seeking to obtain an update of the investigation of their complaints of racial insults and injuries.
On 17 August 2006 the first and second applicants complained to the Vargashinskiy prosecutor about the investigator’s bias. They referred to the threats issued by him to the victims. They also alleged that since the officers of the ROVD had been directly implicated in the imputed events, the victims were vulnerable against further abuses and asked to arrest the suspects.
On 24 August 2006 the district prosecutor’s office dismissed the applicants’ representative’s Mr G. Isakov’s motion to get access to the criminal case file.
In August and December 2006 the district prosecutor’s office carried out three confrontations between the applicants and police officers who had taken part in the searches. On 24 August 2006 the second applicant identified Mr E.K. as the person who had beaten her sons and husband and pushed her on the floor. Mr E.K. denied that he, or other servicemen, had used violence. He also denied that he had taken the gun cartridge out of his pocket, insisting that he had found it in a kitchen drawer. On 18 December 2006, after the confrontation with the second applicant, the applicants’ representative noted that the investigator had refused to put a number of questions to ROVD officer Mr U. and failed to record in full the second applicant’s statements about the beatings of her son.
On 23 November 2006 the district prosecutor’s office dismissed as unfounded the representative’s motion to change the investigator in view of the latter’s bias.
In June 2007 the district prosecutor’s office suspended the investigation, due to non-identification of the suspects. As it follows from this decision, all servicemen who had taken part in the searches had been identified and questioned. At least some of them were identified by the victims. The document further mentioned that the applicants’ statements given throughout the investigation had been inconsistent and that they had refused to take part in additional identifications and confrontations. The document concluded:
“The criminal case file contains sufficient evidence that [applicants 1-5, 6 and 8] were injured by police servicemen during the searches. However, given the inconsistencies in their later testimonies, one can not establish with certitude that the injuries have indeed been caused by certain serviceman and in the circumstances as described by the victims”.
(b) The applicants’ appeal to the district court
On 19 December 2006 the applicants’ complained against the actions of the district prosecutor’s office to the Vargashinskiy District Court, pursuant to Article 125 of the Code of Criminal Procedure. In their complaint the applicants indicated that the investigation had been opened with a delay, that it had failed to take into account the ethnic motives of the attack despite their consistent testimonies, that the investigator had demonstrated bias and threatened the victims, that their complaints to the district prosecutor’s office had remained futile, that they were not allowed access to most documents in the case file, that no one had been charged with any crime and that all servicemen implicated in the events had been questioned as witnesses. The applicants asked to oblige the prosecutor’s office to replace the investigator and to ensure proper supervision, as well as to review the complaints about the ethnic motives of the attack.
On 9 January 2007 the Vargashinskiy Distrct Court partially dismissed the applicants’ motion and partially refused to consider it on the merits. In respect of the applicants’ complaints about the prosecutor’s failure to ensure an investigation into the ethnic motives of the crime and the alleged bias of the investigator, the court found that these issues fell into the prosecutor’s professional discretion. The applicants appealed, referring in particular to the absence of investigation into the ethnic motives of the crime.
On 27 March 2007 the Kurgan Regional Court upheld the decision of 9 January 2007.
COMPLAINTS
1. The eighth applicant alleges that the attack on him amounted to a breach of Article 2, in view of the level of lethal force applied. He submits that the authorities have failed in their procedural obligation to investigate such attacks.
2. Applicants one to five, eight and nine complain that they were subjected to treatment in breach of Article 3 on account of the beatings and assaults they suffered during the searches in their homes. The remaining applicants argue that the distress and anguish suffered by them on the account of witnessing the severe ill-treatment of their family members has amounted to ill-treatment prescribed by Article 3.
3. The applicants argue that the authorities failed to carry out an effective investigation into the attack, under the procedural aspect of Article 3. They complain, in particular, about delay in opening the criminal investigation, about lack of access to the relevant documents and absence of opportunity to participate effectively in the proceedings. They argue that even though the investigation took certain steps aimed at elucidating the crime, it failed to produce any tangible results in terms of identification and punishment of the perpetrators.
4. Under Article 13, the applicants complain about absence of effective domestic remedies against the alleged violations of Articles 2 and 3.
5. Finally, relying on Article 14 in conjunction with Articles 2 and 3, the applicants argue 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 each of the applicants been subjected to treatment in breach of Article 3 of the Convention?
Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for the complaint under Article 3, as required by Article 13 of the Convention?
3. Have the applicants suffered discrimination on the ground of their ethnic origin, contrary to Article 14 of the Convention read in conjunction with Article 3, both in its negative and procedural aspects?
4. The Government are requested to submit a copy of the entire criminal investigation file no. 388743, complete with a list of documents contain therein. In addition and independently of the above, the parties are requested to submit all evidence related to the medical and forensic examinations of applicants one to five, six, eight and nine carried out in the aftermath of the events of 24 March 2006.
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