ARZU AKHMADOVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13670/03
by Arzu Abdulazimovna AKHMADOVA AND OTHERS
against Russia

The European Court of Human Rights (First Section), sitting on 10 January 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoli Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 4 September 2002,

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

Having deliberated, decides as follows:

THE FACTS

The applicants are:Ms Arzu Abdulazimovna Akhmadova, born in 1949;Ms Taisa Amadovna Kanayeva, born in 1962;Mr Sharfudin Saydkhasanovich Sambiyev, born in 1955;Mr Akhmat Khuseynovich Chagayev, born in 1952;Ms Kiisa Ibragimovna Minazova, born in 1957;Mr Salman Alaudinovich Magomadov, born in 1951;Mr Khasan Izuyevich Isambayev, born in 1953;Ms Zara Khabibullayevna Magomadova, born in 1979;Ms Luiza Magomedovna Mugayeva, born in 1966;Ms Ira Ilyinichna Dzuchkayeva, born in 1940;Ms Razet Zakayeva, born in 1939.

The applicants are Russian nationals and residents of the village of Stariye Atagi, Chechnya. They are represented before the Court by lawyers of the Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with a representative office in Russia. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

A. Apprehension of the applicants’ relatives

1. The applicants’ account

(a) Sweeping operation in Stariye Atagi

According to the applicants, from 6 to 11 March 2002 federal military officers, acting under the command of General Borisov, conducted a sweeping operation (зачистка) involving around 10,000 servicemen, 50 armoured personnel carriers (“APCs”) and several military helicopters in the village of Stariye Atagi. General Moltenskiy, the commander of the United Group Alignment (UGA) in the Northern Caucasus (командующий Объединенной группой войск на Северном Кавказе) visited the village twice during the operation.

Throughout the said period the military besieged Stariye Atagi and restricted freedom of movement in the village. They organised a filtering point at the poultry yard and the mill at the outskirts of Stariye Atagi where they held residents detained during the operation.

In total fifteen men residing in Stariye Atagi were apprehended between 6 and 11 March 2002. While some of them were subsequently released, eleven residents disappeared. The applicants are relatives of nine of those people. They submitted numerous statements by residents of Stariye Atagi who had witnessed the detention of the applicants’ family members.

The applicants also submitted that in 2000-2001 and in early 2002 the federal troops had detained several other residents of Stariye Atagi who subsequently disappeared.

(b) Detention of Mr Aslan Akhmadov and Mr Said-Selim Kanayev

The first applicant is the mother of Mr Aslan Akhmadov, born in 1979, who was a student at Grozny University. They and other relatives lived at 261 Nuradilova Street and were neighbours of the second applicant, who resided with her nephew, Mr Said-Selim Kanayev, born in 1983, and other family members at 9 Polevaya Street.

On 6 March 2002, between 11 a.m. and 1 p.m., Mr Aslan Akhmadov, Mr Said-Selim Kanayev and several other residents of Stariye Atagi were standing in the street when a group of masked and armed federal servicemen arrived in three APCs, two UAZ cars and an Ural vehicle. The APCs’ hull numbers were covered with mud and the vehicles’ registration plates were wrapped in a rag. The servicemen started beating Mr Aslan Akhmadov and Mr Said-Selim Kanayev without any explanation. Several women, including Mr Aslan Akhmadov’s seventy-five-year-old grandmother, attempted to intervene, but the military threw smoke bombs and fired in front of the women’s feet and above their heads.

According to the first applicant, while she was at home she heard women and children screaming and rushed into the street. She saw her son and Mr Said-Selim Kanayev on their knees with their hands behind their heads. Both of them were bleeding.

Then the military escorted Mr Aslan Akhmadov and Mr Said-Selim Kanayev to their houses. Without introducing themselves or producing any documents to justify their actions, the servicemen searched the houses and the courtyards. The first applicant inquired about the charges against her son, whereupon one of the soldiers replied that they were servicemen of the 405th regiment stationed in the village of Khatuni and had an order “to take away everyone they met on their way”.

According to the first and second applicants, the military promised to release Mr Aslan Akhmadov and Mr Said-Selim Kanayev in exchange for money. The Akhmadov family gave them 200 US dollars (USD), which Aslan Amkhadov’s grandmother had been saving for her funeral. One of the servicemen took the money and said into his radio transmitter: “Plus I have their son and money”. The Kanayev family them gave USD 300. Having received the money, the military nevertheless took Mr Aslan Akhmadov and Mr Said-Selim Kanayev away “for a computer check of their identities”. The first two applicants had no news of their relatives thereafter.

(c) Detention of Mr Amir Pokayev

The third applicant is the father of Mr Amir Pokayev, born in 1982. They lived with other family members at 91 Nuradilova Street.

On 6 March 2002, at around 12.30 p.m., three APCs, two UAZ cars and a UAZ armoured vehicle arrived at 91 Nuradilova Street. All the registration numbers were concealed. A group of about twenty servicemen entered the courtyard of the third applicant’s house. They were wearing masks and khaki uniforms resembling those of the Main Intelligence Department (Главное Разведывательное Управление) as well as those of the Federal Security Service (“FSB”, Федеральная Служба Безопасности) and its special units such as Alfa, Don and others. The servicemen had short Kedr machine-guns, Stechkin pistols, machine guns fastened to their legs and switchblade knives bearing the owners’ initials.

The military forced all the men of the third applicant’s family into the courtyard and checked their papers. The soldiers seized Mr Amir Pokayev’s temporary identity document and took it to one of the UAZ cars. Then they said that they would take the third applicant’s son with them so as to check his documents through a computer database. The military further stated that they would bring Mr Amir Pokayev back after the check, put him into the APC and left.

While his son was being apprehended, the third applicant talked to two officers. One of them introduced himself as Oleg and promised that Mr Amir Pokayev would be released as soon as the operation was over. According to the third applicant, he saw Oleg on TV on 9 and 12 March 2002 standing next to General Moltenskiy, who was giving an interview. The other officer’s surname was Tolstykin. The third applicant also saw him on TV in the news report on the military operation in the village of Uluskert. The third applicant submitted that he was able and willing to identify those two officers.

On 12 March 2002 the third applicant talked to another resident of Stariye Atagi, Mr R. D., who had been detained on 10 March 2002 and then released. The latter told the third applicant that he had been kept in the basement of the mill and had seen a note scratched on the ceiling to the effect that Mr Amir Pokayev had been held there. On his release Mr R. D. asked a security guard about the detainees who had been held in the basement before him. The guard replied that on 9 March 2002, at around 12 noon, the military had taken them away, having told the guard that they would be releasing them.

(d) Detention of Mr Islam Chagayev

The fourth and fifth applicants are husband and wife and live at 97 Nuradilova Street. They are the parents of Mr Islam Chagayev, who was born in 1982 and developed a disability during childhood. At the material time he worked in Nazran, the capital of neighbouring Ingushetia. On 4 March 2002 he came to Stariye Atagi for several days to visit his family.

On 6 March 2002, at around 1.30 p.m., the same servicemen who had detained Mr Amir Pokayev entered the Chagayev family house. They requested all the men to go outside. Then the military took Mr Islam Chagayev’s documents and escorted him into the street. The fourth applicant’s sister attempted to obstruct the detention of Mr Islam Chagayev, but the soldiers explained to her that she should not be afraid and that if her nephew was innocent he would soon be released. The military officers then put Mr Islam Chagayev into an APC which left in the direction of the mill.

Later that day the servicemen returned and searched the house. The next day, after throwing the Chagayev family belongings around and breaking them, they conducted another search.

The fourth and fifth applicants submitted that one of the officers in charge of the operation was the acting commander Zdanovich.

(e) Detention of Mr Ibragim Magomadov

The sixth applicant is the father of Mr Ibragim Magomadov, born in 1982, who was a student at the Economics and Management College.

On 8 March 2002, in the afternoon, a group of federal servicemen wearing camouflage uniforms forcibly entered the Magomadov family house at 19 Beregovaya Street. The sixth applicant, his wife and Mr Ibragim Magomadov were at home at the time.

The servicemen did not introduce themselves or present any documents authorising their actions and ordered the sixth applicant, his wife and Mr Ibragim Magomadov to raise their hands and step outside. Then they subjected each member of the Magomadov family to a body search and checked their identity documents.

One of the servicemen said into his radio transmitter that there were two men in the house, an old one and a young one. In reply he was ordered to take away the young one. According to the sixth applicant, the officer was around 25–32 years old and of Slavic appearance. Then another serviceman escorted Mr Ibragim Magomadov, who was wearing black jeans, a jeans shirt, a sports vest and shoes with thick soles, into the street and put him into an APC. This soldier was of Ossetian origin and about 19 years old. The sixth applicant submitted that he was able and willing to identify those two servicemen.

The sixth applicant and his wife tried to obstruct the detention of their son, but the military officers threatened them with their firearms. One of the servicemen injured his wife, who had attempted to follow the servicemen and her son. Later that day the military returned to the sixth applicant’s house. They were drunk and laughed in reply to the sixth applicant’s questions about his son.

(f) Detention of Mr Magomed Isambayev

The seventh applicant is the father of Mr Magomed Isambayev, born in 1981.

On 9 March 2002, at 8.30 a.m., about ten servicemen wearing camouflage uniforms and armed with machine guns entered the house of the Isambayev family at 53 Ambulatornaya Street. The seventh applicant, his wife and their six children, including Mr Magomed Isambayev and the seventh applicant’s brother, were inside at the time. Some of the servicemen were masked and none of them had shoulder stripes or any other marks of distinction. According to the seventh applicant, they spoke Russian without an accent.

The servicemen did not produce any documents justifying their actions or give any explanations. They woke Mr Magomed Isambayev up and ordered him to show them his identity documents. He explained that he had turned twenty last December and had not yet received the new passport that was due at that age. The servicemen then took the seventh applicant’s son with them, having reassured the other members of the Isambayev family that they would release him as soon as they had found out whether he was a local resident.

The seventh applicant and his wife attempted to follow Mr Magomed Isambayev, but the military did not allow them to leave the courtyard. The seventh applicant’s wife managed to see through the fence that the servicemen then visited three neighbouring houses and took her son to the courtyard of each of those houses. One of the neighbours, a police officer, told the servicemen that he had known Mr Magomed Isambayev since the latter’s childhood and that he had never been involved in any offence. It appears that the soldiers ignored this statement.

Thereafter two armoured UAZ vehicles and a car resembling an ambulance arrived. Their registration plates were either painted over or wrapped in a rag. The servicemen put the seventh applicant’s son into one of the vehicles and left.

(g) Detention of Mr Adlan Baysarov

The eighth applicant is the wife of Mr Adlan Baysarov, born in 1972, and the mother of their two minor children. At the material time Mr Adlan Baysarov, a resident of Grozny and a student at the Economics and Management College, was living in Stariye Atagi as an internally displaced person. The Baysarov family lived with their relatives, including the ninth applicant, who was the wife of Mr Adlan Baysarov’s cousin, in the premises of an abandoned hospital in Pochtovaya Street.

On 10 March 2002 the federal military officers arrived at Pochtovaya Street in three APCs and an UAZ car with tinted windows and entered the house in which Mr Adlan Baysarov and his relatives lived. The soldiers were wearing camouflage uniform and had helmets, portable radio transmitters and short machine guns. The ninth applicant believed that they represented special task forces.

The servicemen searched the house and forced Mr Adlan Baysarov to go outside for a check of his identity documents. The ninth applicant saw two or three servicemen talking to Mr Adlan Baysarov. They intimidated and threatened him, swearing at him. Then they put Mr Adlan Baysarov into an APC, which left an hour and a half later.

The ninth applicant submitted that she was able and ready to identify two officers who had apprehended Mr Adlan Baysarov. One of them had a moustache. She also submitted that on 11 March 2002 Mr G., the head of the administration of Stariye Atagi (председатель сельсовета), had stated that the surname of one of those officers was Suvorov.

(h) Detention of Mr Timur Khadzhayev

The tenth applicant is the mother of Mr Timur Khadzhayev, born in 1976.

On 10 March 2002, in the morning, a group of armed federal servicemen entered the courtyard of the tenth applicant’s house at 16 Shkolnaya Street. The tenth applicant, her other son, his wife and their three children, the tenth applicant’s daughter and Mr Timur Khadzhayev were in the house.

The military officers refused to introduce themselves and ordered the Khadzhayev men to step out into the courtyard for an identity check. The latter complied and produced their documents. The tenth applicant also furnished the military officers with a medical certificate confirming that Mr Timur Khadzhayev had a disability dating from his childhood which consisted in an impaired ability to move his left arm. The servicemen took the certificate as well as the Khadzhayev brothers’ identity documents. According to the tenth applicant, some of the servicemen were masked and they were mostly young, apart from the officer who checked the documents, who was middle-aged.

After the check the military escorted the tenth applicant’s sons to the courtyard of one of the neighbouring houses and ordered them to get undressed. The soldiers searched the Khadzhayev brothers and beat them. The tenth applicant screamed, asking the military why they were beating her sons. In reply, the servicemen ordered her to keep quiet, threatening to blow up her house. Thereafter they took the tenth applicant’s sons and two men who lived in the neighbouring house away. The tenth applicant referred to the account given by her neighbours, who stated that the Khadzhayev brothers were put into an APC. Some time later that day the tenth applicant’s other son returned home. He had been beaten. Mr Timur Khadzhayev has disappeared since that day.

During the detention of her sons the tenth applicant managed to talk to an officer who introduced himself as “Zhigan” and told her that he could be found in the military commander’s office (военная комендатура). After the sweeping operation was over, the tenth applicant visited the military commander’s office and inquired about “Zhigan”. She was told that he had already left and that he was a FSB officer.

(i) Detention of Mr Abdul-Naser Zakayev

The eleventh applicant is the mother of Mr Abdul-Naser Zakayev, born in 1965. They both lived at 14 Uchitelskaya Street.

On 10 March 2002, at around 3 p.m., Mr Abdul-Naser Zakayev was standing in the street when federal servicemen arrived in two APCs and an UAZ vehicle with tinted wondows. The APCs hull numbers were smudged and the UAZ car had no registration plates.

When the eleventh applicant’s son saw the military approaching, he entered the courtyard of one of the neighbouring houses. The servicemen followed him. They were wearing camouflage uniforms of the armed forces of Russia and had firearms. They spoke Russian. Some of the military had portable radio transmitters. Without introducing themselves or producing any documents to justify their actions, the servicemen threatened to use their firearms and ordered Mr Abdul-Naser Zakayev and two men who lived in that house to raise their hands and stand against the wall. The soldiers subjected the three men to a body search and checked their passports. Then they took Mr Abdul-Naser Zakayev away “for a computer check of his identity”.

(j) Other incidents in Stariye Atagi during the sweeping operation of 6-10 March 2002

On 6 March 2002 federal servicemen also detained two other residents of Stariye Atagi – Mr Ismail Dzhamayev, born in 1981 (see Dzhamayeva and Others v. Russia, no. 43170/04) and Mr Imran Kuntayev, born in 1976 – who subsequently disappeared. The disappearance of these two people does not form part of the present application.

On 7 March 2002 the residents of Stariye Atagi found five bodies in an abandoned house at 81 Nagornaya Street, at the outskirts of the village. According to the eyewitness statements, the house was burnt but there were no bullet holes or shell marks on the walls. The bodies were severely burnt, and only one of them was identified – as Mr Imran Kuntayev. It was impossible to identify the other corpses.

According to the ninth applicant, on 9 March 2002 the federal military officers seized a red VAZ 21099 car belonging to a resident of Stariye Atagi. The servicemen hitched the car, which was parked in the vicinity of the poultry yard, to an APC and towed it away.

The next day the villagers found the vehicle outside Stariye Atagi. It was burnt and flattened. There were three bodies inside. They had been burnt to a degree that made it impossible to identify them. The applicants submitted photographs of the destroyed car with the burnt bodies in it.

Before the operation was over, the federal military officers forced the council of elders and the head of administration of Stariye Atagi to sign a declaration to the effect that there had been no incidents during the operation.

On 13 March 2002, when the restrictions were lifted, the villagers brought all the unidentified corpses to Grozny. It appears that they did not manage to contact the authorities, and later that day they returned the bodies to Stariye Atagi.

On 14 or 15 March 2002 officers of the Grozny district office of the Interior (РОВД Грозненского района) took the corpses to the village of Tolstoy-Yurt intending to send them on to Mozdok for a forensic examination.

On 1 April 2002 D. an investigator from the Prosecutor’s Office of the Chechen Republic delivered the bodies back to Stariye Atagi. The corpses were wrapped in bags and were decomposed. They remained unidentified. D. explained to the villagers that the prosecutor’s office had insufficient funds to conduct the forensic examination of the corpses and that the refrigerators in the forensic examination department in which they had been kept had been out of order.

On 3 April 2002 the residents of Stariye Atagi buried the unidentified bodies.

2. The Government’s account

The Government confirmed that a sweeping operation had been conducted in the village of Stariye Atagi from 6 to 13 March 2002. The aim of the operation had been to find and arrest members of illegal armed groups who had abducted and killed four servicemen of the FSB on 12 February 2002.

On 7 March 2002, at around 2 p.m., a fight broke out between members of the illegal armed groups and federal servicemen in a house at 81 Nagornaya Street. As a result of the use of small-arms weapons and grenade dispensers, four members of the illegal armed group were killed. Since the house was set on fire, bodies were severely burnt; after an inspection by law-enforcement officers they were handed over to the local administration for burial.

On 9 March 2002 a group of servicemen was fired at from a car that was driving on the road between Grozny and Shatoy within three kilometres of Stariye Atagi. The servicemen fired back. The car was set on fire and the three members of illegal armed groups in it were killed. Their bodies were also severely burnt and handed over to the local administration for burial.

After the operation had been completed, village residents lodged applications concerning the apprehension and subsequent disappearance of eleven residents of Stariye Atagi, including nine of the present applicants.

B. The applicants’ search for their relatives

Immediately after their family members had been apprehended, the applicants started searching for them. Before the end of the sweeping operation, the search was mostly conducted by women since it was dangerous for men to be seen in the village.

Between 6 and 11 March 2002 the mothers and other women from the families of the apprehended persons repeatedly went to the poultry yard and the mill and inquired about their relatives. One of the servicemen confirmed that all the detained persons were being kept in the mill.

On 9 March 2002, in reply to a query by Said-Selim Kanyaev’s relatives, an officer of the rank of general, who introduced himself as Nikolay Artemovich (in the applicants’ opinion, General N.A. Kolbaskin), stated that he had delivered all the detainees to the police and the FSB.

On 11 March 2002 a representative of the federal military stated, in the presence of Mr G., the head of the village administration, that all the detainees had been taken to the village of Tolstoy-Yurt.

The applicants lodged numerous separate and joint applications with prosecutors of various levels, public bodies, including the President of Russia, regional administrative authorities, including a deputy of the State Duma, the Director of the FSB, the Head of the General Headquarters of the Armed Forces of Russia (начальник Генерального штаба Вооруженных сил РФ), and the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms (Специальный представитель Президента РФ по обеспечению прав и свобод человека и гражданина в Чеченской Республике). They also visited a number of State bodies. The applicants were supported in their efforts by various human rights NGOs such as the SRJI, Memorial and Human Rights Watch. In their letters to the authorities the applicants and the NGOs referred to the facts of the disappearance of the applicants’ relatives, provided a description of them, asked for assistance in searching for them, requested that the applicants be granted victim status and complained about the absence of any developments in the investigation and the lack of information on its progress. The applicants mainly received formal responses by which their requests were forwarded to various prosecutor’s offices for examination.

C. The official investigation into the disappearance of the applicants’ relatives

On 13 March 2002 the Prosecutor’s Office of the Grozny District (прокуратура Грозненского района) instituted a criminal investigation under Article 105 § 2 (a) of the Russian Criminal Code (murder of two or more persons) into the disappearance of 13 residents of Stariye Atagi, including the applicants’ relatives as well as Mr Ismail Dzhamayev, Mr Imran Kuntayev, Mr V. D. and Mr R. D., between 6 and 11 March 2002. The file was assigned the number 56031.

By decision of 13 March 2002 the Government of the Chechen Republic set up a commission for the investigation of the allegations of disappearance of residents of Stariye Atagi during passport checks.

On 15 March 2002 the Grozny Prosecutor’s Office granted victim status to Mr A. Kh., a brother of Mr Timur Khadzhayev and to Mr S. K., the father of Mr Said-Selim Kanayev, who were questioned on the same date.

Mr A. Kh. submitted:

“...[Mr] Timur Khadzhayev was my brother. He was a disabled person... He was not a member of any illegal armed groups. He had no job. He lived in Nazran as a refugee. He came [to Stariye Atagi to visit his family] on 4 March 2002...

On 19 March 2002, at around 10 a.m., armed men wearing camouflage and helmets rushed into our house through the orchard. One of them was wearing a black sports cap and a black uniform... At that moment my mother, my sister, my brother Timur and my wife with the children were in the yard. This man in black uniform took me and Timur outside the gates and checked our passports after which he took us to house no. 22... There [in the yard] they stood us with our face against the wall and made us stand with our legs apart. They put [Mr R. D.] and [Mr V. D.] alongside us. For an hour and a half they beat us all over our bodies. They did not ask any questions while they did this...

Then one of them, using the portable radio transmitter, asked for our personal details and, after he received a reply, said that everything was fine. They let the three of us go, but took my brother Timur. We still do not know anything about his fate. On the same day they took ... [Mr R. D.] and [Mr V. D.]. Then they let [Mr R. D.] go... and, according to rumour,[Mr V. D.] is being held in Chernokozovo. [Mr R. D.] says he does not know anything about my brother’s fate. I don’t remember whether [the armed men] called each other by their names. One of them, who was wearing a camouflage uniform and a helmet, had ... a scar across his nose. I could recognise him and the other one who was wearing a black uniform...”

Mr S. K. submitted:

“[Mr] Said-Selim Kanayev... is my son.

On 6 March 2002, at around 1 p.m., my son and [Mr] Aslan Akhmadov were taken away when they were in the yard of house no. 19 in Polevaya Street.

[Later] my son was escorted home and [the servicemen] searched our house but did not find anything. I was not at home during the search. When I learnt that my son had been apprehended, I went to the head of the village administration. When I returned home I learnt that... my wife had paid USD 300. It was Said-Selim who had asked for money in the amount of 10,000 roubles to be given to them. [H]e had said that he would then be released. His mother had given him the money. Then one of [the servicemen] had permitted my son to talk to his relatives. He had assured everybody that he would be released after the documents had been checked. Nevertheless, they had beaten him and taken him to the APC and had [then] taken him away with them. Since then I have not had any news of my son and I still do not know where he is.

On that day there were three APCs and other military vehicles in our street, including an Ural and a UAZ, in which, according to the residents, there was a general that was in charge of the operation in our village.

According to the eyewitnesses, ... the vehicles’ registration plates were deliberately covered with mud.

On 11 March, when the military convoy was leaving the village after the operation, the mother of [Mr] Aslan Akhmadov and some other women were standing on a bridge as the convoy passed by. They recognised several people in an APC as the ones who had taken my son Said-Selim and [Mr] Aslan Akhmadov away. They could remember the registration plates of two APCs: no. 225 and no. 207. Some of the servicemen who had apprehended my son and [Mr] Aslan Akhmadov were in those very APCs. One of them, who was the head of the group that had entered our house, I could identify by his height and features. My son was not a member of any illegal armed groups... He helped me at home...”

On 16 March 2002 victim status was granted to the first applicant, who was questioned on the same date. He submitted:

“...[Mr] Aslan Akhmadov is my son. He was a fourth-year student at the oil college. Throughout the whole year he studied full time and did not skip lectures. He came home two days before the “sweeping” operation and stayed at home. When he left home, he did not go far and always let me or his father know where he was going.

On 6 March, at around 11 a.m. or 12 noon, my son and [Mr] Said-Selim Kanayev were apprehended by servicemen of the Russian federal authorities in the yard of no. 19 Polevaya Street. The people who took them away were accompanied by three APCs, an Ural vehicle, a light grey four-wheel drive UAZ vehicle and a blue UAZ car. The vehicles’ registration plates were deliberately covered with mud...

I was at home and when I heard that my son and [Mr] Said-Selim Kanayev had been apprehended, I went to the street and saw [them] standing at the western side of the neighbours’ mosque with their hands against the wall. One of us was allowed to approach our sons. After a while five or six people surrounded my son Alsan and brought him to our home. Then Aslan told me that they wanted money in the amount of 10,000 roubles and that he knew that we did have this money. My mother-in-law entered the house and came out with USD 200 in two notes. She gave this money to the senior officer. She told him that she had saved this money for her funeral... The officer took the money and promised to let my son go after the documents had been checked. I could recognise this officer; he was around forty years old, about 1.90 metres tall, big and fat, and was wearing sunglasses and a black headscarf; he had a long thin nose. He did not give his name.

They put Aslan in an APC and took him away. In the evening [somebody] brought me his college record book that some women had found in Ambulatornaya Street. When Aslan was apprehended, he had the record book in his pocket together with his passport.

Since the day of Aslan’s apprehension, I and some other women have stayed [everyday] until evening ... near the filtration point. On 9 [March] I and some other women saw a red VAS-21099 car being removed from the territory of the filtration point. [I]t was hitched to an APC and taken down the road in the direction of the town. After the sweeping operation this car was found six or seven kilometres away from the village, 500 metres from the road. It was burnt and burnt bodies were in it. To date I have no information about my son and his fate. He was not a member of any illegal armed groups...”

On 18 March 2002 victim status was granted to the seventh applicant, to Ms R. P., the mother of Mr Amir Pokayev, to Ms L. K., a sister of Mr Imran Kuntayev, and to Ms Kh. D., a relative of Mr V. D.

The seventh applicant submitted:

“...On 6 March 2002 a “sweeping” operation started in Stariye Atagi. On 9 March, at 8.30 a.m., the servicemen who conducted the “sweeping” operation took my son, Magomed, away... I still do not know anything about his fate. When he was apprehended he had a birth certificate... with him. He was taken away in two grey UAZ four-wheel drive vehicles and a green UAZ-469 car. The people who took my son had firearms and were not wearing masks. I could recognise them. They did not find anything at our place. They asked for his personal details using the portable radio transmitter and said that he had to be apprehended... They treated us in a polite manner. They promised that they would check the houses and then let him go. Apart from him, nobody was taken from this street. We were not let in to the filtration point and I do not know whether he was taken there at all...”

Ms R. P. submitted:

“[Mr] Amir Pokayev was my son. On 6 March 2002 a “sweeping” operation started in our village. That day I was in Grozny and came back only in the evening. When I came home, I learnt that at around 1.30 p.m. servicemen had arrived in armoured vehicles with registration plates covered with mud, including three APCs, a green UAZ-469 car and a grey four-wheel drive UAZ vehicle. They had checked passports of all the men. They had kept my son Amir’s passport and when my husband had asked what they needed it for, they had explained that they had a computer in the car. There they would check [the passport] and then let [Amir] go. At the same time [Mr I. S.], my husband’s nephew, had been taken from his house and they had both been taken to the filtration point. According to [Mr I. S.], when they had reached [the filtration point], they had been placed in different APCs, following which [Mr I. S.] had been taken to [the filtration point]. He did not know anything about my son’s fate. According to my husband, the name of the person who had taken our son away was Oleg. [O]n 9 March at 6 p.m. “Oleg” was shown in the TV programme Vesti next to the UGA commander Moltenskiy. [My husband said] that [Oleg] was wearing a moustache and that he recognised him at once, as well as some other people. All the servicemen who had took my son away were armed with Stechkin guns, machine guns with short barrels and other weapons, some of them had armoured shields.

On 10 [March] [Mr R. D.], who lived at Shkolnaya Street, was also apprehended and held at the mill. In the pit [he was held in] he saw an inscription “[M.] and Amir were here]”.

My son had nothing to do with members of illegal armed groups; he was repairing his car together with his father and was helping me at home. When they took him away he was wearing a black polo-neck, blue jeans, a beige sweater and dark blue trainers...”

On 5 April 2002 the local administration of Stariye Atagi (местная администрация села Старые Атаги) issued the applicants with a certificate confirming that their relatives had been apprehended and taken away by federal military officers between 6 and 11 March 2002 and had then disappeared.

On 7 April 2002 the Prosecutor’s Office of the Chechen Republic answered the Memorial’s request stating that on 13 March 2002 a criminal investigation had been instituted under Article 105 § 2 (a) of the Russian Criminal Code into the disappearance of 13 residents of Stariye Atagi, including the applicants’ relatives, between 6 and 11 March 2002. The letter also stated that:

“On 9 March 2002, at around 1 p.m., four burnt corpses of unknown persons had been found in the mosque of Stariye Atagi. An ensuing investigation established that on 7 March 2002, at around 1 p.m., fighting had broken out between servicemen and members of illegal armed groups in the courtyard of the house at 81 Nagornaya Street. Both parties opened heavy fire using various kinds of firearm, missile, grenade and grenade launcher with the result that the house was burnt down. On the same day, at around 6 p.m., ... the local residents found and apparently took to the mosque four corpses of unknown persons bearing signs of a violent death. The identification of those persons is being conducted in the context of the criminal proceedings in case no. 56028 instituted by the Prosecutor’s Office of the Grozny District under Articles 317, 30, 105 § 2 (a) and (e) of the Russian Criminal Code.

On 9 March 2002, at around 3 p.m., a VAZ 21099 vehicle approached a checkpoint of military unit 3179 situated about 4 km away from the outskirts of Stariye Atagi on the road between Chechen-Aul and Stariye Atagi. In response to [the servicemen’s] order to stop the car and produce identity papers, shots were fired from the car. During the shoot out four passengers were killed and the car was burnt. During the examination of the vehicle the remains of a AKM machine gun, a hand grenade launcher and RGD-5 grenades without fuses were found and seized. In this connection, on 12 March 2002 the Prosecutor’s Office of the Grozny District initiated criminal proceedings in case no. 56030 under Article 317 of the Russian Criminal Code. The identities of the persons killed in the car have not yet been established.”

The applicants alleged that the VAZ 21099 car referred to in the letter was the one seized by the federal military on 9 March 2002.

On 13 May 2002 the Prosecutor’s Office of the Grozny District suspended the criminal proceedings in case no. 56031 on account of the failure to establish the identity of the culprits.

On 26 June 2002 the Prosecutor’s Office of the Chechen Republic quashed the decision to suspend the investigation. On 17 July 2002 the case was taken up again by the Prosecutor’s Office of the Grozny District.

In its letters of 18 July 2002 the Prosecutor’s Office of the Chechen Republic notified the first and ninth applicants and Mr Said-Selim Kanayev’s mother that on 13 March 2002 criminal proceedings in case no. 56031 had been brought in connection with the disappearance of their relatives and that the preliminary investigation had been resumed on 22 June 2002 and was now in progress.

On 25 July 2002 the Prosecutor’s Office of the Grozny District informed the military prosecutor of military unit no. 20102 that the preliminary investigation in criminal case no. 56031 had established, inter alia, that the servicemen who had detained Mr Said-Selim Kanayev had travelled in APCs with hull numbers 225, 207 and 313, and requested, in this connection, to verify to what detachment and military unit those APCs belonged, the person or persons who had been in charge of the operation and the persons who had formed the crew of the said vehicles.

On 21 August 2002 the military prosecutor of military unit no. 20102 informed the applicants that their allegations that their relatives had disappeared during the sweeping operation in Stariye Atagi had been investigated and that criminal proceedings in criminal cases nos. 14/33/0184-02 and 14/33/0185-02 had been instituted in connection with the combat between the servicemen and the members of the illegal armed groups and as regards the discovery of four bodies bearing signs of a violent death in a burnt car on the road from Chechen-Aul to Stariye Atagi. The letter continued as follows:

“The preliminary investigation established that on 9 March 2002, during the special operation in the village of Stariye Atagi, the servicemen of military unit no. 3228 under the command of Senior Lieutenant Z. were checking vehicles going out of the village of Stariye Atagi, since, in accordance with intelligence received, members of illegal armed groups stationed in Stariye Atagi were planning a break-through on this road.

At around 3 p.m. a VAZ-21099 car approached the servicemen of military unit no. 3228 under the command of Z. In reply to the servicemen’s order to stop, machine-gun fire was opened from the car. The servicemen opened return fire with the result that the car started burning. Subsequently three burnt corpses of unidentified persons were found in it.

On 18 May 2002 the criminal proceedings brought in connection with the servicemen’s use of firearms were discontinued...

The preliminary investigation in case no. 14/33/0185-02 established that on 7 March 2002, at around 1 p.m., in the courtyard of the house at 81 Nagornaya Street, in the course of the operation to locate and detain members of illegal armed groups, fighting had broken out between the servicemen of military unit no. 3228 under the command of Major V. and rebel fighters (boyevik), the latter hiding in the house and having opened machine-gun fire. The servicemen inflicted fire damage, using, inter alia, RPG-26 weapons with the result that the house caught fire. During the ensuing examination of the house four burnt bodies were found, one of whom was identified by [Ms K.] as her brother, [Mr] Imran Kuntayev.

On 10 May 2002 the criminal proceedings brought in connection with the servicemen’s use of firearms were discontinued...

Accordingly, no involvement on the part of the servicemen in the abduction of [the applicants’ relatives] has ever been established ...”

On 9 October 2002 the Prosecutor’s Office of the Grozny District sent the case file to the military prosecutor of military unit no. 20102 for investigation. The case file was given the number 34/33/0657-02.

By a letter of 14 October 2002 the military prosecutor of military unit no. 20102 replied to a query of the SRJI concerning the search for Mr Said-Selim Kanayev. It stated that, upon the termination of the special operation in the village of Stariye Atagi, the head of the administration, Mr G., signed a statement to the effect that he had no complaints in respect of the servicemen, but lacked information as regards six residents of Stariye Atagi, including Mr Said-Selim Kanayev. The letter went on to say that the investigating authorities had inspected the scene of the crime and questioned the relatives of the missing persons on several occasions so as to verify the version that residents of the village, including Mr Kanayev, had been among the members of the illegal armed groups killed during the combat. However, the identities of the persons killed during the combat had not yet been established. The letter further stated that the allegations to the effect that the servicemen who had detained Mr Said-Selim Kanayev had claimed money for his release were unfounded, and that – according to the information provided by the Chechen Department of the FSB (Управление ФСБ РФ по Чеченской Республике) – Mr Said-Selim Kanayev had been a member of an illegal armed group. Finally, the letter re-stated the events of 7 and 9 March 2002 concerning the combat between the federal servicemen and the alleged rebel fighters as this had been described in the letter of the military prosecutor of military unit no. 20102 dated 21 August 2002.

On 25 October 2002 the military prosecutor of military unit no. 20102 replied in a similar vein to a query by the NGO Human Rights Watch relating to the identification of the remains found in Stariye Atagi during the sweeping operation of 6 – 11 March 2002. The letter stated, in particular, that there was no evidence to confirm that the federal military had detained the six residents of Stariye Atagi listed in the statement of the head of administration and that, according to the Chechen Department of the FSB of Russia, Mr Said-Selim Kanayev and Mr Aslan Akhmadov had participated in the activities of illegal armed groups.

On 26 October 2002 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to establish the identity of the culprits. The decision read, in particular:

“During the period from 6 to 10 March 2002, in the course of a special operation in the village of Stariye Atagi, unidentified servicemen abducted thirteen residents of the village: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, [V. D.], [R. D.], N. Zakayev.

Upon the completion of the operation on 13 March 2002 [V. D.] and [R. D.] were released. The whereabouts of the other residents of Stariye Atagi who were apprehended has not been established...

In the course of the investigative actions ... person(s) who had committed the offence were not identified...”

Relatives of the disappeared persons were notified of the decision to suspend the investigation.

In its letter of 11 November 2002 the Prosecutor’s Office of the Chechen Republic informed the OSCE assistance group (Группа содействия ОБСЕ в Чечне) that criminal proceedings had been initiated on 13 March 2002 in connection with the disappearance of the applicants’ relatives and an investigation was currently under way.

On 14 December 2002 the Military Prosecutor’s Office of the UGA quashed the decision to suspend the investigation for the following reasons:

“The decision was unfounded since in the course of the preliminary investigation not all the investigative measures aimed at identifying persons involved in the disappearance of the named residents of Stariye Atagi were taken. [In particular,] the military units that had conducted the special operation in the village were not identified, the commanders of these units were not questioned, the persons who had conducted a check and apprehended the [disappeared residents] were not identified. Therefore, the preliminary investigation should be reopened.”

On 23 December 2002 the case was taken up again by the military prosecutor of military unit no. 20102. Relatives of the disappeared persons were notified of the reopening of the investigation.

On 23 January 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision to suspend the investigation.

By letter of 18 March 2003 the military prosecutor of military unit no. 20102 replied to the query lodged by the SRJI on the applicants’ behalf and stated that in the file of criminal case no. 56031 opened in relation to the abduction of the applicants’ relatives there was no indication that the federal servicemen had been involved in the alleged offence.

On 2 April 2003 the military prosecutor of military unit no. 20102 notified the SRJI that the case file of the investigation instituted in connection with the disappearance of the applicants’ relatives had been returned to the Prosecutor’s Office of the Chechen Republic, as the military prosecutor had no competence over the case in the absence of evidence of the military personnel’s involvement in the alleged offence.

On 24 April 2003 the SRJI requested the Prosecutor’s Office of the Chechen Republic to grant the applicants victim status and inform them of the latest developments in the case.

On 26 June 2003 the military prosecutor of military unit no. 20102 quashed the decision of 23 January 2003 and reopened the investigation. Relatives of the disappeared persons were notified of the reopening.

On 27 July 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision.

On 7 August 2003 the SRJI sent a request to the Military Prosecutor’s Office of the UGA. The request read as follows:

“From 6 to 11 March 2002 a special operation of the federal forces was conducted in the village of Stariye Atagi. In the course of the operation representatives of the federal forces apprehended and took to an unknown destination the following residents of Stariye Atagi: A. P. Akhmadov, S.-S. Kanayev, A. Sh. Pokayev, I. A. Chagayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev...

Upon the completion of the operation six unidentified bodies were found in Stariye Atagi. On 14 or 15 March 2002 officers of the Grozny District Office of the Interior took the unidentified bodies away. On 1 April 2002 investigator [U. D.] of the Prosecutor’s Office of the Chechen Republic brought the decomposed bodies back to Stariye Atagi. He told the residents of the village that the bodies had been brought from Mozdok where they had allegedly had to be identified by means of a forensic medical examination. However, no examination had taken place because, according to [U. D.], the refrigerators in the bureau of forensic examination had not been working and, furthermore, the prosecutor’s office had not had sufficient funds for the examination. After that the residents of Stariye Atagi buried the bodies in a common grave.

...[w]e ask you:

- to grant victim status to [the close relatives] of the disappeared persons and to provide them with copies of the [relevant] decision;

- to provide us with an update of the investigation;

- to inform us whether relatives of the persons apprehended during the special operation in Stariye Atagi between 6 and 11 Match 2002 and other eyewitnesses had been questioned;

- to order exhumation of the remains of the unidentified bodies buried by the residents of Stariye Atagi in a common grave and refer them to a forensic examination in order to identify them.”

On 29 October 2003 the Military Prosecutor’s Office of the UGA quashed the decision of 27 July 2003 to suspend the investigation on the ground that the whereabouts of unspecified witnesses had been established which required further investigative actions. Relatives of the disappeared persons were notified of the reopening.

On 1 December 2003 the Military Prosecutor’s Office of the UGA informed the second applicant that the involvement of servicemen in the abduction of the missing persons had not been established. It was also stated that all questions concerning the investigation should be addressed to the Grozny District Prosecutor’s Office.

On 9 December 2003 the FSB Department in the Chechen Republic informed the first, second and tenth applicants that it had no information about the whereabouts of A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev or A. N. Zakayev. They had neither been placed on a wanted list nor suspected of unlawful activity. They had not been detained by FSB officers either.

On 17 January 2004 the Military Prosecutor’s Office of the UGA granted victim status to the tenth applicant.

On 16 February 2002 the Ministry of the Interior informed the second applicant that since March 2002 its officers had not conducted any special operations in Stariye Atagi and had not detained any of the village’s residents.

On 19 March 2004 the Military Prosecutor’s Office of the UGA suspended the investigation. The decision read:

“During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group as well as the search for four servicemen of the FSB who had gone missing.

The special operation was headed by the Deputy Commander of the UGA Major-General G. S. Borisov.

At around 2 p.m. on 7 March 2002 fighting broke out with members of illegal armed groups in Nagornaya Street. Servicemen of the units Alpha and 1 pSpN (1 пСпН) were involved in the fight. The scene of the fighting was blocked by servicemen of the unit 48 PON (48 ПОН). As a result of the fighting six members of the illegal armed group who had resisted with arms were killed. [Their] bodies were severely burnt [and were not] identified.

On 8 March 2002 in Stariye Atagi servicemen of the units 1 pSpN, 348 and 349 OBON (348 и 349 ОБОН) killed two members of an illegal armed group, E. B. and Z. S., who had resisted them with arms.

At around 4 p.m. on 9 March 2002 in Stariye Atagi servicemen of the unit 1 pSpN killed three members of the illegal armed group who were in a car and resisted with arms. [Their] bodies were severely damaged and burnt [and were not] identified.

During the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted [the following] residents of Stariye Atagi: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev.

Taking into account that the term of the preliminary investigation has expired and that investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].”

Relatives of the disappeared persons were notified of the decision to suspend the investigation.

On 22 May 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly.

On 22 June 2004 the Military Prosecutor’s Office of the UGA again suspended the investigation. The decision read:

““During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group as well as the search for four servicemen of the FSB who had gone missing.

According to the materials from the case file, at around 2 p.m. on 7 March 2002 fighting broke out with members of illegal armed groups in Nagornaya Street. Servicemen of the FSB and the military unit 3179 were involved in the fighting. The scene of the fighting was blocked by servicemen of military unit 3656. In the course of the fight six members of the illegal armed group were killed. [Their] bodies were severely burnt. No measures were taken to identify them.

On 8 March 2002 in the same village servicemen of military units 3179, 6779 and 6780 killed two members of the illegal armed group, E. B. and Z. S., who had resisted them with arms.

At around 4 p.m. on 9 March 2002 in Stariye Atagi servicemen of military unit 3179 killed three members of the illegal armed group who were in a car. [Their] bodies were severely damaged and burnt. No measures were taken to identify them.

At the same time, according to applications and statements by residents of Stariye Atagi, during the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev.

In the course of the investigation the bodies of the members of the illegal armed groups buried in the cemetery of Stariye Atagi were exhumed and body tissuetaken from them; blood samples were taken from relatives of the abducted persons. According to the medical opinion no. 52/2004, the forensic (molecular-genetic) expert examination showed that the remains found at the cemetery belonged to I. A. Chagayev, A. Sh. Pokayev, S.-S. Kanayev, I. Dzhamayev, A. P. Akhmadov and I. S. Magomadov...

Taking into account that the term of the preliminary investigation has expired and that investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].”

Relatives of the disappeared persons were notified of the decision to suspend the investigation. It appears, however, that they were not provided with copies of the expert reports.

On 6 November 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly.

On 6 December 2004 the Military Prosecutor’s Office of the UGA suspended the investigation again. Apart from restating the facts set out in the decision of 22 June 2004, the decision also contained the following information:

“According to the FSB, Akhmadov and Zakayev were members of an illegal armed group, and the sister of [Mr] Kuntayev, a resident of Stariye Atagi, ... had been trained for a terrorist suicide attack and in the beginning of October 2003 had left for an unknown destination in order to commit an act of terrorism as a “kamikaze”.”

Relatives of the disappeared persons were notified of the decision.

On 10 January 2006 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation on the following grounds:

“In the course of the investigation significant discrepancies between statements by residents of Stariye Atagi and servicemen concerning the detention of the [disappeared] persons and their possible death as a result of the fighting on 7 and 9 March 2002 ... were not resolved. Witness statements in this regard were not duly verified and recorded.

The investigating authorities did not take comprehensive measures in order to establish the specific places where the bodies of A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev, and I. S. Magomadov, who, according to their relatives, had been apprehended together with the other residents of the village, had been found.

Up until now the whereabouts and the fate of other residents of Stariye Atagi who have been missing since the operation was conducted in March 2002 have not been established.

In such circumstances the decision to suspend the preliminary investigation should be quashed and the investigation resumed.”

The Government submitted that the case was being investigated by the military prosecuting authorities and that the case file had been given no. 34/00/0014-03. They further noted that the case file contained conflicting statements by the residents of Stariye Atagi and federal servicemen who had participated in the special operation and in the fighting with the members of illegal armed groups. At the same time some of the residents living next to 81 Nagornaya Street confirmed that there had been fighting with members of illegal armed groups who had resisted the servicemen.

The applicants submitted that they had no information about any results of the investigation. The tenth applicant also submitted that her requests for a confrontation with the representatives of the federal armed forces had remained unanswered and that the investigating authorities had never questioned her son and daughter who had witnessed the apprehension of Mr Timur Khadzhayev.

Despite a specific request by the Court, the Government did not submit a copy of the file in criminal case no. 56031 (at present no. 34/00/0014-03), having provided only copies of decisions to suspend and resume the investigation and to grant victim status and of the records of the interviews held in March 2002. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”.

D. Alleged harassment of the applicants

On 22 April 2004 the SRJI informed the European Court of Human Rights about the killing of the third applicant’s other son, Anzor Pokayev. According to the information submitted by the third applicant, on 10 April 2004 a group of about fifty armed servicemen had entered his house in Stariye Atagi and taken his son away without any explanation. The next day Anzor Pokayev’s body was found at the outskirts of the village with multiple gunshot wounds.

On 26 April 2004 the Court, in accordance with Rule 40 of the Rules of the Court, gave notice of the application and the above episode to the Russian Government.

On 3 June 2005 the SRJI notified the Court that on 31 May 2005 a large group of federal servicemen had arrived in ten UAZ cars and several armoured UAZ vehicles at the first applicant’s house in Stariye Atagi. According to eyewitness statements, about 100 military officers surrounded and then searched the first applicant’s house and seven neighbouring ones, producing no search warrants. The military had camouflage uniforms and spoke Russian.

Having entered the first applicant’s house, the military ordered the first applicant’s husband, Mr Pavel Akhmadov, to lie down and pointed their rifles at him. The first applicant’s youngest son, Mr Rustam Akhmadov, was forced to stand against the wall. The first applicant and other residents attempted to find out the reasons for the servicemen’s actions, but the latter ignored their questions.

The servicemen had photographs of the first applicant’s third son, Mr Magomed Akhmadov, a student at Grozny University, who was away at that time, and seized some more from the applicant’s house. They compared the photographs and repeatedly asked the local residents about Mr Magomed Akhmadov’s distinguishing marks. After the search the military left. The whole operation lasted for three hours and was well organised.

On the same day the military stopped and searched a student shuttle bus running between Stariye Atagi and Grozny. According to the statements of the students who were in the bus at that time, the servicemen inquired about Mr Magomed Akhmadov and asked where he could be found. Following those events, the first applicant’s son, Mr Magomed Akhmadov, had to leave his home in Stariye Atagi and was unable to go to Grozny University to take his final exams in June 2005, fearing for his security.

In view of the seriousness of the allegations, on 3 June 2005 the Court invited the Russian Government to submit comments on the SRJI’s letter.

On 24 June 2005 the Government submitted a reply prepared by the Prosecutor General’s Office stating that on 31 May 2005 the federal servicemen had conducted a search for members of the illegal armed groups who had participated in a clash that had taken place in Stariye Atagi on 18 May 2005. During the search the servicemen came to the first applicant’s house and inquired where the other members of her family were and whether any members of the illegal armed groups were hiding at her house. According to the Government, the first applicant herself decided to show a photograph of her son to the servicemen and suggested that she bring him to the local police station upon his return from Grozny, but the servicemen insisted that he was not the person they were looking for. They were polite and did not ask any questions concerning the Court.

On 19 July 2005 the SRJI furnished the Court with the first applicant’s comments and a number of witness statements, including those of the first applicant’s daughter. The first applicant stated that on 10 June 2005 a group of servicemen and officers of a district prosecutor’s office arrived at her house and interrogated her about the events of 31 May 2005. According to the first applicant, in the group there were several servicemen who had raided her house on 31 May 2005. They asked her why she had complained to higher instances, why she had indicated that there had been persons of Russian origin and whether anybody had been beaten or anything had been stolen from her. According to the first applicant’s daughter, Mr Magomed Akhmadov managed to take his final exam on 11 June 2005.

COMPLAINTS

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of their family members. The applicants submitted that the circumstances of their relatives’ disappearance and the long period during which their whereabouts could not be established indicated that they had been killed by the federal forces. The applicants further submitted that the respondent State had failed to fulfil its positive obligations under Article 2 of the Convention and to protect their relatives’ lives. Lastly, the applicants complained under this head that no effective investigation had been conducted into the disappearance of their family members.

2. Referring to Article 3 of the Convention, the applicants complained that their relatives had been subjected to torture and inhuman treatment during their apprehension and in custody. They further complained that no effective investigation had been conducted in this respect. Under this head the applicants also submitted that they suffered severe mental distress and anguish in connection with the disappearance of their close relatives and because of the State’s failure to conduct a thorough investigation in this respect. In their observations submitted after the application had been communicated to the respondent Government the applicants withdrew the complaint in the part related to the alleged ill-treatment of their relatives. Accordingly, this part of the complaint will not be examined by the Court.

3. The applicants submitted that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of their family members who had disappeared.

4. The applicants complained under Article 6 § 1 of the Convention that under national law they were barred from lodging a civil claim to obtain compensation for their relatives’ unlawful detention or death pending the outcome of the criminal investigation. In their observations submitted after the application had been communicated to the respondent Government they withdrew the complaint. Accordingly, it will not be examined by the Court.

5. The applicants alleged that there were no effective remedies in respect of their complaints under Articles 2, 3 and 5, contrary to Article 13 of the Convention.

6. The applicants invoked Article 14 in conjunction with Articles 2, 3, 5 and 13 of the Convention, stating that the above violations had occurred because of their Chechen ethnic origin and residence in Chechnya.

7. The applicants alleged a breach of Article 1 of the Convention on account of the respondent State’s failure to secure their Convention rights and those of their missing relatives.

8. Having regard to the incidents which allegedly took place in 2004-2005, the first and third applicants complained, in substance, that the respondent Government had failed to comply with their obligation not to hinder their right to individual petition.

THE LAW

A. The Government’s objection as to the exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the applicants had failed to challenge either before a higher prosecutor or a court any actions or omissions of the investigating authorities during the investigation, as provided by Chapter 16 of the Code of Criminal Procedure. Furthermore, the applicants had not lodged a claim for compensation for non-pecuniary damage under Articles 1067-69 of the Civil Code.

The applicants disputed that objection. They maintained that they had exhausted all domestic remedies which could be adequate and effective. The applicants submitted that the criminal-law remedies invoked by the Government were not effective in the Chechen Republic. They pointed out that applicants in other cases raising similar issues had lodged complaints under Article 125 of the Code on Criminal procedure, but that these had been to no avail. The applicants further argued that the civil-law remedies relied on by the Government could not be considered effective since their outcome would depend on the results of the criminal investigation.

The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults, still less to establish their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others, cited above, § 77). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies. The objection in this regard is thus dismissed.

The Court considers that the question of exhaustion of domestic criminal-law remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this part of the objection to the merits.

B. Merits of the application

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of their family members and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government submitted that, according to the medical opinion, four bodies found at the scene of the fighting between servicemen and members of illegal armed groups on 7 and 9 March 2002 had had traces of gunshot wounds. It had not been possible to establish the cause of death of the other persons since their bodies had been severely burnt. In the course of the investigation bodies of the members of illegal armed groups who had been killed in the fighting had been exhumed. According to the expert opinion, some of the bodies were those of A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev and I. S. Magomadov. The whereabouts and the fate of five other residents of Stariye Atagi who had gone missing since the operation conducted in March 2002 had not been established.

The Government maintained that the established circumstances of the illegal armed groups’ members’ resistance to federal forces did not exclude the possibility that A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev and I. S. Magomadov, whose bodies had been found at the scene of the fighting and identified, had been killed as a result of the use of the necessary force in accordance with Article 2 § 2 (a) and (b) of the Convention. As regards M. Isambayev, A. Baysarov, T. Khadzhayev and N. Zakayev, until their whereabouts or the fact of death were established, any assertions were premature.

A criminal investigation into the disappearance of the residents of Stariye Atagi had been opened promptly on 13 March 2002 and complied with Article 2 of the Convention. The investigating authorities had carried out a large amount of work. The investigation was complicated by the need to eliminate discrepancies between the witnesses’ statements concerning the underlying events, especially since some of them resided in different regions, as well as by the complexity of expert examinations and tests. Nevertheless, the investigation was under way and no final procedural decision had been taken.

The applicants reiterated their allegations that their family members had been unlawfully apprehended by representatives of the State. They disagreed with the Government’s statement that lethal force might have been used against those of their relatives whose bodies had been identified because they had resisted servicemen. The applicant insisted that, on the contrary, their family members had been apprehended by servicemen and taken away from their homes. However, they made no comments as to the fact that their relatives’ remains had been found in the grave where members of illegal armed groups killed on 7 and 9 March 2002 had allegedly been buried. As regards the missing persons whose bodies had not been found, in the applicants’ view the fact that they had remained missing for over four years proved that they had been killed.

The applicants also claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of the disappearance of the applicants’ family members. They argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for over four years without any tangible results so far, having been repeatedly suspended and reopened. They further noted that only five out of the eleven applicants had been granted victim status in the proceedings. Therefore, the other six applicants had not had even a formal opportunity to have access to the information concerning the investigation. The applicants argued that their right to be informed of the progress of the investigation had been violated, in particular, by the State’s refusal to submit the investigation file to the Court. They further submitted that they had no information about the investigating measures that had been taken by the authorities. In particular, they had no information as to whether the investigating authorities had identified and questioned all witnesses to the unlawful detention of their relatives, including servicemen who had participated in the special operation in Stariye Atagi. They claimed that the authorities had thus failed to properly verify the circumstances of the events as presented by the applicants.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Referring to Article 3 of the Convention, the applicants complained that the anguish and distress suffered by them as a result of their family members’ disappearance and the authorities’ reaction amounted to treatment in violation of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submitted that the perception of the events was a subjective factor dependent upon the individual emotional characteristics of each person. Therefore, the investigating authorities were not in a position to assess the alleged moral suffering of the applicants. However, should the investigation establish that a person had suffered non-pecuniary damage, the person would be granted victim status and could lodge a civil claim for damages. The first, sixth, seventh and tenth applicants and the husband of the second applicant had been granted victim status in criminal proceedings. However, they had not applied to court with a claim for damages.

The applicants maintained their complaint that they had been distressed by the disappearance of their close relatives. The authorities’ indifference – reflected, in particular, in the failure to properly inform the applicants of the progress of the investigation – aroused in them feelings of helplessness and inferiority. Furthermore, since the disappearance of their family members the applicants had been living in fear for their own lives and the lives of their other relatives.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants complained that their family members had been deprived of their liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government submitted that in the circumstances of the case and in view of discrepancies between the witnesses’ statements it was not possible to make any final conclusions as regards the alleged breach of Article 5 of the Convention.

The applicants contended that their close relatives had been arbitrarily deprived of their liberty in violation of Article 5 of the Convention. They contended that none of the grounds provided in Article 5 were applicable to the detention of their family members.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicants complained under Article 13 of the Convention that they had had no effective remedies in respect of the alleged violations of Articles 2, 3 and 5 of the Convention. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submitted that the prosecuting authorities regularly informed the international community and representatives of the Council of Europe of the progress and results of the investigation in criminal cases concerning crimes committed in respect of residents of the Chechen Republic. According to the statistics provided by the Government, since the beginning of counter-terrorist operations in Chechnya, the military prosecuting authorities had opened a criminal investigation in 161 cases. 128 cases had been committed for trial. 118 servicemen had been convicted and sentenced to lengthy terms of imprisonment depending on the gravity of the offences.

According to the Government, the fact that a criminal investigation in the present case had been opened and was under way demonstrated that the applicants did have effective domestic remedies in respect of their complaints. Furthermore, the applicants could lodge a civil claim for damages. Therefore, there was no breach of their rights under Article 13 of the Convention.

The applicants argued that in their case the State had failed to conduct an adequate investigation into the disappearance of their family members, which undermined the effectiveness of other possible remedies. They considered that the Government’s failure to submit a copy of the case file corroborated their allegation that the investigation had not been effective.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. The applicants invoked Article 14 in conjunction with Articles 2, 3, 5 and 13 of the Convention, stating that they had been discriminated against in the enjoyment of their Convention rights on account of their Chechen ethnic origin and residence in Chechnya.

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submitted that the ongoing investigation provided no evidence to support the applicants’ allegations in that regard.

The applicants reiterated their complaint and contended that the alleged violations had been committed because of their ethnic origin.

The Court observes that no evidence has been submitted in its possession that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated. Accordingly, this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. The applicants alleged that Article 1 of the Convention was breached by the respondent State’s failure to secure their Convention rights and those of their missing relatives. Article 1 of the Convention reads as follows:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

The Court observes that Article 1 of the Convention enshrines the general obligation of the States parties to ensure within their jurisdiction the observance of substantive rights guaranteed by the Convention. Article 1 of the Convention comes into play in disputes concerning the State’s jurisdiction. It can also be invoked in conjunction with the substantive Convention provisions, in particular, where the State’s compliance with positive obligations is in question. However, it cannot be the subject of a separate violation of the Convention, since it does not confer any substantive rights in addition to those guaranteed by Articles 2 – 14 of the Convention.

Therefore, in so far as the applicants alleged a separate breach of Article 1 of the Convention, this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

7. Having regard to the incidents which allegedly took place in 2004-2005, the first and third applicants complained that the respondent Government had failed to comply with their obligations under Article 34, the relevant parts of which provide as follows:

“The Court may receive applications from any person ... claiming to be the victim of a violation ... of the rights set forth in the Convention ... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government submitted that the ongoing investigation provided no evidence to support the applicant’s allegations in this regard.

The first applicant reiterated the complaint; the third applicant did not.

The Court notes that the third applicant did not maintain his allegations in relation to this application. At the same time, the events alleged by him are the subject of a separate application, Sambiyev and Pokayeva v. Russia, no. 38693/04 lodged before the Court. Accordingly, it will examine them in relation to that application.

The Court decides to adjourn the examination of this complaint in the part related to the first applicant until the examination of the merits of the application.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaint concerning the State’s compliance with its obligations under Article 34 of the Convention;

Decides to join to the merits the Government’s objection concerning exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 3, 5 and 13 of the Convention;

Declares inadmissible the remainder of the application.

André WampachChristos Rozakis
              Deputy RegistrarPresident

 

Full & Egal Universal Law Academy