BERSUNKAYEVA v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27233/03
by Raisa Shamayevna BERSUNKAYEVA
against Russia

The European Court of Human Rights (First Section), sitting on 10 July 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 with the European Commission of Human Rights on 10 July 2003,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

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, Ms Raisa Shamayevna Bersunkayeva, is a Russian national who was born in 1954 and lives in Urus-Martan, Chechnya. She is represented before the Court by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) were represented by Mr P. Laptev, the former 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.

At the material time the applicant worked in the administration of the Urus-Martan District (администрация Урус-Мартановского района, “the Urus-Martan administration”) and lived in an apartment in a block of flats in Urus-Martan. She had a son, Mr Artur Bersunkayev, born in 1979, who then lived with the applicant’s brother-in-law, Mr Ayndi Bersunkayev, and the latter’s family, in a private house at 51 Partizanskaya Street, Urus-Martan.

1. Detention of Artur Bersunkayev

(a) The applicant’s version

The applicant did not witness the arrest of her son and her account was based on statements of her brother-in-law and his wife, Ms Layla Tsugayeva.

On 13 June 2001, around 4 a.m., a group of men arrived at 51 Partizanskaya Street and attempted to break down the door of the house. When Ms Tsugayeva opened the door, about six men entered the house. They were wearing camouflage uniforms and masks and had machine-guns and portable transmitters.

The men did not introduce themselves or produce any documents to authorise their actions. They locked Ms Tsugayeva in one of the rooms and ordered the applicant’s brother-in-law and her son to lie down. The men hit Ayndi and Artur Bersunkayev with their machine-guns and then tied the latter’s hands and covered his eyes and mouth with adhesive tape. It appears that the applicant’s son lost consciousness and the military poured some water on his head so that he came around.

The servicemen interrogated the applicant’s brother-in-law and her son, putting their questions very rapidly. They enquired whether Ayndi and Artur Bersunkayev were relatives and then demanded that the applicant’s brother-in-law confess and reveal where he kept firearms, and why he sheltered terrorists. Ayndi Bersunkayev answered that he was Artur’s uncle, had no firearms and that he did not shelter terrorists. He also stated that only his family and nephew lived in his house.

The servicemen searched the house and found Ayndi Bersunkayev’s old hunting rifle which was damaged and unfit for shooting. They seized it without furnishing the applicant’s brother-in-law with any relevant document. Thereafter the officer in command of the group told Ayndi Bersunkayev that they had come to the wrong address and would leave. Then the applicant’s brother-in-law was allowed to go to his room and get dressed. When he returned to the corridor he did not see his nephew there.

One of the soldiers looked into the room in which Layla Tsugayeva was locked, and asked her whether she was a relative to Ayndi and Artur Bersunkayev. When she answered, the soldier told her that they would not take her husband but would take Artur Bersunkayev.

Thereafter the commanding officer ordered his group to leave, having stated that they “had been mistaken” and would not “take anyone or anything”. The officer also ordered Ayndi Bersunkayev to stay inside the house for 10 minutes after the servicemen’s departure, having warned that otherwise a sniper would shoot him. Nevertheless, the applicant’s brother-in-law attempted to follow the military but they threatened him with their firearms. He returned home and found out that the applicant’s son had disappeared. Ayndi Bersunkayev ran into the street, but the military were already gone. Later that day the applicant’s brother-in-law talked to a number of neighbours who stated that they saw an “Ural” vehicle and an armoured personnel carrier (“APC”) standing in the Partizanskaya Street and two servicemen forcing Artur Bersunkayev into the APC.

Artur Bersunkayev’s relatives have had no news of him thereafter.

According to the applicant’s brother-in-law and his wife, the men who raided their house were members of the federal forces, since they spoke Russian without accent and had military vehicles, including APCs, at their disposal. The applicant also submitted an eye-witness statement of a neighbour of her brother-in-law, who had confirmed that he had seen Russian servicemen in military vehicles in the Partizanskaya Street on the night of the incident.

(b) The Government’s version

According to the Government, on 13 June 2001, during the night hours, “unidentified men in masks and camouflage uniforms armed with automatic firearms abducted Mr A. Bersunkayev from his home. The latter’s whereabouts remains unknown”.

2. The applicant’s search for Artur Bersunkayev

On 13 June 2001, at 5.45 a.m., the applicant’s brother-in-law arrived at the applicant’s apartment and notified her of her son’s detention. They immediately went to the place of residence of an official of the Urus-Martan administration and asked for assistance. The latter replied that it was too early in the morning and advised the applicant to wait until 9 a.m.

The applicant also visited at home a deputy head of the Urus-Martan administration who also suggested that she should wait until the beginning of the working day.

At 9 a.m. the applicant arrived at the Urus-Martan administration and talked to the head of the administration, having stated the facts of her son’s disappearance and asking for assistance. According to the applicant, the latter gave her no definite answer.

The applicant then applied to the deputy head of the Urus-Martan administration. The latter telephoned to the temporary office of the interior of the Urus-Martan District (временный отдел внутренних дел Урус-Мартановского района, “the Urus-Martan VOVD”) and enquired about the applicant’s son. The Urus-Martan VOVD confirmed that, during the night on 13 June 2001, twelve persons, including Artur Bersunkayev, had been apprehended and at the moment were kept at the Urus-Martan Division of the Chechen Department of the Federal Security Service of Russia (Урус-Мартановский отдел Управления Федеральной службы безопасности РФ по Чеченской Республике, “the Urus-Martan Division of the FSB”).

The applicant also applied in person to the military commander of the Urus-Martan District (военный комендант Урус-Мартановского района). She stated that her son’s arrest had been unlawful, that he had never participated in military operations and during the hostilities in Chechnya in 1994 – 1996 and 1999 – 2000 their family had left Chechnya and had only returned in June 2000. According to the applicant, the military commander confirmed that her son had been detained and also stated that this detention had been planned for a week. He then assured the applicant that the matter would be cleared up.

According to the applicant, during the next three days various officials of the Urus-Martan administration repeatedly confirmed that Artur Bersunkayev was being detained at the Urus-Martan Division of the FSB and would be released after the security check.

On 15 June 2001 the head of one of the divisions of the Urus-Martan administration told the applicant that her son would be released the next day and delivered home, but she would have to take him outside the town. However, Artur Bersunkayev was never released and apparently disappeared.

After 15 June 2001, in reply to the applicant’s repeated queries, the officials of the Urus-Martan administration repudiated their former statements and claimed that they had no information about Artur Bersunkayev.

According to the applicant, on several occasions she attempted to apply in person to the military commander of the Urus-Martan District, but the latter only invited her to lodge written requests, which remained unanswered.

In the applicant’s sibmission, a week after the detention of her son she again talked to the head of the Urus-Martan administration. The latter told her that, prior to Artur Bersunkayev’s detention, he had been seen talking to one of the relatives of the former head of the district administration who had held that position when the former President of Chechnya, Aslan Maskhadov, had been governing.

Since 13 June 2001 the applicant has repeatedly applied in person and in writing to various public bodies, including prosecutors at different levels, district and regional military commanders, local and regional administrative authorities of Chechnya, the Federal Security Service of Russia, the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit (Полномочный представитель Президента РФ в Южном федеральном округе), the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) and the President of Russia. In her letters to the authorities the applicant referred to the facts of her son’s detention and asked for assistance and details of the investigation. Mostly these enquiries remained unanswered, or only formal responses were given by which her requests were forwarded to various prosecutor’s offices “for examination”.

3. Official investigation

On 28 June 2001 the Urus-Martan prosecutor’s office commenced a criminal investigation into the disappearance of Artur Bersunkayev under Article 126 (2) of the Criminal Code of Russia (kidnapping of two or more persons by a group using firearms). The file was assigned the number 25082.

On 21 August 2001 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”) referred the applicant’s complaint concerning the abduction of her son to the Urus-Martan prosecutor’s office “for investigation”.

On 29 August 2001 the office of the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit transmitted the applicant’s application to the republican prosecutor’s office.

On 19 June 2002 the applicant requested the Urus-Martan prosecutor’s office to grant her the status of victim of a crime and inform her of the developments in criminal case no. 25082. In her submission, that request remained unanswered.

According to the applicant, early in October 2002 she accessed the file in case no. 25082 and found a letter dated 15 June 2001. In this letter an investigator of the Urus-Martan Division of the FSB requested the head of the Urus-Martan VOVD to order an expert examination of a pistol and cartridges that had been seized from Artur Bersunkayev.

On 2 October 2002 the applicant requested that the investigator in charge be replaced for his failure to take any investigative measures and inform her of the developments in the case. The applicant’s request was refused.

On 17 December 2002 the Rostov Department of the FSB informed the applicant that her application had been forwarded to the Chechen Department of the FSB.

In a letter 16 January 2003 the FSB of Russia stated that the Urus-Martan Division of the FSB had not detained Artur Bersunkayev on 13 June 2001 and had never taken any investigative measures in his respect. As regards the applicant’s reference to the letter of 15 June 2001 signed by a FSB officer, the FSB of Russia advised her on addressing her queries on that issue to the Urus-Martan prosecutor’s office.

On 22 January 2003 the Head of the Urus-Martan Division of the FSB informed the applicant that his subordinates had not arrested her son, had not taken any action in Urus-Martan during the night on 13 June 2001 and had no information as to Artur Bersunkayev’s whereabouts. He further stated that the investigator who had signed the letter of 15 June 2001 had resigned from his office, and therefore it was impossible to verify whether he had, indeed, ordered an expert examination of the pistol allegedly seized from her son.

In a letter of 12 February 2003 the Urus-Martan Division of the FSB again informed the applicant that their personnel had never detained her son or brought criminal proceedings against him. The letter continued that on 7 June 2001 Artur Bersunkayev voluntarily delivered the pistol in question which had then been subjected to an expert examination with the result that the investigator in charge had taken a decision to dispense with criminal proceedings against the applicant’s son. According to the applicant, on 7 June 2001 her son spent the whole day at home and had not visited the Urus-Martan Division of the FSB.

On 14 March 2003 the republican prosecutor’s office notified the applicant that the criminal proceedings in criminal case no. 25082 instituted on 28 June 2001 had been suspended on 15 January 2003 for failure to identify those responsible and then resumed on 25 February 2003. The term for preliminary investigation had been extended until 25 March 2003.

In May 2003, in an undated letter, the Urus-Martan prosecutor’s office informed the applicant that the criminal proceedings in case no. 25082 had been resumed, however no culprits had been established so far. The letter further stated that the prosecutor’s office had no authority to conduct the search for missing persons, that being the task of the police, and therefore the applicant should forward her further requests to establish her son’s location to the Urus-Martan VOVD.

On 23 May 2003 the republican prosecutor’ office, in reply to the applicant’s query, informed her that on 14 February 2002 criminal case no. 25082 instituted in connection with the abduction of her son had been joined with two other criminal cases and given the number 24071. On the same date the criminal proceedings were suspended as it was impossible to establish the alleged perpetrators. On 22 May 2003 the criminal proceedings were resumed and at present the investigation and search for Artur Bersunkayev and culprits were in progress.

On 12 August 2003 the Southern Federal Circuit Department of the Prosecutor’s General Office (Управление Генеральной Прокуратуры РФ в Южном федеральном округе) referred the applicant application to the republican prosecutor’s office. The latter invited the applicant to address her queries to the Urus-Martan prosecutor’s office.

By a decision of 18 September 2003 the Urus-Martan prosecutor’s office admitted the applicant as a victim to the criminal proceedings in case no. 25082 instituted in connection with the abduction of her son, Artur Bersunkayev, by “unidentified individuals wearing camouflage uniforms and masks and armed with automatic firearms”.

On 9 July 2004 the military prosecutor of military unit no. 20102 (военная прокуратура – военная часть 20102) informed the applicant that no involvement of federal servicemen in the detention or abduction of her son had been established.

On 6 August 2004 the applicant requested the Urus-Martan prosecutor’s office to authorise her access to the file in the criminal case concerning the abduction of her son.

On 9 August 2004, the Urus-Martan prosecutor’s office refused the applicant’s request, having stated that under national law she was only entitled to read the case file after the termination of the preliminary investigation, and that at present the investigation into the abduction of Artur Bersunkayev had been suspended since no culprits could be found.

On 19 May 2005 the applicant requested the Urus-Martan prosecutor’s office to resume the proceedings in case no. 25082 and to allow her access to the case file.

On 2 June 2005 the Urus-Martan prosecutor’s office rejected the applicant’s request in a letter similar to that of 9 August 2004.

Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memorials dated 4 October and 3 November 2005 that the applicant’s written complaint concerning the abduction of her son had been received by the Urus-Martan prosecutor’s office on 25 June 2001 and the criminal proceedings in the above connection had been instituted on 28 June 2001, under Article 126 of the Russian Criminal Code (kidnapping). Since then it had been suspended and resumed on ten occasions, but failed to identify those responsible so far. On the latest occasion the investigation was re-opened on 22 October 2005.

According to the Government, the investigating authorities granted the status of victim to the applicant on an unspecified date and questioned her on 30 June and 18 October 2001. The applicant had stated that, following her son’s arrest, she had found out from the head of the local administration that he had been kept in the Urus-Martan Division of the FSB and would have been released three days later. She had also talked to military commander G., who had said that her son had been taken by officers of the FSB. Mr G. had also stated that “they had hunted Artur Bersunkayev for some time and had finally captured him”. Later the officials had denied that they had ever detained her son.

Apart from the applicant, the investigating authorities also interrogated at least 8 witnesses, including the applicant’s relatives and neighbors and a number of public officials who worked in the Chechen Republic at the material time. The witnesses were mostly questioned in 2003-2005. The applicant’s relatives had confirmed the circumstances of Artur Bersunkayev’s arrest. The head of the Urus-Martan Division of the FSB, Mr K., had stated that he had known Artur Bersunkayev since April 2001 as an active member of illegal armed groups, who had been involved in planting landmines and shelling federal military convoys. According to Mr K., on 18 April 2001 the applicant’s son, armed with a pistol and grenade, had participated in an armed clash in the grounds of the Urus-Martan hospital, but had escaped capture. Thereafter the authorities had contacted his parents and requested them to persuade Artur Bersunkayev to abandon illegal armed groups, “which had brought positive results”. According to Mr K., the Urus-Martan Division of the FSB had never detained the applicant’s son and Mr K. had no information as to which State agency could have detained him.

In the Government’s submission, the head of the Urus-Martan administration, Mr Ya., had submitted that he had found out about Artur Bersunkayev’s detention from officials of the administration and that he had not witnessed the applicant’s conversation with military commander G. The deputy head of the Urus-Martan administration submitted during an interrogation that on 13 June 2001 the applicant had informed him of her son’s arrest and asked for his assistance. On the same day he had called the military commander’s office and a duty officer had confirmed that Artur Bersunkayev had, indeed, been detained, but on the next day military commander G. had repudiated that information. Mr A., a senior investigator of the Chechen Department of the FSB, who had worked in Urus-Martan at the material time had stated during an interrogation that on 7 June 2001 military commander G. had sought his assistance in formally registering the fact of the voluntary surrender of a pistol by Artur Bersunkayev. Mr A. had carried out necessary procedural actions to that end and had taken a decision to dispense with criminal proceedings against the applicant’s son. According to Mr A., no procedural decisions depriving the applicant’s son of his liberty had ever been taken. According to the Government, it was impossible to question military commander G., as he had been killed in a terrorist attack on 29 November 2001.

According to the Government, the investigation obtained information that a pistol had been seized from Artur Bersunkayev prior to his disappearance and that the pistol had been sent to the expert office of the Urus-Martan VOVD for a study on 15 June 2001. The experts had studied the pistol on 17 June 2001 and drew up a report stating that the pistol and cartridges of 9 mm calibre had been trig and fit for shooting.

The Government also referred to the statements of the senior officers of the law-enforcement agencies of the Urus-Martan District or the adjacent districts, the military commander’s office of the Urus-Martan District and the Urus-Martan Division of the FSB to the effect that their personnel had not instituted criminal proceedings against, or detained, the applicant’s son and had had no information as to his whereabouts. The applicant’s son had not been kept in pre-trial detention centres in the Chechen Republic or the neighbouring regions.

Lastly, the Government submitted that on several occasions the investigating authorities had requested district prosecutor’s offices of the Chechen Republic and the military prosecutor’s office of military unit no. 20102 to take necessary steps with a view to establishing Artur Bersunkayev’s whereabouts, but he remained missing until present.

Despite specific requests made by the Court on two occasions, the Government refused to submit a copy of the entire investigation file in case no. 25082, stating with reference to the information obtained from the Prosecutor General’s Office that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses.

They only submitted several documents, which included:

(a) a procedural decision of 28 June 2001 to institute criminal proceedings in connection with Artur Bersunkayev’s disappearance;

(b) procedural decisions suspending and reopening the investigation in case no. 25082;

(c) investigators’ decisions to take up case no. 25082;

(d) letters informing the applicant of the suspension and re-opening of the investigation in criminal case no. 25082.

At the same time, the Government suggested that a Court delegation could have access to the file in the premises of the preliminary investigation, with the exception of “those documents [disclosing military information and the personal data of the witnesses], and without the right to make copies of the case file and transmitting it to others”.

4. Proceedings against officials

(a) The applicant’s complaint about her son’s detention

On 31 December 2002 the applicant lodged a complaint against officials of the Urus-Martan Division of the FSB with the Urus-Martan Town Court (“the Town Court”). She claimed that her son had disappeared after having been arrested by the FSB officers, referring to the letter of 15 June 2001 to support this allegation. The applicant sought to have her son’s whereabouts established and him released.

On 3 March 2003 the applicant further applied to the Supreme Court of the Chechen Republic, complaining about the unlawful detention of her son and the Town Court’s failure to examine her complaint of 31 December 2002.

On 19 March 2003 the Supreme Court of the Chechen Republic transmitted the applicant’s complaint to the Town Court.

On 16 March 2004 the Town Court dismissed the applicant’s complaint against the officers of the Urus-Martan Division of the FSB, having noted that there was no evidence of their involvement into the abduction of the applicant’s son.

On 21 April 2004 the Supreme Court of the Chechen Republic upheld the first instance judgment on appeal.

(b) The applicant’s complaints against the Urus-Martan prosecutor’s office

On 6 July 2005 the applicant applied to the Town Court, complaining about the investigating authorities’ refusal to allow her to study the file of the investigation into her son’s disappearance and to make copies of the relevant documents. She also challenged the decision suspending the investigation and complained that the investigating authorities had not taken the necessary measures to resolve the crime.

By a decision of 1 August 2005 the Town Court granted the applicant’ s complaint in part and ordered the Urus-Martan prosecutor’s office to give the applicant access to the case file. It also noted that the proceedings in criminal case no. 25082 had been already resumed on 19 July 2005.

On 17 October 2005 the applicant again applied to the Town Court, complaining that the investigator in charge prohibited her from making copies of the documents from the case file, or even from taking written notes.

On 11 November 2005 the Town Court disallowed the applicant’s complaint.

On 16 November 2005 the applicant appealed against the Town Court’s decision, the outcome of the appeal proceedings is unclear.

5. The applicant’s access to the file of the criminal investigation

On 13 and 14 December 2005 the applicant was given the access to the file of criminal case no. 25082, pursuant to the Town Court’s decision of 1 August 2005. She was not allowed to make any photocopies or to take written notes, but she managed to memorise the contents of a number of documents.

According to the applicant, the case file comprised 300 pages. The numbering of some of the pages had been amended, in particular, the page number 135 had been amended to 130, and the page number 156 had been amended to 143.

While studying the case file the applicant came across a number of documents which, in her view, confirmed the involvement of the Russian security agencies in her son’s disappearance. In particular, in a letter dated 15 June 2001 the investigator of the Urus-Martan Division of the FSB requested the head of the Urus-Martan VOVD to order an expert examination of a pistol and cartridges that had been seized from Artur Bersunkayev.

The expert office of the Urus-Martan VOVD replied on 16 June 2001 that the pistol and cartridges in the amount of 16 pieces were trig and fit for use and that bullet shells and cartridges seized at the scenes of crimes committed in Urus-Martan, which had remained unsolved, had not been shot from the said pistol. The experts also stated that it had been impossible to find out whether any shots had been fired from the pistol in question since the experts had no necessary chemicals.

In a letter of 6 November 2001 the deputy prosecutor of the Chechen Republic requested the head of the Chechen Department of the FSB to forward them the file of the case instituted in connection with the abduction of the applicant’s son, stating that “the fact of the implication of the Urus-Martan Division of the FSB in Artur Bersunkayev’s abduction had been established”.

The applicant also came across a number of witness statements. In particular, the deputy head of the Urus-Martan Division of the FSB, Mr K., stated that the applicant’s son had been a member of illegal armed groups, had participated in explosions and had planted landmines. The deputy head of the Urus-Martan administration stated that he had talked to military commander G. in an attempt to assist the applicant in finding her son. At first the military commander had acknowledged the fact of Artur Bersunkayev’s detention, but on the next day he had repudiated his statement. One of the neighbours of the applicant’s brother-in-law stated that he had seen Russian servicemen and military vehicle in the vicinity of Partizanskaya Street. Another neighbour stated that he had seen a military vehicle “Ural” near his house in the evening of 12 June 2001.

According to a transcript of an interview with a former investigator of the Urus-Martan Division of the FSB, Mr A., on 17 June 2001 he took a decision to dispense with criminal proceedings against the applicant’s son, given that the latter had voluntarily ceded the pistol. Mr A. stated that he had not personally seen Artur Bersunkayev or had taken a pistol from him but rather had helped military commander G. to draw up a report attesting the surrender of the pistol. Mr A. also stated that all relevant material in the above respect had been taken by military commander G. According to Mr A., no decisions had been taken to deprive the applicant’s son of his liberty.

In the applicant’s submission, the investigator in charge had repeatedly asked a number of witnesses, including officials of local administration, whether Artur Bersunkayev had been involved in illegal armed activities. All of the witnesses confirmed that they had never heard that the applicant’s son had been involved in any such activities.

In the case file the applicant also found two letters inviting military commander G. to report to the Urus-Martan prosecutor’s office for questioning. One of the letters had Mr G.’s handwritten and signed note stating that “he was not a witness”. According to the applicant, it did not appear that Mr G. had ever been interrogated as she had not seen any documents reporting on his questioning.

She also submitted that there had been no evidence in the case file confirming that the investigating authorities had made any attempts to question any officials of the military commander’s office or those of the FSB Division, apart from two officers. She did not see any documents indicating that the investigators had attempted to establish which military unit in Urus-Martan had had armoured personnel carriers, military vehicles “Ural” and UAZ and where those vehicles had been at the time of the incident with the applicant’s son.

According to the applicant, in late 2005 the investigators had not undertaken any meaningful actions, apart from questioning one witness. The documents relating to the period in question represented standard letters from the prosecutor’s office requesting that the search for the applicant’s son be stirred to activity and standard replies from the district office of the interior stating that the search was in progress.

Finally, the applicant submitted that she had not seen any documents disclosing State secrets or military information in the case file.

B. Relevant domestic law

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 161 of the new CCP stipulates that information from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.

COMPLAINTS

1. The applicant complained under Article 2 of the Convention about a violation of the right to life in respect of her son, Artur Bersunkayev. She submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established indicated that Artur Bersunkayev had been killed by the federal forces. The applicant also complained that no effective investigation had been conducted into her son’s disappearance.

2. The applicant referred to Article 3 of the Convention, claiming that her son had been beaten at the moment of his arrest and that she had serious grounds to believe that he had been subjected to torture and inhuman treatment in detention. She further complained that no effective investigation has been conducted into the matter. Under this heading the applicant also submitted that she suffered severe mental distress and anguish in connection with her son’s disappearance and on account of the State’s failure to conduct a thorough investigation in this respect.

3. The applicant complained that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of her son.

4. Finally, the applicant alleged that she had no effective remedies in respect of her complaints under Articles 2, 3 and 5, contrary to Article 13 of the Convention.

5. Lastly, in her observations the applicant stated that the Government’s refusal to submit a file in criminal case no. 25082 was in breach of the State’s obligations under Articles 34 and 38 § 1 (a) of the Convention.

THE LAW

The applicant raised complaints set out above relying on Articles 2, 3, 5 and 13 of the Convention, which in so far as relevant, read as follows:

Article 2

“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.”

Article 3

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

Article 5

“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.”

Article 13

“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.”

A. Exhaustion of domestic remedies

1. Submissions by the parties

The Government argued that the present application should be declared inadmissible for non-exhaustion of domestic remedies, stating that the investigation into the abduction of the applicant’s son was still pending.

The applicant contended that the Government had not indicated which particular domestic remedy she had not exhausted. She further stated that the Government’s argument to the effect that the investigation was pending related to the merits of the present case rather than to the question of its admissibility.

2. The Court’s assessment

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. As to the merits of the application

1. Submissions by the parties

(a) The Government

The Government relied on the information provided by the Prosecutor General’s Office and argued that the Russian authorities were not responsible for the actions of unidentified persons who had abducted Artur Bersunkayev and that the investigation had not obtained any evidence to the effect that representatives of the federal power structures had been involved in the imputed offence. They submitted to that end that members of illegal armed formations within the territory of the Chechen Republic resorted to various methods of concealing the fact of their participation in such groups and that of recruitment of new members, such as “deliberate dissemination of false information concerning their disappearance from the places of their permanent residence and implication of federal forces in such disappearance”. Moreover, the aforementioned false information also used by “representatives of international terrorist organisations, leaders of illegal armed groups and their emissaries abroad or the purpose of propaganda against the State agencies of Russia”. The Government argued therefore that there were no grounds to claim that Artur Bersunkayev’s right to life secured by Article 2 of the Convention had been breached. The Government further claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify those responsible.

The Government contended that there was no evidence confirming that the applicant’s son had been subjected to treatment in breach of Article 3 of the Convention or that the authorities had violated the said provision during the investigation. They further submitted that “the materials of the criminal case do not make it possible to assess the degree of the applicant’s mental suffering”, that the domestic authorities had not taken any actions aiming at “humiliating, punishing or torturing” the applicant.

In the Government’s submission, there was no evidence to confirm that the applicant’s son had been detained in breach of the guarantees set out in Article 5 of the Convention. Artur Bersunkayev was not listed among the persons being kept in detention centres.

The Government also contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention, as she had received reasoned replies to all her requests and queries made in the context of the investigation and had been free to apply to any State body, including domestic courts.

(b) The applicant

The applicant disagreed with the Government and maintained her complaints. She argued that it was beyond reasonable doubt that Artur Bersunkayev had been detained by representatives of the security agencies, this fact being confirmed by eyewitness statements, including those of public officials. She referred, in particular, to a letter of 6 November 2001 of the deputy prosecutor of the Chechen Republic, stating that “the fact of the implication of the Urus-Martan Division of the FSB in Artur Bersunkayev’s abduction had been established”, which she had seen in the materials of the case no. 25082. The applicant also submitted that the men who had taken away her son had arrived in the night during the curfew in several military vehicles; they had had military uniforms and radio transmitters and had spoken Russian without accent. She further stressed that Artur Bersunkayev had been apprehended in life-endangering circumstances, given a widespread practice of forced disappearances, tortures and killings in Chechnya during the period in question. The applicant thus argued that, in view of the above and given that her son remained missing for over four years at the time of the submission by her of her observations, he may be presumed dead even in the absence of any formal evidence confirming his death.

The applicant further argued that the investigation in the present case had fallen short of the requirements of domestic law and of Convention standards. She pointed out that the investigation had not been commenced before 28 June 2001, i.e. two weeks after her son’s arrest and disappearance. Moreover, the investigation had been plagued with considerable periods of inactivity, in particular, between June and October 2001 and between October 2001 and March 2003. The investigating authorities had failed to question the key witness, military commander G., who had then been killed in November 2001, and it was not before March 2003 that the eye-witnesses of Artur Bersunkayev’s arrest were interrogated. The applicant further contended that the Government had referred to interview of a number of witnesses in 2003-2005, but had failed to indicate the results of those interviews or their effect on the investigation. The investigation had failed to establish the identity of the men who had apprehended the applicant’s son, and the State body which they had represented. The investigation had by now been pending for several years, but had failed to identify those responsible.

The applicant further insisted that Artur Bersunkayev had been subjected to treatment contrary to Article 3 of the Convention and that the authorities had not conducted a thorough investigation into the matter. She also argued that she had endured severe mental suffering falling within the scope of Article 3 of the Convention on account of her son’s disappearance.

The applicant claimed that her son’s detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.

Lastly, the applicant relied on Article 13 of the Convention, alleging that in her case the domestic remedies usually available had proved to be ineffective.

2. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the present application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared 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 non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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