Communicated on 1 April 2014
FIRST SECTION
Application no. 44279/10
Magomed Osmanovich AUSHEV and
Magomed Maksharipovich AUSHEV against Russia
lodged on 27 July 2010
STATEMENT OF FACTS
The first applicant, Mr Magomed Osmanovich Aushev, is a Russian national who was born in 1981. The second applicant, Mr Magomed Maksharipovich Aushev, is a Russian national who was born in 1985. The applicants are cousins. They both live in the village of Surkhakhi in the Ingushetiya Republic. They are represented before the Court by the lawyers of the Memorial Human Rights Centre, having its registered address in Moscow.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Events of June 2007 and related investigation
In the early morning of 17 June 2007 a large group of officers of the Ingushetia Republic Department of the Federal Security Service (“the local FSB”) surrounded the first applicant’s house and started firing machine guns and grenade launchers at the house. The first applicant’s cousin RA. was shot.
The first applicant was put by force in a white Gazel minivan and a black plastic bag was put on his head. He was then driven to a police or FSB office, probably in Vladikavkaz in the neighbouring Severnaya Osesetiya-Alaniya Republic. Although he could not see the road they took, he heard his kidnappers present themselves as FSB officers when they passed a checkpoint on the border between the two regions and he then heard people speaking Ossetian in the police or FSB office where he was brought.
The FSB officers tortured the first applicant by electric current applied to his toes. They hanged him by his arms and hit his heels with truncheons. They also forced him to eat an unidentified substance of square shape, claiming that it was a meat pie. Afterwards the officers brought him to a forest, forced him into a dug hole and threw earth on him. They then put a bulletproof jacket on him and fired two shots at his chest.
All that time, the officers threatened to kill the first applicant and stated that they had already killed a many like him. They told him that the only way to stay alive was to agree to cooperate with the FSB. The first applicant ultimately agreed to cooperate and signed an undertaking, dated several days earlier, to immediately inform the FSB about his cousin RA.’s arrival. He also signed a fake receipt for 35,000 Russian roubles (RUB), allegedly received for his cooperation with the FSB. The first applicant was then given a telephone number and instructed to call to arrange for a meeting two days later. The officers threatened to kill him and all his brothers if he did not call as planned.
Afterwards the FSB officers put a black plastic bag on the first applicant’s head and drove him back. He was ultimately released in the vicinity of his village.
On 18 June 2007 the first applicant complained about ill-treatment to the Ingushetiya Republic prosecutor’s office. In particular, he communicated to the prosecutor the telephone number given to him by his kidnappers.
On 22 June 2007 the prosecutor’s office ordered an expert medical examination of the first applicant.
On the same day the first applicant was examined by a medical expert who noted an abrasion on his forehead and bruises on his nose, shoulder and knees.
On an unspecified date the Nazran District Investigations Committee was charged with an inquiry into the first applicant’s allegations of ill-treatment. The Investigations Committee questioned four of the first applicant’s neighbours who stated that early in the morning of 18 June 2007 [sic.] they had heard numerous fire shots and had seen the applicant’s house surrounded by men in military uniform armed with submachine guns. One of the witnesses stated that he had seen an armoured personnel carrier. After the men had left several hours later, the neighbours had gathered in front of the first applicant’s house which had been completely destroyed. They had learned that the military had taken with them four of the men leaving in the house, including the first applicant. One of the witnesses stated that he had seen the men in military uniform putting the first applicant in their minivan and driving him away.
By letter of 27 November 2007, the investigator of the Nazran District Investigations Committee informed the applicant’s representative A. that the inquiry had established that on 17 June 2007 the local FSB office had conducted a search in the applicant’s house, duly authorised by the head of the local FSB office.
On 30 December 2007 the Nazran District Investigations Committee decided to forward the case to the Chechen Republic Investigations Committee. It found that the same persons had allegedly ill-treated the first applicant in Chechnya in September 2007 and that criminal proceedings had been opened into that incident (see below). It was therefore the Chechen Republic Investigations Committee that had territorial jurisdiction over the case.
It appears that the case was afterwards referred back to the Nazran District Investigations Committee.
On 30 January 2008 the Nazran District Investigations Committee refused to open criminal proceedings into the first applicant’s allegations of ill-treatment. It found that none of the witnesses had seen the FSB officials ill-treating the first applicant. Nor had the first applicant produced any medical certificates showing traces of ill-treatment. There was therefore no evidence of ill-treatment.
By letter of 7 June 2007 the Nazran District prosecutor’s office informed A. that it had requested the Nazran District Investigations Committee to reconsider the decision of 30 January 2008 and to conduct an additional inquiry.
On an unspecified date the decision of 30 January 2008 was annulled and the case was transferred to the Military Investigations Committee of military unit no. 68799.
The Military Investigations Committee conducted an additional inquiry. One of the officers of the local FSB who had taken part in the special operation of 17 June 2007 was questioned. He stated that during the duly authorised search in the first applicant’s house he had heard fire shots coming from the attics. The FSB officers had fired back. An explosion had been heard immediately afterwards. It had been later established that RA. who had been hiding in the attics had opened fire at the FSB officers. He had been shot by their return fire. After finishing the search, the FSB officers arrested three of the men leaving in the house and brought them to the local FSB office. The men had been released immediately after the questioning. The witness denied that the first applicant had been arrested or that any of the arrested men had been ill-treated.
The head of the local FSB confirmed the arrest of three men on 17 June 2007. He stated that the first applicant had not been arrested.
On 11 February 2009 the Military Investigations Committee of military unit no. 68799 refused to open criminal proceedings into the first applicant’s allegations of ill-treatment. It found no evidence of ill-treatment.
A. challenged the decision of 11 February 2009 before a court. He submitted, in particular, that the inquiry had been superficial. The Investigations Committee had not established the owner of the telephone number given to the first applicant by his kidnappers. Nor had it taken into account the medical expert report describing the first applicant’s injuries. The finding that there was no evidence of ill-treatment had been based exclusively on the testimony by the FSB offices.
On 8 June 2009 the Military Court of the Vladikavkaz Garrison found that the decision of 11 February 2009 had been lawful. The Investigations Committee’s finding that there was no evidence of ill-treatment had been justified in view of the materials contained in the case-file.
On 27 August 2009 the Military Court of the North Caucuses Command quashed the decision of 8 June 2009, finding that the inquiry into the first applicant’s allegations of ill-treatment had been incomplete. In particular, the first applicant had not been questioned, the owner of the telephone number given to him by the kidnappers had not been established and the medical expert report describing his injuries had not been taken into account.
On 7 October 2008 the Military Investigations Committee of military unit no. 68799 annulled the decision of 11 February 2009 and ordered a further inquiry.
On 8 October 2009 the Military Court of the Vladikavkaz Garrison discontinued the examination of the first applicant’s complaint against the decision of 11 February 2009 because the that decision had been annulled.
On 20 January 2010 A. asked the Military Investigations Committee of military unit no. 68799 for information about the results of the additional inquiry.
Having received no reply, on 31 March 2010 A. complained to the Military Court of the Nalchik garrison about the Military Investigations Committee’s failure to conduct an additional inquiry and to inform him of its results. It appears that he received no reply.
B. Events of September 2007 and related investigation
On 18 September 2007 the applicants took a taxi to return from Grozny, the Chechen Republic, to their home village in the Ingushetiya Republic. In the suburbs of Grozny they were stopped at the “Chernorechye” checkpoint by men in camouflage uniforms. The men pulled the applicants out of the taxi, put them separately into two cars and drove in the direction of Ingushetiya. The applicants’ T-shirts were pulled over their heads and they were hit with fists and butts of guns and kicked. The men told to the first applicant that he would be punished for breaking his June 2007 agreement to cooperate with the FSB, for complaining about kidnapping and ill-treatment to the prosecutor’s office and for telling his story to the media. They also stated that the second applicant had been taken as an accidental witness. The men also burned the applicants’ passports, driving licences and cell phones claiming that they would not need them anymore because they had been “condemned”.
About a half an hour later they arrived in a village where the applicants were handed over to the same men who had kidnapped the first applicant in June 2007. The applicants were brought to a house and the men started to torture the first applicant with electricity, stating that it was a punishment for his refusal to cooperate.
The applicants were then locked in the basement. They were put in separate concrete cells measuring about 3 or 4 sq. m. The cells had no windows. They were very cold, were flooded with water and swamped with rats. There were traces of blood on the walls. The applicants remained in their respective cells for about two days. They were not given any water or food. The kidnappers came regularly down to ill-treat them. They kicked them and hit them with fists and butts of guns. They threatened to torture them with electricity, to cut their ears and legs and to kill them. The applicants heard screams coming from other rooms in the house where other people were tortured at the same time. One of those persons was brought to the second applicant’s cell and slaughtered before his eyes. On the second night of their stay in the basement, the applicants were taken out of their cells. Plastic bags were put on their heads and were tightly fixed with an adhesive tape so that they had difficulty to breathe. The kidnappers then put them in a car and told them that they would be shot.
While in the car, the second applicant heard the kidnappers arguing about who would do the dirty work of killing them. After about an hour and a half one of the kidnappers received a telephone call. The second applicant understood that his kidnappers were very angry about that call. The car turned abruptly and about twenty minutes later it stopped. The applicants were transferred to another car. About an hour of driving later, they arrived at the Shatoyskiy police station. The plastic bags were removed. At the police station the applicants were told that they were now in safety, were given water and food and were allowed to call their relatives. Several hours later they were picked up by their relatives and brought home.
On 21 September 2007 the applicants were examined by a forensic medical expert. It follows from the expert report in respect of the first applicant that he had abrasions on the right ankle and on the left flank and bruises on the left eyelid, right cheekbone, left ankle and the chest. The applicants were not given a copy of the expert report in respect of the second applicant.
On 25 September 2007 the applicants complained about ill-treatment to the prosecutor of the Chechen Republic.
On 8 October 2007 the Investigations Committee of the Zavodskoy District of Grozny opened criminal proceedings into the applicants’ allegations of ill-treatment.
On an unspecified date the applicants were granted victim status.
On 7 November 2007 the investigator and the second applicant visited the village of Goity of the Urus-Martanovskiy District of Chechnya. The second applicant recognised the building in which he had been held in September 2007. That building officially belonged to the Urus-Martanovskiy police.
On an unspecified date the criminal proceedings were suspended.
On 24 June 2009 the applicants’ representative A. asked the Zavodskoy District Investigations Committee for copies of documents from the case file. He enclosed document confirming that he had been commissioned by a bar association to represent the applicants.
By letter 2 July 2009 the head of the Zavodskoy District Investigations Committee rejected the request, stating that the applicants had not informed him about being represented by A.
A. challenged the refusal to provide copies of documents before the Zavodskoy District Court of Grozny.
On 8 October 2009 the Zavodskoy District Court rejected A.’s complaint. It found that the applicants had participated in all investigative measures and had been shown all related documents. They had never asked for copies. Nor had they told to the investigator that they had a representative. The court further noted that the investigator had questioned the applicants, their relatives, the taxi driver and the officers of the Shatoyskiy police station, the Urus-Martanovskiy police station and the Goity police station. Those measures had not permitted to establish the identity of the kidnappers and the investigation had been therefore suspended.
A. received a copy of that decision on 4 January 2010. He immediately appealed.
On 29 January 2010 the Supreme Court of the Chechen Republic upheld the decision of 8 October 2009 on appeal. Despite his repeated requests, A. was not given a copy of that decision. One of the staff members of the court’s registry told him that the case-file had been lost.
COMPLAINTS
The applicants complain under Article 3, 5 and 13 of the Convention that they were abducted, unlawfully detained and ill-treated by law-enforcements authorities and that the investigations into their allegations of ill-treatment and unlawful detention were ineffective.
QUESTIONS TO THE PARTIES
1. What was the outcome of the additional inquiry opened on 20 January 2010 by the Military Investigations Committee of military unit no. 68799? The Government are requested to submit copies of all relevant documents.
2. The Government are requested to submit:
(a) an entire copy of the case file relating to the inquiry into the first applicant’s allegations of abduction and ill-treatment on 17 June 2007;
(b) an entire copy of case file no. 11118 relating to the applicants’ allegations of abduction and ill-treatment in September 2007;
(c) a copy of the medical expert report of 21 September 2007 in respect of the second applicant;
(d) a copy of the appeal decision of 29 January 2010 by the Supreme Court of the Chechen Republic.
3. As regards each instance of the alleged abduction, were the applicants subjected to treatment in breach of Article 3 of the Convention? Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), were the two investigations in the present case effective within the meaning of Article 3 of the Convention?
4. As regards each instance of the alleged abduction, were the applicants deprived of their liberty, within the meaning of Article 5 § 1 of the Convention? If such detentions took place, were they compatible with the guarantees of Article 5 §§ 1 – 5 of the Convention?
5. Have the applicants had at their disposal effective domestic remedies for their complaints under Articles 3 and 5 the Convention, as required by Article 13 of the Convention? The Government are requested to substantiate their arguments with reference to the domestic courts’ case-law.
Full & Egal Universal Law Academy