KHADISOV AND TSECHOYEV v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21519/02
by Salambek KHADISOV and Islam TSECHOYEV
against Russia

The European Court of Human Rights (First Section), sitting on 15 November 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 11 April 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 Mr Salambek Khadisov, born in 1956, and Mr Islam Tsechoyev, born in 1977. They are Russian nationals and live in Ingushetia. They were 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.

A. The circumstances of the case

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

1. The applicants’ detention

(a) The applicants’ submissions

(i) Underlying events and Mr Salambek Khadisov’s detention in the Sunzhenskiy District Department of the Interior

The first applicant has been married for 22 years and has four children. Until 1999 he and his family lived in Grozny. In October 1999, because of the hostilities, they moved to the neighbouring republic of Ingushetia and settled in the village of Verkhny Alkun, Sunzhenskiy District, which is near the border with the Chechen Republic. There the first applicant and his family owned and tended several cows.

On 8 September 2001 the village elder and the head of the administration went to the military unit of the border troops stationed near the village to warn them that on the following day the villagers were going to make hay in the meadows, and that the servicemen should not shoot at them. The commander of the military unit gave assurances that there would be no shooting.

On 9 September 2001 the first applicant, together with his youngest son and other villagers (14 persons altogether, including women and children) went to the meadow to make hay. At about 10 a.m. the villagers were shot at from the nearby forest, where the troops had been stationed. The first applicant’s nephew, Mr A. K., born in 1984, was wounded in both legs. The first applicant and other villagers tied his wounds to stop heavy bleeding and started to shout to the soldiers, who were 100-200 metres away, that they should stop shooting and that a boy had been wounded. However the shooting and shelling continued for about an hour.

The first applicant and two women tied a handkerchief to a raised stick and walked up to the closest armoured personnel carrier (APC), shouting “Don’t shoot! There is a wounded man here!” An officer in the APC told the first applicant that he would ask the others not to shoot and told him to get the other men out of the field. The villagers got into the Gaz-66 minivan with which they had arrived at the meadow and went down the hill to the village.

At the edge of the village they were met by a group of servicemen, policemen and villagers of Verkhny Alkun. There they were told that servicemen had been attacked and had fired in response. A local police officer told them that the wounded should be taken to the hospital for which he had called a car, and that the men should go and see journalists at the Sunzhenskiy District Department of the Interior (ROVD) in the village of Sleptsovskaya (also known as Ordzhonikidzevskaya) and tell them about what had happened.

Once at the Sunzhenskiy ROVD, the first applicant and other men were placed in a cell and questioned. Seven men, including the applicant and his son A., were detained there for three days, and released on 12 September 2001. While in the ROVD, the applicant and other men were questioned by unknown men wearing military camouflage and by M. B., the investigator of the Sunzhenskiy District Prosecutor’s Office. No documents were produced in respect of this detention.

Following the opening of a criminal investigation into the attack of 9 September 2001, on 11 October 2001 an investigator of the Prosecutor’s Office of Ingushetia informed Mr A. K. that on 11 September 2001 he had been granted victim status in criminal case no. 21600040. The first applicant submitted several statements by other villagers about the circumstances of the events of 9-12 September 2001.

On 22 February 2003 the head of the Verkhny Alkun village administration issued an explanation notice confirming the events of 9 September 2001 as presented by the applicant.

After his release the first applicant spent several days in the Sunzhenskiy District hospital in Sleptsovskaya village looking after the wounded Mr A. K. In the meantime, the police carried out a search in the first applicant’s house in Verkhny Alkun, of which he was informed by his wife.

On 23 September 2001 the applicant left the hospital while another relative, Mr S., stayed there to look after the wounded. That evening, upon his return to the hospital, he was told that Mr S. had been taken to the ROVD and that he should go there too in order to submit some explanations.

The first applicant, who was afraid that he could be detained again, first visited the prosecutor’s office and talked to investigator M. B., who allegedly assured him that nothing would happen and that he would personally see to it. The first applicant, together with his wife, then went to the Sunzhenskiy ROVD. There the applicant was separated from his wife and placed in a cell, where there were already several detainees, including his relative Mr S. and the second applicant, whom he had not met before.

(ii) Mr Islam Tsechoyev’s detention in Sunzhenskiy District Department of the Interior

The second applicant is an agronomist by profession. In 2001 he worked as a mechanic in a boiler-house. He lived with his parents and siblings at 112 Dzerzhinskogo Street in the village of Ordzhonikidzevskaya.

On 23 September 2001 the second applicant was at home. He was planning to go with his relatives to the construction site of their new house. His parents, sister, three brothers and a relative were at home at that time and produced detailed statements about the following events.

At about 10 a.m. a group of men in civilian clothes entered the house. The second applicant recognised the head of the Sunzhenskiy criminal police M. Ye., and two policemen whom he had known personally. The family members were ordered to go outside the house, where their identity documents were checked. The policemen searched the house. They then asked the second applicant to come to the Sunzhenskiy ROVD for a check. No documents were produced or submitted in respect of the search or the second applicant’s detention.

Once at the ROVD, the second applicant was questioned about what he had been doing on 19 September 2001. He understood from the questions that he was suspected of attacking Russian servicemen on that day near the village of Verkhny Alkun. The second applicant gave a written statement that on that day he had been working with his brother and father at the construction site of their new house, and that the neighbours could confirm this.

The second applicant was then questioned for several hours about the attack by three men with Slavic features wearing military camouflage, who asked him, in particular, whether he had known any fighters. They told him that they suspected him of being a member of an illegal armed group, and that he would be sent to Khankala – the main Russian military base in the Chechen Republic. No records of the questioning were made.

(iii) The applicants’ detention at the Khankala military base and in Grozny

On 24 September 2001 both applicants were taken to the Sunzhenskiy District Court, where the judge asked them for their personal details. The applicants later learned that they had been charged with resisting police officers and that they had been brought to the ROVD for that reason. On the same day a judge of the Sunzhenskiy District Court authorised the detention of both applicants for three days for violently resisting the police officers’ attempt to check their identity documents.

Later that day the applicants’ passports were returned to them and they thought that they would be released. Instead, a group of servicemen from the Special Forces unit of the Ministry of the Interior (“OMON”) arrived and took charge of the applicants. The servicemen had “OMON” inscriptions on their jackets. They put the applicants into a bus where they were forced under the seats and beaten with hands and feet.

The bus arrived at the base of the Special Mission Division of the Ministry of the Interior (DON) no. 99, near Nazran, commonly known by the locals as “the 58th army”. There the beating continued. The applicants were severely beaten with rifle butts, boots, metal rods and wrenches; they were also strangled with plastic bags and belts. When they lost consciousness the bags were removed from their heads and when they came round the beatings continued. The servicemen did not ask the applicants any questions, but told them that they were beating them in revenge for their killed comrades.

Then both applicants were thrown into a helicopter. The second applicant lost consciousness again and later awoke in the helicopter lying on the floor, with a bag over his head, a soldier’s feet on his back and a gun pointed at his head. The first applicant’s head was tightly wrapped with a cloth so that he could not see anything, but he was transported in a similar manner.

The applicants later learned that the helicopter had taken them to the Khankala military base. They were thrown into a large pit in the ground and beaten for about an hour. They were also subjected to other forms of torture: their hands were tightly tied with metal wire, their ribs and hips were burned with cigarettes. The soldiers also took photographs in which they were shown placing their feet on the applicants’ heads.

The first applicant was later taken to another pit, where he was allowed to remove the cloth from his face.

The second applicant was taken somewhere for questioning, and for about an hour he was severely beaten on his head, ribs and on the heels of his feet. He was questioned about having some connection with fighters. After that he was put into the same pit as the first applicant, where he was allowed to remove the bag from his head.

The applicants remained in the pit for five days. They described it as about 2.5 metres by 2.5 metres large, and about 2.5 metres deep. It was roofed with a wooden cover and only a small opening was left, concealed by a camouflage net. The applicants suffered from humidity and cold, and were not given any food.

During the first four days of detention at Khankala the applicants were taken out for questioning, one after the other, into a room with wooden walls and electric lighting which had a sign marked “Chief of staff” on the wall. They were questioned about whether they had known any fighters and asked to give names. The interrogators also read out the list of wanted persons and asked if the applicants knew any of them. No official records were made during the questioning.

According to the applicants, they were subjected to the following forms of torture and ill-treatment: they were beaten with boots and rifle butts on different parts of their bodies, in particular on the soles of their feet; they were burned with cigarettes and forced to sit in a bucket while being beaten. As a result of the beatings the applicants could hardly walk, the skin on their feet peeled off, and their faces and bodies were bloated and covered with haematomas. The second applicant was forced to stand for hours with his forehead against the wall, with his hands tightly tied behind his back and legs spread widely apart. He still had clearly visible marks on his forehead one year after the events. The soldiers also threatened the applicants with execution and put guns to their heads. On one occasion both applicants were given a document to read which said that they had been caught trying to plant a mine on the road, that the mine had exploded and that both had died on the way to hospital.

On the fifth day of detention – the applicants believed it was 29 September 2001 – they were called one after the other to sign a document to the effect that they had no complaints and that they had not been subjected to any ill-treatment. The applicants first refused to sign it, but after the soldiers beat them they signed the document to avoid further beatings. They were then transferred in a car, with bags over their heads, to the Sixth Department of the Organized Crime Unit (RUBOP) of the Staropromyslovskiy District of Grozny. The applicants spent fifteen days in that department. The conditions of detention were satisfactory and the applicants were given food. However, on several occasions the servicemen kicked them and threatened them with torture.

(b) The Government’s submissions

On 9 September 2001 in the forest on the outskirts of the village of Verkhny Alkun, Sunzhenskiy District, unidentified persons fired automatic weapons at servicemen of the federal forces. As a result two servicemen were killed and two other servicemen and a villager, Mr K., received shotgun wounds.

On the same day the Sunzhenskiy District Prosecutor’s Office opened criminal investigation no. 21600040 into the events. In the course of the investigation sixty persons, including the first applicant, his son A., and the second applicant, were brought to the ROVD for enquiries concerning their possible involvement in the shooting. However, they were not detained. A search was conducted at the first applicant’s house. The second applicant’s house was not searched.

On 23 September 2001 the applicants were again brought to the ROVD for further enquiries. Since they did not follow the orders of the law-enforcement officers, on 24 September 2001 the Sunzhenskiy District Court ordered their administrative arrest for three days.

Later on 24 September 2001 the applicants were “transferred” to officers of the mobile detachment of the Ministry of the Interior for enquiries concerning their possible participation in illegal armed groups.

The Government submitted no information concerning the applicants’ place of detention in the subsequent period. They stated that, according to the results of the investigation, the applicants had not been held in facilities for either remand or administrative detention in the Chechen Republic. The fact of their detention at the Khankala military base was not confirmed either.

2. The applicants’ release and the subsequent investigation

(a) The applicants’ submissions

On 12 October 2001 the applicants were released. They were not given any papers, and the servicemen told them that they should consider themselves lucky to be alive. At the gates of the RUBOP building they were met by the first applicant’s sister and the second applicant’s mother. The applicants were very weak, and the second applicant could not walk without assistance. Both applicants were taken by their relatives to doctors for treatment.

The first applicant was diagnosed as suffering from pneumonia, the fracture of three ribs, burns from cigarettes, partial paralysis of the left hand and bruises. He submitted no copies of medical documents but a statement from his wife, who confirmed that he had suffered from the consequences of the beatings and could not work.

The second applicant was taken to Nazran hospital on 16 October 2001 and remained there until 19 October 2001. He was diagnosed with trauma to the lower back, concussion of the kidneys, chronic pyelonephritis and macrohaematuria. On 27 October 2001 the second applicant was again brought to a hospital in Malgobek by his relatives, and remained there until 19 November 2001. In addition to the previous findings, he was diagnosed with craniocerebral injury and concussion of the head and back. The doctors took note of his complaints about his loss of sight, pain in the back and head and vertigo. The second applicant continued to suffer from pain, loss of sight, convulsions and other consequences of the ill-treatment for many months after his release. In February 2003 doctors advised him to undergo a complicated operation on his kidneys, but he could not afford it.

The applicants and their relatives complained to various official bodies about the search, arrest and ill-treatment of the applicants. In response, they received very little substantive information concerning actions taken by the authorities further to their complaints. On several occasions, they received copies of letters from various authorities informing them that their complaints had been forwarded to the local prosecutors.

According to the applicants’ relatives, from 24 September to 12 October 2001 they were not informed about the applicants’ whereabouts, or the reasons for or places of their detention. They found out by asking the military and the police that at some point the applicants had been detained at the Khankala military base and then transferred to Grozny. However, this information was not official.

On 27 September 2001 the Prosecutor’s Office of Ingushetia forwarded the request of the second applicant’s father, to find out the reasons for the detention and the whereabouts of his son, to the Sunzhenskiy District Prosecutor for investigation.

On 8 and 10 October 2001 the second applicant’s mother wrote to the Sunzhenskiy District Prosecutor’s Office and to the Sunzhenskiy District administration, respectively, asking about the whereabouts of her son after his arrest on 23 September 2001.

On 10 October 2001 the Sunzhenskiy District Prosecutor’s Office responded to the applicants’ relatives that no official documents or reports existed in relation to the applicants’ arrest, detention or alleged transfer to the Chechen Republic. The letter further stated that the transfer to the Chechen Republic or another region had not been authorised by the prosecutor’s office, and that an investigation into possible breaches of due process was underway.

On 11 October 2001 the second applicant’s mother again wrote to the Prosecutor’s Office of Ingushetia, complaining about her son’s illegal detention and alleged transfer to the military authorities in the Chechen Republic.

On 12 October 2001 the first applicant’s wife submitted in person a complaint to the Prosecutor’s Office of Ingushetia, asking to be informed of her husband’s whereabouts and the reasons for his arrest.

After the applicants’ release, they themselves applied to the prosecutors asking that an investigation be conducted into their allegations of ill-treatment and that the persons responsible be brought to justice.

Soon after his release from the hospital (some time in November 2001) the second applicant submitted a detailed account of his arrest, detention and ill-treatment to the Prosecutor’s Office of Ingushetia, indicating the names, ranks and descriptions of the servicemen who had participated in his arrest and the beatings in Ingushetia.

It appears that on 23 November 2001 the Sunzhenskiy District Prosecutor’s Office refused to open a criminal investigation into the actions of the officials of Ministry of the Interior for absence of corpus delicti. The applicants did not submit a copy of that document, but on 20 December 2001 the second applicant, assisted by a lawyer, appealed against the decision to the Prosecutor’s Office of Ingushetia. He sought the quashing of the decision and the opening of an investigation into his allegations of ill-treatment. The appeal also contained references to the identity of the servicemen involved and a detailed description of the events.

On 4 January 2002 the Prosecutor’s Office of Ingushetia informed the second applicant that on that day a criminal investigation had been opened into his complaint about his arrest and beatings administered by unknown servicemen of the Ministry of the Interior, and that the investigation would be carried out by the Sunzhenskiy District Prosecutor’s Office.

On 27 February 2002 the applicants’ representative, the SRJI, wrote to the Chechnya Republican Prosecutor and asked him to open a criminal investigation into the ill-treatment of the applicants at the Khankala military base on 24-27 September 2001. On 10 April 2002 the SRJI again wrote to that prosecutor, but received no reply.

On 10 October 2002 the applicants talked to the SRJI representatives in Nazran, who filmed the interview. They have submitted a transcript of the videotape, in which the applicants displayed the scars still visible on their bodies and stated that they suffered from recurrent health problems. They also stated that no proper investigation of their complaints had taken place.

(b) The Government’s submissions

On 4 January 2002 the Prosecutor’s Office of Ingushetia opened a criminal investigation in case no. 22600008 following the second applicant’s complaint concerning alleged ill-treatment by officers of federal forces. Criminal proceedings were instituted under Article 285 of the Criminal Code (abuse of official powers).

On 16 January 2002 the second applicant was questioned and granted victim status in the proceedings. According to the Government’s submissions, the second applicant stated that after he and the first applicant had been brought to the ROVD on 23 September 2001, they had been transferred to unidentified persons in Nazran, Ingushetia, and then transported to Grozny. They had been ill-treated on the way to Nazran and in Grozny. They had been released a few days later. They would not be able to identify the persons who had ill-treated them.

On the same date officers of the Sunzhenskiy District Department of the Interior, K. D. and A. A., were questioned.

On 18 and 19 January 2002 officers of the Sunzhenskiy District Department of the Interior, A. M., M. Ts., S. Ts., V. Kh. and I. M., were questioned.

On 1 February 2002 the second applicant was confronted with
officer K. D.

On 11 February 2002 the first applicant was questioned and granted victim status in the proceedings. He made statements similar to those of the second applicant.

On 15 February 2002 the first applicant was confronted with officer A. M.

On 19 February 2002 the second applicant was confronted with officer A. A.

On 21 February 2002 Mr D. was questioned. It is not clear who he was or why his statements could have been relevant.

On 27 February 2002 A. I., a senior officer of the Samogorskiy Department of the Khakasiya Ministry of the Interior was questioned.

On 13 March 2002 the investigation was suspended on the ground that the persons to be charged with the offence could not be identified.

Despite the suspension of the investigation, on 3 April 2002 investigator M. of the Zamoskvoretskiy Prosecutor’s Office of Moscow questioned as a witness S. Z., the commander of the mobile detachment of the Ingushetia Ministry of the Interior.

On 10 October 2002 the decision to suspend the investigation was quashed by the Sunzhenskiy District Prosecutor.

On 20 October 2002 Mr T. Kh. and Mr A.-S. K. and on 29 October 2002 Mr M. E. were questioned. It is not clear who they were or why their statements could have been relevant.

On 10 November 2002 the investigation was suspended on the ground that the persons to be charged with the offence could not be identified.

On 15 April 2003 the decision to suspend the investigation was quashed by the Sunzhenskiy District Prosecutor.

On 17 April 2002 Mr U. Kh. was questioned. It is not clear who he was or why his statements could have been relevant.

On 15 May 2002 the investigation was suspended on the ground of absence of corpus delicti.

In July 2003 the materials concerning the applicants’ detention at the Khankala military base were separated from case no. 22600008 and transmitted to the military prosecutor’s office of the United Group Alignment (UGA) in the North Caucasus region. The results of the enquiry conducted did not support the applicants’ allegations that they had been detained at the base. On 8 August 2003 the UGA Prosecutor’s Office refused to institute criminal proceedings, invoking the absence of corpus delicti.

On 7 June 2005 the decision to suspend the investigation of 15 May 2002 was quashed by the Deputy Prosecutor of Ingushetia.

On 6 July 2005 the applicants underwent forensic medical examinations. According to the results of the examination the second applicant had a blunt injury in the lumbar region with concussion of the kidneys, which represented significant injuries (вред здоровью средней тяжести). The first applicant had traces of healing injuries. However, because of the time that had elapsed, it was not possible to establish either how they had been caused or what degree of bodily harm they represented.

On 17 July 2005 the investigation was closed on the ground of absence of corpus delicti. The relevant parts of the decision read as follows:

“The investigator of the Sunzhenskiy District Prosecutor’s Office ... has established the following:

On 23 September 2001 officers of [the Sunzhenskiy ROVD] brought [the applicants] to the [ROVD] for an enquiry concerning their involvement into the attack on servicemen of the federal troops. Since [the applicants] disobeyed the police officers when being brought to the [ROVD], on 24 September 2001 the judge ... of the Sunzhenskiy District Court ordered their administrative arrest ... for three and two days respectively.

On the same day [M.], the deputy head of the Department of the Interior for the Sunzhenskiy District Administration [ОВД администрации Сунженского района] handed over [the applicants] to [A. I.], the head of the criminal investigation department of the mobile detachment of the Ministry of the Interior [начальник уголовного розыска мобильного отряда МВД РФ по Ингушетии], who transferred them to servicemen of the federal troops. The latter transported [the applicants] in a helicopter to the village of Khankala in the Chechen Republic, where for a period of twenty days they tortured and beat them, forcing them to confess to being members of illegal armed groups.

On 4 January 2002, following [the second applicant’s] application ... criminal proceedings were instituted...

...

[A. I.], who was questioned, stated that on 24 September 2001, following the order of [S. Z.], commander of the mobile detachment of the Ministry of the Interior, he had transported [the applicants] from the Sunzhenskiy ROVD to the territory of a military unit in Nazran, where he had transferred them to servicemen, who had arrived from Khankala. Lieutenant Colonel [A. Iv.] had given him a document stating that he had received [the applicants]. However, the Sunzhenskiy ROVD had not been informed that [the applicants] would be taken to Grozny. When [the applicants] had been transported to the territory of a military unit in Nazran they had not been subjected to any physical coercion.

During the preliminary inquiry [S. Z.], commander of the mobile detachment of the Ministry of the Interior, submitted that following the order of the military unit in Khankala he had ordered [A. I.] to convey [the applicants] from the Sunzhenskiy ROVD to the helicopter that had arrived from Khankala. However, during the investigation [S. Z.] refused to make any statement, invoking Article 51 of the Constitution [which guarantees the right not to incriminate oneself].

With regard to [S. Z.’s] refusal to make a statement it was decided not to institute criminal proceedings on the ground of [the expiry of the statutory time-limits for criminal prosecution].

From expert opinion no. 258 in respect of [the first applicant], it follows that he has two types of injuries: healing scars of burns and healing scars of deep abrasions. However, because of the time that has elapsed it is not possible to establish the degree of bodily harm.

From expert opinion no. 359 in respect of [the second applicant], it follows that he has a blunt injury in the lumbar region with concussion of the kidneys, which amounts to significant bodily harm.

Therefore, from the materials of the case it follows that [the applicants] were unlawfully detained and subjected to coercion in the territory of the Chechen Republic.

The decision of the judge of the Sunzhenskiy District Court [concerning the applicants’ administrative arrest] was lawful and entered into force.

Materials concerning [the applicants’] unlawful detention and application of coercion towards them were separated into a different set of proceedings and have been transferred by reason of territorial jurisdiction to the Prosecutor of the Chechen Republic...

...

Having regard to the foregoing, criminal case no. 22600008 should be closed on the ground of absence of corpus delicti ... in the actions of officers of the Sunzhenskiy ROVD.

...”

On 26 September 2005 the decision to close the investigation was quashed by the Deputy Prosecutor of Ingushetia.

So far the investigation has failed to establish the applicants’ whereabouts from 24 September to 12 October 2001 when, according to the applicants, they had been released. No criminal proceedings had been instituted against the applicants by the prosecuting authorities of the Chechen Republic. The applicants had not been held in facilities for either remand or administrative detention in the Chechen Republic.

When the application was communicated to the respondent Government the Court requested it to submit a copy of the entire investigation file no. 22600008. However, despite the specific request from the Court the Government did not submit any documents from the case file apart from decisions to grant the applicants victim status and to suspend and reopen the investigation. They stated that disclosure of the documents would breach Article 161 of the Code of Criminal Procedure since the file contained information related to military operations as well as personal data of 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”.

3. Civil proceedings for damages

On 15 December 2002 the second applicant brought a civil claim for damages in respect of his allegedly unlawful detention and ill-treatment before the Sunzhenskiy District Court. He claimed 3,000,000 roubles (RUB) for non-pecuniary damage.

On 9 January 2003 the Sunzhenskiy District Court rejected the claim on the ground that the applicant had failed to comply with the out-of-court dispute resolution procedure. The relevant part of the decision reads as follows:

“The present claim cannot be examined for the following reasons.

As shown in the information submitted by the Sunzhenskiy District Prosecutor’s Office ... the materials concerning the unlawful detention and ill-treatment of [the second applicant] were sent to the Prosecutor’s Office of the Chechen Republic for a decision concerning territorial jurisdiction.

Until this matter is resolved, it is not possible to examine the case, since the out-of-court dispute resolution procedure has not been complied with.”

The decision could be appealed against to a higher court. It is not clear whether the second applicant has appealed.

B. Relevant domestic law

Article 267 of the RSFSR Administrative Code, in force until 1 July 2002, provided that a court decision concerning an administrative offence could be appealed against to a higher court. Under Article 268 an appeal could be lodged within ten days from the delivery of the decision. The time-limit for appeal, if it was not met, could be restored by the competent court upon an application by the appellant.

COMPLAINTS

1. The applicants complained under Article 3 of the Convention that they had been subjected to ill-treatment and torture. They referred, in particular, to the methods of ill-treatment used against them in Ingushetia and in Khankala, to the conditions of detention in Khankala and to the threats of execution. The applicants also complained under Article 3 that the authorities had failed to investigate effectively their allegations of ill-treatment.

2. The applicants complained that their arrest and detention had been in breach of the domestic law and Article 5 § 1 of the Convention. They complained that they had not been informed of the reasons for their arrest and detention under Article 5 § 2. They complained under Article 5 § 3 that their detention had not been authorised by a court or a prosecutor and that their right to be released within a reasonable time pending trial had been breached. They also complained under Article 5 § 4 that they had been denied the opportunity to challenge the lawfulness of their detention because they had had no access to either lawyers or legal information and no contact with their families or the outside world. Lastly, they complained under Article 5 § 5 that their right to compensation for detention in contravention of the provisions of Article 5 had been breached, since no inquiry had been conducted by the national authorities into their allegations of unlawful detention.

3. The applicants complained under Article 6 § 1 of the Convention about the length and fairness of the criminal proceedings against them. They also submitted that their right to presumption of innocence, guaranteed under Article 6 § 2, had been breached. They further submitted that, contrary to the requirements of Article 6 § 3, they had not been informed promptly and in detail of the nature and cause of the accusations against them, and that they had had neither adequate time and facilities for the preparation of their defence, nor access to legal assistance.

4. The applicants complained under Article 13 of the Convention that that they had had no effective remedies against the alleged violations of Articles 3 and 5 of the Convention.

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 failure to exhaust domestic remedies, since the investigation into the applicants’ allegations of ill-treatment and unlawful detention had not yet been completed. Furthermore, they had neither appealed against the decision of the Sunzhenskiy District Court of 24 September 2001 concerning their administrative arrest, nor brought a civil claim for damages in respect of their allegedly unlawful detention under Article 1100 of the Civil Code.

The applicants disputed that objection. In their 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. They further argued that a civil claim for damages would not be an effective remedy, since the outcome of civil proceedings would be predicated upon the results of the criminal investigation, which had proved to be futile. The applicants contended that the Government had failed to demonstrate that the remedies to which they referred were effective and, in particular, that they were capable of leading to the identification and punishment of those responsible.

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 applicants complained under Article 3 of the Convention about having been subjected to ill-treatment and torture. They referred, in particular, to the methods of ill-treatment they had been subjected to in Ingushetia and in Khankala, to the conditions of detention in Khankala and to the threats of execution. The applicants also complained under Article 3 that the authorities had failed to conduct an effective investigation into their allegations of ill-treatment. Article 3 of the Convention reads as follows:

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

The Government submitted that since the circumstances in which the applicants had been injured had not yet been established by the investigation, there were no grounds to consider that they had been subjected to inhuman or degrading treatment in violation of Article 3 of the Convention. In the Government’s view, the investigation had been in compliance with Convention requirements.

The applicants contested the Government’s submissions. They reiterated their allegations of having been subjected to torture and ill-treatment by representatives of the federal forces. They maintained that their allegations were supported by the fact that they had been detained by policemen and later transferred to servicemen, which had been acknowledged by the Government. The applicants contended that the domestic investigation into their allegations had been manifestly inadequate, since after several years it had produced no tangible results.

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 applicants complained that their arrest and detention had been in breach of the domestic law and Article 5 §§ 1-4 of the Convention and that they had no enforceable right to compensation for those violations, as provided for under Article 5 § 5 of the Convention. Article 5 of the Convention reads as follows:

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

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 the applicants’ administrative arrest had been ordered by the Sunzhenskiy District Court in a decision of 24 September 2001, of which the applicants had been immediately informed. The Government stated that they had no information about the applicants’ detention between 24 September and 12 October 2001 and that, therefore, there was no evidence that the applicants had been deprived of liberty in violation of Article 5 of the Convention.

The applicants maintained that, after having been brought by policemen to ROVD on 23 September 2001, they had been detained without any lawful basis until 12 October 2001. The decision on their administrative arrest for three days could not have served as such a basis. They argued that their detention had not been duly acknowledged by the authorities, since no relevant records had been produced by the Government. Accordingly, it did not fall under any of the paragraphs of Article 5 § 1 and, therefore, none of the guarantees enshrined in Article 5 had been afforded.

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 noted that “criminal charge” was an autonomous concept under Article 6 of the Convention. They argued that the administrative proceedings against them, which had resulted in the decision of 24 September 2001 on their administrative detention, should be regarded as “criminal”. The applicants complained about the proceedings relying on Article 6 §§ 1-3 of the Convention. Article 6 of the Convention, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Court does not have to decide whether Article 6 of the Convention is applicable to the proceedings in question, since the complaint is inadmissible in any event for the following reasons. The Court notes that a decision on administrative arrest could be appealed against within ten days. Even assuming that the applicants could not have complied with the time-limit for appeal, they submitted no evidence that they had applied for its restoration, as provided for by Article 268 of the Administrative Code.

It follows that this part of the application must be rejected for failure to exhaust domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

4. The applicants complained under Article 13 of the Convention that that they had had no effective remedies against the alleged violations of Articles 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 contended that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. They had been granted victim status in the criminal proceedings and had received reasoned replies to all their applications within the framework of the proceedings. The investigation into their allegations was still pending. At the same time, the applicants had not submitted their complaints concerning their allegedly unlawful detention, or any other complaints, to a court.

The applicants maintained their complaint that they had not had effective remedies by which to complain of the alleged violations of Articles 3 and 5 of the Convention, since their detention had remained unacknowledged and the investigation into their complaints of ill-treatment had been inadequate.

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 of failure to exhaust domestic remedies;

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 3, 5 and 13 of the Convention, and the remainder of the application inadmissible.

Søren NielsenChristos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy