ASKHAROVA v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13566/02
by Larisa ASKHAROVA
against Russia

The European Court of Human Rights (First Section), sitting on 22 November 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 4 March 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 applicant, Mrs Larisa Askharova, is a Russian national who was born in 1964 and lives in the village of Serzhen-Yurt, Shali district, Chechen Republic. She is represented before the Court by lawyers of the Stichting Russian Justice Initiative, 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.

A. The circumstances of the case

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

1. Detention of Mr Sharani Askharov

(a) The applicant’s account

The applicant lived with her husband, Mr Sharani Askharov (born in 1956), at 106 Sheripova Street in the village of Serzhen-Yurt. The applicant is a housewife, and her husband was a lorry driver. Together they had two daughters, one of whom stays away from home for long periods of time for medical reasons. In the same courtyard there are five houses; the four others are owned by the applicant’s husband’s brothers and their families.

According to the applicant, early in the morning of 18 May 2001 a “sweeping operation” (зачистка) took place in Serzhen-Yurt. At about 5 a.m. a group of armed men wearing masks and dressed in camouflage broke into the applicant’s home and entered the room where the applicant, her husband and their 12-year old daughter were sleeping. The applicant was forced by a man armed with a sub-machine gun to stand against the wall in the hall, while other men held her husband down in another room. The applicant describes the men as well-built, tall and speaking unaccented Russian. One of them was, in her estimation, 40-45 years old. They did not introduce themselves, show any identification or ask anyone for identity documents, nor did they ask any questions. When the applicant asked them what they wanted and who they were looking for they told her to be quiet. The soldiers put a sack over Mr Sharani Askharov’s head and took him outside into the courtyard. The applicant was prevented from following. The applicant’s account of the events is supported by statements of three eyewitnesses.

The soldiers proceeded to another house in the same courtyard, and took out one of the applicant’s husband’s brothers, Mr Yunus Askharov. They pulled a T-shirt over his head and put him into an armoured personnel carrier (APC). They also detained a nephew of Mr Sharani Askharov, Mr Aslan Askharov, born in 1974.

Mr Yunus Askharov, who was later released, explained that his T-shirt was thin and that he could see that he was in the same APC as his brother Sharani. He tried to talk to his brother, but a sack was put over his head too, and the detainees were forbidden to talk and were beaten with rifle butts if they attempted to talk.

The neighbours later told the applicant that they had noted the hull numbers of two APCs that took part in the sweeping operation as 714 and 224. They also noted the plate numbers of the Ural military truck –76-46 VA. There were also other vehicles, at least two other APCs, but their number plates were obscured with mud.

The applicant submitted that in the same sweeping operation nine men had been detained in Serzhen-Yurt. Two of them, including the applicant’s husband, had disappeared. Mr Aslan Askharov, her nephew, had been found dead with bullet wounds later on 18 May 2001 at the edge of the village. Six others had been released on 18 and 19 May 2004, after having been subjected to interrogations accompanied by beatings and torture.

The applicant submitted written statements by Mr Yunus Askharov and Mr M. R., who were released on 18 May 2004. According to their statements, the APCs carrying the detainees drove for several hours. The men inside remained blindfolded and their hands were tied tightly behind their backs. On several occasions the vehicles stopped, the detainees were dragged out, beaten, tortured and then pulled back inside. Mr Yunus Askharov was asked questions about the Chechen fighters and their bases. At some point he heard his brother answering about himself that he was 46 years old and a truck driver. He therefore concluded that his brother was still with them. After one interrogation he heard someone say: “those – to the pit, those – to the car,” indicating a separation of the group. At about 2 p.m. five men, including Mr Yunus Askharov, were dumped in a field by an old petrol station between the villages of Serzhen-Yurt and Shali. Their hands were freed but they were told to lie still. After the military had left, the men freed themselves and Yunus realised that his brother Sharani was not among them. The detainees had been so severely beaten that some of them were unable to move. The next day Mr Yunus Askharov was admitted to Shali Hospital, where he remained for a month.

The applicant submitted copies of medical certificates issued to two other men detained on 18 May 2001: Mr M. S. and Mr M. R., whom the hospital doctors had diagnosed with concussion, fractured ribs, numerous bruises and haematomas to the face, neck, back and torso. Witnesses also testified that their teeth had been pulled out with pliers.

On the same day, on 18 May 2001, the applicant’s nephew, Mr Aslan Askharov, was found dead near the edge of the village with gunshot wounds. On 3 June 2001 a doctor of the Serzhen-Yurt medical station issued a death certificate for Mr Aslan Askharov: born in 1974, died on 18 May 2001 in Serzhen-Yurt of gunshot wounds.

Another person detained in Serzhen-Yurt on 18 May 2001, a 14-year old boy, was released the following day, on 19 May 2001. He told the applicant and her sister that he had been taken to a military base blindfolded, and that he had understood that the applicant’s husband and another man from their village, Mr A. S., were also there.

The applicant submitted several witness statements by her neighbours and by other men who had been detained on 18 May 2001 about the “sweeping” operation and about the treatment of the detainees.

The applicant and other members of her family have had no news of Mr Sharani Askharov since 19 May 2001.

(b) The Government’s account

The Government submitted that the Prosecutor General’s Office had established that on 18 May 2001 at around 6 a.m. unidentified persons in camouflage and masks, armed with automatic weapons and accompanied by armoured vehicles, had entered Serzhen-Yurt and apprehended Mr Sharani Askharov, Mr Yunus Askharov, Mr A. S., Mr M. S., Mr M. R., Mr Z. Z., Mr T. Z. and Mr R. Z. and had taken them to an unknown destination. On the same date Mr Aslan Askharov, who had been a member of an illegal armed group, had died in the village in unclear circumstances. On the evening of 18 May 2001 those apprehended had been released, with the exception of Mr Sharani Askharov and Mr A. S., whose whereabouts had not been established.

(с) Media and NGO reports

The applicant submitted two newspaper cuttings of May 2001. On 22 May 2001 the Moscow-based Kommersant published an article entitled ‘Khattab’s Friend and Dudayev’s Assistant are Killed’. The article said:

“In the Shali district of Chechnya the federal forces carried out a special operation directed against the leaders of bandit groups. Last weekend, during that operation in Serzhen-Yurt, Sharani Askharov was killed. According to intelligence information, he was a well-known explosives expert and a close friend of one of the extremists’ leaders, Khattab; he took the most active part in the activities of the illegal armed groups. In the same village the federal forces killed S., the chief of criminal police during the reign of Dudayev, who had maintained close ties with the current leaders of bandit groups”.

On 26 May 2001 the Moscow-based Nezavisimaya Gazeta published its regular update on the conflict in Chechnya, covering events between 12 and 25 May 2001. It reported that “on 19-20 May 2001 in Serzhen-Yurt, Shali district, there took place a targeted special operation, as a result of which Sharani Askharov, a well-known explosives expert and a close friend of Khattab, and Mr A. S., former chief of criminal police in Dudayev’s time, who had maintained ties with the current field commanders, were killed.”

In April 2002 the NGO Human Rights Watch issued a report entitled ‘Last seen... Continued disappearances in Chechnya’. It describes the sweeping operation in Serzhen-Yurt on 18 May 2001 and lists Mr Sharani Askharov as “disappeared”. It also describes the ill-treatment suffered by the other detainees who were later released.

2. Search for Mr Sharani Askharov and investigation

According to the applicant, she started looking for her husband immediately after his detention. She did so together with relatives of Mr A. S. For some days after 18 May 2001 the applicant, with Mr A. S.’s sister, went to Shali to be near the military commander’s office. After three days the women were informed by the commander that their relatives had been detained there for some time, but had then been demanded by a higher instance and transferred away. The commander did not tell them where the men had been taken.

On numerous occasions, both in person and in writing, the applicant applied to prosecutors at various levels, to the Ministry of Interior, to the administrative authorities and to public figures. In particular, she applied on 10 July 2001 to the Prosecutor’s Office of the Chechen Republic, on 3 October 2001 and 21 January 2002 to the Prosecutor General, and on 13 December 2001 to the Shali District Prosecutor’s Office. In her initial applications she stated the details of her husband’s detention, listed the hull numbers of the military vehicles that had participated in the operation, and asked for a criminal investigation into her husband’s abduction. In her subsequent applications she asked for an update on the progress of the investigation. The applicant received hardly any substantive information from official bodies about the investigation into her husband’s “disappearance”. On several occasions she was sent copies of letters by which her requests had been forwarded to different prosecutors’ services.

On 24 May 2001 a group of villagers of Serzhen-Yurt (over 50 persons) signed a petition to the Shali district temporary department of the interior (VOVD) administration, prosecutor and the military commander. They asked for the reasons for Mr Sharani Askharov’s detention to be investigated and for him to be released.

According to the Government, up to August 2001 the prosecuting authorities of the Chechen Republic had received no complaints from relatives of the persons abducted on 18 May 2001.

On 14 August 2001 the Shali District Prosecutor’s Office instituted criminal proceedings in case no. 23185 into the abduction of Mr A. S. His wife, Mrs I., was granted victim status on 20 August 2001.

On 30 August 2001 the Department for Legal Affairs and Military Liaison of the Chechen Government informed the applicant that her complaints had been transferred to the Chechen Department of the Interior for a search to be organised, and to the military prosecutor of military unit no. 20102 for a criminal investigation to be carried out.

On 15 October 2001 the Shali District Prosecutor’s Office instituted criminal proceedings in case no. 23261 regarding the abduction of Mr Sharani Askharov by a group of persons (Article 126 (2) of the Criminal Code).

On 16 October 2001 the Shali District Prosecutor’s Office informed the applicant that her husband’s abduction was under investigation in that office. The letter contained no other details.

On 19 October 2001 the military prosecutor of military unit no. 20102 informed the applicant that her letter had been sent to the military prosecutor of military unit no. 20116 based in Shali.

According to the Government, on 20 October 2001 the applicant was granted victim status in criminal proceedings no. 23261. She was questioned on the same date and stated that her husband had been taken from his home together with his brother, Mr Yunus Askharov, at around 6 a.m. on 18 May 2001 by persons wearing camouflage and masks. Later she had learnt that other villagers had been apprehended too, but except for her husband and Mr A. S. they had been released on the same day. She did not know the whereabouts of her husband or Mr A. S.

On 29 December 2001 the applicant was informed by the Shali District Prosecutor’s Office of the institution on 15 October 2001 of criminal proceedings no. 23261 regarding her husband’s abduction. The letter further informed the applicant of the name of the investigator in charge of the case and invited her to familiarise herself with the case file.

On 2 July 2002 the investigator of the Shali District Prosecutor’s Office issued the following progress report in the case no. 23261:

“On 18 May 2001 Mr. Sharani Vakhayevich Askharov, born in 1956, was detained and taken to an unknown destination by unidentified servicemen, during the conduct of a special operation, from his permanent residence at 106 Sheripova Street, Serzhen-Yurt, Shali district. So far his whereabouts have not been established. On 15 October 2001 the Shali District Prosecutor’s Office opened criminal investigation no. 23261 regarding this event, under Article 126 (2) of the Criminal Code. On 15 December 2001 the criminal investigation was suspended because the culprits could not be identified. Nonetheless the search for the abducted person continues.”

According to the applicant, she did not receive any further update on the investigation.

The Government submitted the following information concerning the progress of the investigation.

On 27 June 2005 criminal investigation no. 23261 regarding the abduction of Mr Sharani Askharov was joined with criminal investigation no. 23185 into the abduction of Mr A. S. and with a criminal investigation regarding the death of Mr Aslan Askharov.

On an unspecified date relatives of other persons apprehended on 18 May 2001 were questioned. They made statements similar to that of the applicant. Two women, Ms K. A. and Ms S. A, apparently relatives of Mr Sharani Askharov and Mr Aslan Askharov, stated that Mr Aslan Askharov had been a member of an illegal armed group. On 18 May 2001 he left the house, trying to hide from the people who had arrived in the village. Later they had heard shooting and in the evening his body had been found on the outskirts of the village.

On 17 January 2005 Mr Yunus Askharov was granted victim status. He was questioned on 17 January and 12 June 2005. According to the Government, he had been summoned for questioning on several occasions earlier but had failed to appear. Mr Yunus Askharov confirmed the circumstances of his abduction by unknown persons and submitted that he had been beaten by them, but that he would not be able to identify them. On the afternoon of 18 May 2001 the unidentified persons had left him and the other villagers on the outskirts of the village and they had returned home by themselves. Mr Yunus Askharov did not confirm that he had been tortured and that his teeth had been pulled out, nor did he confirm that he had been taken to the military base.

On an unspecified date Mr Yunus Askharov underwent a medical examination. According to the results of the examination he had sustained insignificant injuries (легкий вред здоровью).

Mr Z. Z., Mr T. Z. and Mr R. Z., questioned on an unspecified date, submitted that neither they nor Mr M. R. had been beaten following their abduction.

It appeared impossible to question Mr M. R. since he had left the Chechen Republic. However, his relative, Ms H. R., submitted that he had not had any injuries when he had returned home.

It also appeared impossible to question Mr M. S. since he had been absent from his place of residence. The results of a medical examination conducted on an unspecified date showed that he had sustained significant injuries (вред здоровью средней тяжести).

The investigation failed to establish the whereabouts of Mr Sharani Askharov and Mr A. S. The investigating authorities sent requests for information to competent State agencies on 2 and 11 November 2001, 30 April and 22 December 2003, and 23 December 2004. However, it was not established that servicemen had been involved in the offence. Neither Mr Sharani Askharov nor Mr A. S. had been held in either criminal detention or administrative detention facilities.

According to the information of the Ministry of the Interior, the Federal Security Service (FSB) and the United Group Alignment (UGA), no operations had been conducted in respect of Mr Sharani Askharov and Mr A. S. and they had not been detained. Vehicles which the applicant claimed had been used in the offence did not belong to the above authorities.

The investigation in case no. 23261 had been suspended a number of times on account of a failure to identify persons to be charged with the offence. The most recent decision on suspension of the investigation was quashed on 6 June 2005 and the investigation was taken up by the Shali District Prosecutor’s Office.

According to the Government, the applicant had been informed of all the suspensions and resumptions. The information published in Kommersant and Nezavisimaya Gazeta was being checked.

Despite a specific request by the Court, the Government did not submit a copy of the file in criminal case no. 23261. 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.

COMPLAINTS

1. The applicant submitted that the known circumstances of her husband’s detention and absence of any news from him since 18 May 2001 gave rise to a strong presumption that he had been extrajudicially executed by Russian servicemen, in violation of Article 2 of the Convention. She also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Mr Sharani Askharov, in violation of the procedural obligations under Article 2 of the Convention.

2. The applicant submitted that there was enough evidence to conclude that, following his detention, Mr Sharani Askharov had been subjected to treatment contrary to Article 3 of the Convention. She also complained that the authorities had failed to investigate the circumstances of the detention and possible ill-treatment of her husband, in violation of their procedural obligation under Article 3. Furthermore, she claimed that the anguish and distress suffered by her as a result of the disappearance of her husband and the lack of an adequate response on the part of the authorities amounted to treatment in violation of Article 3 of the Convention.

3. The applicant complained that the provisions of Article 5 as a whole, related to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Mr Sharani Askharov.

4. In her application form the applicant complained that she had been deprived of access to a court, contrary to the provisions of Article 6, because a civil claim for damages would entirely depend on the outcome of the criminal investigation into the disappearances. In her observations submitted after the application had been communicated to the respondent Government she withdrew the complaint. Accordingly, it will not be examined by the Court.

5. The applicant complained that she had no effective remedies as guaranteed by Article 13 in respect of the above violations.

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 investigation into the abduction of the applicant’s husband had not yet been completed. They also argued that it had been open to the applicant to file court complaints about the allegedly unlawful detention of her husband or, in accordance with Article 125 of the Russian Code of Criminal Procedure, to challenge in court any actions or omissions of the investigating or other law-enforcement authorities during the investigation; however, she had not availed herself of any such remedy.

The applicant disputed that objection. In her view, the fact that the investigation had been pending for six years with no tangible results proved that it was an ineffective remedy in this case. She further claimed that she could not effectively challenge actions or omissions of the investigating authorities because she had not been duly informed of its progress during the five years that it had been under way. Furthermore, those complaints that she had lodged remained unanswered. The applicant also contended that the Government had not demonstrated that the remedies to which they had referred were effective and, in particular, were capable of leading to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints under Article 2 of the Convention.

The Court considers that the question of exhaustion of domestic 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 objection to the merits.

B. Merits of the application

1. The applicant complained under Article 2 of the Convention of a violation of the right to life in respect of Mr Sharani Askharov 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 the circumstances of Mr Sharani Askharov’s disappearance were under investigation. It had not been established that he had died or that any State agents had been involved in his abduction. The investigation was in compliance with Article 2 of the Convention.

The applicant argued that it was beyond reasonable doubt that her husband had been killed by representatives of federal forces. He had been apprehended in the course of a special operation in Serzhen-Yurt on 18 May 2001 by masked armed men in military uniform with APCs that had only been used by federal forces. The applicant thus stressed that her husband had been apprehended in life-endangering circumstances and argued, relying on Article 2 of the Convention, that the fact that he had remained missing since 18 May 2001 proved that he had been killed. She further claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of her husband’s disappearance. The applicant argued that the investigation had fallen short of the requirements of domestic law and Convention standards. In particular, it had been pending for over six years but had not achieved any tangible results so far, having been repeatedly suspended and reopened.

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. The applicant complained that there were strong reasons to believe that her husband had been subjected to treatment in violation of Article 3 of the Convention. She also complained that the anguish and distress suffered by her as a result of her husband’s 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 investigation had been conducted in compliance with Article 3 of the Convention and had produced no evidence that either the applicant or her daughters had been subjected to treatment prohibited by the above Convention provision.

The applicant argued that her allegations of a violation of Article 3 in respect of Mr Sharani Askharov were supported by the fact that other men detained on 18 May 2001 who had subsequently been released had sustained serious injuries as a result of torture. She claimed that the Government had failed to produce any evidence that could refute her allegations. The applicant also maintained her complaint that she herself had been subjected to treatment contrary to Article 3 of the Convention because of the anguish and distress she had suffered as a result of her husband’s disappearance.

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 applicant complained that her husband had been deprived of his 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 there was no evidence that Mr Sharani Askharov had been deprived of his liberty in violation of Article 5 of the Convention.

The applicant contended that her husband’s detention did not fall into any of the exceptions provided for by Article 5 § 1 of the Convention. Moreover, although he had been detained by State agents, she had never been provided with any information about his whereabouts and, therefore, his detention should be regarded as unacknowledged.

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 applicant complained under Article 13 of the Convention that she had had no effective remedies in respect of the alleged violations 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 contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented her from using those remedies. The investigation into her husband’s disappearance was still pending. At the same time the applicant had not applied to the domestic courts with either civil claims or complaints concerning actions of the agents of the law-enforcement bodies. The Government enclosed copies of the domestic courts’ decisions over claims for pecuniary and non-pecuniary damage caused by offences committed by Russian servicemen in the North Caucasus Region.

The applicant contested the Government’s submissions. She contended that she had had recourse to the only potentially effective remedy, the criminal investigation. However, in her case it had proved to be ineffective, and the flaws of the investigation undermined the effectiveness of other remedies that might have existed, such as a complaint to a court concerning the prosecutor’s omissions. As to a civil claim, the Court has already found such a remedy ineffective in similar circumstances (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-22, 24 February 2005).

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.

For these reasons, the Court unanimously

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

Declares the application admissible, without prejudging the merits.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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