FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 68004/01
by Yakub Adamovich MAGOMADOV and Ayub Adamovich MAGOMADOV
against Russia
The European Court of Human Rights (First Section), sitting on 24 November 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 23 March 2001,
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 applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Yakub Adamovich Magomadov and Mr Ayub Adamovich Magomadov, are Russian nationals who were born in 1967 and 1965 respectively and live in Chechnya. They are represented before the Court by lawyers practicing with the European Human Rights Advocacy Centre (EHRAC)/Memorial in Moscow and in London. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts surrounding the “disappearance” of the applicants’ brother, Ayubkhan Magomadov, and of the first applicant, as presented by the parties, are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
1. Detention and “disappearance” of Ayubkhan Magomadov
The applicants are brothers and live in the village of Kurchaloy in Chechnya. Their brother, Ayubkhan Magomadov, born in 1969, lived in the same house. The applicants’ brother played with the local football team and in 1998 was awarded “The Best Football Player of the Kurchaloy District” award.
The applicants submit that on 2 October 2000 their house and the house of their neighbours were searched by an armed unit of the Federal Security Service (FSB) which arrived in five UAZ vehicles and several armoured personnel carriers (APCs). No documents authorizing the search were presented. The applicants’ brother Ayubkhan Magomadov was arrested in his house by men in military uniforms. They presented no documents and drove him away. The applicants’ brother has not been seen since.
Immediately after Ayubkhan Magomadov’s arrest the family started to look for him. They applied to various law-enforcement authorities in Chechnya and in Moscow, asking for information about him. They have submitted to the Court two copies of letters addressed to the Chechnya Prosecutor, to the Chechnya FSB Department and the Chechnya Department for Interior, as well as the General Prosecutor, the Chief Military Prosecutor, the director of FSB and the Minister of Interior. The relatives received very little substantive information in reply. On several occasions they received copies of letters by which their complaints were forwarded to other authorities.
On 12 October 2000 the head of the criminal police of the Oktyabrskiy Temporary Department of Interior (VOVD) of Grozny (начальник криминальной милиции временного отдела внутренних дел Октябрьского района г. Грозного) Major I. issued a certificate that on 2 October 2000 Ayubkhan Magomadov had been detained in Kurchaloy under suspicion of having committed a serious crime. Once the suspicion had been dispelled, Magomadov was released on 3 October 2000 at 8.30 a.m., after the end of the curfew.
The applicants’ mother submits that when she requested to see the register of detainees in the Oktyabrskiy VOVD for the relevant dates, permission was refused.
On 6 November 2000 the FSB Department for Chechnya informed the applicants’ mother that the officers of the Kurchaloy District department of FSB did not participate in the operation of 2 October 2000. At the same time the letter stated that on 2 October 2000 the head of the district department of FSB, upon request from the Oktyabrskiy VOVD, met with an operative group on the checkpoint between villages Oktyabrskoye and Novaya Zhizn. The letter further explained that Ayubkhan Magomadov visually resembled a “wanted fighter” and because of that the officers of the interior “invited him to the Oktyabrskiy VOVD of Grozny to clarify some questions of interest to them”. The letter concluded that the FSB had no information about the whereabouts of Ayubkhan Magomadov and advised his mother to apply to the Oktyabrskiy VOVD in Grozny.
On 17 November 2000 the Ingushetia Republican Prosecutor forwarded the applicants’ mother’s complaint about her son’s detention to the Kurchaloy District Prosecutor. On 22 November, 1, 7 and 24 December 2000 the Ministry of the Internal Affairs forwarded the first applicant’s complaints to the Department of Internal Affairs of Chechnya. On 13 December 2000 the Chechen Republican Prosecutor’s Office forwarded the applicants’ parents’ complaint about the disappearance of their son to the Kurchaloy District Prosecutor’s Office, with an instruction to open a criminal investigation under Article 126 of the Criminal Code (kidnapping).
On 9 December 2000 the Argun Inter- District Prosecutor’s Office informed the first applicant that a criminal case into his brother’s kidnapping had been opened on that day.
On 20 December 2000 the Chechnya Department of the Interior informed the first applicant that on 2 October 2000 Ayubkhan Magomadov had been detained by the FSB officers under suspicion of involvement in illegal armed groups. He had been brought to the Oktyabrskiy VOVD in Grozny. Following verification, it was established that the detainee had no relation to the illegal armed groups and was released on the same day. However, in view of the curfew he requested to spend the night in the VOVD and was allowed to do so. In the morning of 3 October 2000 he left the VOVD and was never seen again. The letter further stated that the Chernokozovo pre-trial detention centre IZ-4/2 had denied that Magomadov had ever been detained there. On 8 November 2000 a search file no. K-31/2000 had been opened and forwarded to the Oktyabrskiy VOVD as the last place where he had been seen.
On 29 January 2001 the head of the criminal investigations of the Chechnya Department of the Interior stated that the initial complaint about Ayubkhan Magomadov’s disappearance had arrived to the Department on 15 November 2000. It was forwarded first to the Kurchaloy VOVD and then, on 6 December 2000, to the Oktyabrskiy VOVD. There was no news in the case since. The search data base of the Department contained no reference to Magomadov A.A.
On an unspecified date the Chechnya Department of the Interior issued a notice which stated that Ayubkhan Magomadov had been detained on 2 October 2000 by an officer of the Oktyabrskiy VOVD R. together with the officers of the Kurchaloy district department of the FSB upon suspicion of having committed a crime. The detainee was delivered to the Oktyabrskiy VOVD where he was checked and it was established that he had no involvement in the crime. Ayubkhan Magomadov was released at 8.30 a.m. on 3 October 2000 and was never seen again by the VOVD officers. A document concerning the operative measures conducted to verify Magomadov’s involvement in a crime had been issued to the officers of the FSB of the Kurchaloy district.
On an unspecified date a testimonial as to the character of Ayubkhan Magomadov was issued and signed by a number of sports officials of the Kurchaloy district and more then 40 members of the football team and its supporters. It attested to him as a good player and a reliable member of the team and stated that since 1994, when the hostilities started in Chechnya, Ayubkhan Magomadov “had nothing to do with illegal armed groups or with terrorist activities, was not interested in the vahhabist movement, did not use or distribute illegal drugs, did not sell arms”.
On two occasions the NGO Memorial on the first applicant’s behalf addressed the General Prosecutor with requests for information. The letter of 5 March 2001 referred to the contradictory information obtained by the relatives of the “disappeared” man from law-enforcement bodies. It indicated that there were apparently no entries in the register of the detainees of the Oktyabrskiy VOVD referring to Magomadov’s detention and release. They also attached a copy of the statement of the head of administration of Kurchaloy in which he stated that on 2 October 2000 there was a “special operation” in the village, as a result of which Ayubkhan Magomadov had been detained by unknown “military servicemen”. Memorial further requested a number of actions to be taken by the law-enforcement bodies to clarify the circumstances of Magomadov’s detention and to inform the relatives about the investigative measures.
On 19 December 2002 the Chechnya Republican Prosecutor informed the first applicant that on 17 December 2002 a decision to adjourn the criminal investigation in the case where he was a victim had been quashed and the proceedings were resumed. No further details were given.
On 17 March 2003 Memorial again addressed the General Prosecutor requesting information about the criminal investigation into Ayubkhan Magomadov’s disappearance. It appears that this letter remained without answer.
The Government in their memorandum of 16 September 2004 state that the investigation into Ayubkhan Magomadov’s disappearance was adjourned on 28 November 2003. On an unspecified date the investigation was resumed. Referring to the inconsistent documents received from various authorities, the Government state several versions of what happened to Ayubkhan Magomadov on 2-3 October 2000. The investigation failed to identify persons responsible for Ayubkhan Magomadov’s kidnapping or to establish his whereabouts. He was declared a missing person and put on the federal search list. They also state that there exists information that he has been seen in November – December 2000 in the IDP camps in Ingushetia, recruiting fighters for the field commander Ruslan Gelayev.
2. “Disappearance” of Yakub Magomadov
On 31 May 2004 the applicants’ representatives informed the Court about the first applicant’s “disappearance”. They submitted that the first applicant was in Moscow in April 2004. On 19 April 2004 he contacted his relatives for the last time.
They referred to information received from the first applicant’s brother, Ibragim Magomadov, and nephew, Khisir Magomadov. The latter apparently were visited in their house in Kurchaloy on 29 April 2004 by a group of persons in camouflage wearing balaclava masks who were looking for the first applicant. After intervention by other security officers the men in camouflage presented identity documents of the FSB. They instructed Ibragim Magomadov to come to the local FSB office. Several days later at the local FSB office Ibragim Magomadov was told that a criminal case had been opened against his brother, the first applicant. No further details were given.
On 16 May 2004 a man alleging to be a member of the Security Service of the President of Chechnya brought a note to the applicants’ mother’s house. The note was allegedly written by the first applicant and addressed to his family. This note was interpreted by his family to say that the applicant was at that time detained at the main Russian military base in Chechnya, in Khankala.
On 31 May 2004 the applicants’ representatives informed the Court of the first applicant’s alleged detention. They referred to Article 34 of the Convention and linked the first applicant’s arrest with his application to the European Court of Human Rights in connection with his brother’s disappearance.
On 7 June 2004 the Russian Human Rights Commissionaire sent a letter to the Ministry of the Interior, asking them to take all steps to find the whereabouts of an applicant to the European Court. The letter stated that it was not the first occurrence of a disappearance of an applicant to the Court.
On 24 June 2004 the European Court of Human Rights communicated the complaint to the Russian Government. In respect of the first applicant’s alleged detention, the Government were requested to submit additional factual information and to answer if he had been detained by a State authority in April – May 2004 and to provide any available information about his whereabouts.
On 5 July 2004 the Ministry of the Interior responded to the Human Rights Commissionaire and stated that it had verified the information stated in his letter. It has been established that in the beginning of 2004 the first applicant had arrived in Moscow in order to continue the search for his brother, missing since October 2000. On 8 February 2004 the first applicant had been detained by the officers of the interior of the South-Eastern Administrative Circuit of Moscow for an administrative offence – breach of the requirement to have a registration at the place of temporary residence. The letter further stated that the first applicant was not registered as residing in the capital, that he has not been listed among victims of accidents, missing persons, inmates of pre-trial detention centres or wanted persons. No applications were made to the bodies of the interior about his abduction or search.
On 22 July 2004 the Organised crime Department of the Ministry of the Interior forwarded an additional letter to the Human Rights Commissionaire. The letter stated that the criminal case concerning Ayubkhan Magomadov’s abduction was pending with the Kurchaloy District Prosecutor’s Office. As to the first applicant, the Ministry of the Interior had no information about his whereabouts or alleged abduction.
On 29 July 2004 the Russian Government replied to the information request made in respect of the first applicant. They referred to the information obtained from the General Prosecutor’s Office, according to which the relatives of the first applicant had not applied to the law-enforcement bodies with a request to find him. On 1 July 2004 the Kurchaloy District Prosecutor’s Office refused to initiate criminal proceedings into his abduction. On 19 July 2004 the Chechnya Prosecutor reversed this decision and opened criminal investigation under Article 126 of the Criminal Code (kidnapping). The Kurchaloy District Prosecutor’s Office was entrusted with the investigation. The investigation was under way and was supervised by the Prosecutor’s Office. They also undertook to inform the Court of the investigation progress.
The letter further referred to information obtained from the first applicant’s relatives concerning the details of their contacts with his alleged kidnappers and stated that it was impossible to identify those persons. No evidence has been obtained in support of the version that the first applicant had been detained in the Khankala military base. Nor was there any information to link the first applicant with the illegal armed groups operating in Chechnya. Finally, the letter referred to the information from the Ministry of the Interior and the FSB which denied having ever detained the first applicant and stated that they had no information about his whereabouts.
B. Documents submitted by the parties
The parties submitted a number of relevant documents, summarised below.
1. Documents from the investigation file
The Government submitted copies of the investigation file no. 38305 opened in relation to Ayubkhan Magomadov’s disappearance. The case file consists of three volumes, volume one comprising 100 pages, volume two – 350 pages and volume three – 253 pages. The most important documents can be summarised as follows:
a) Decision to open a criminal investigation
On 9 December 2000 a prosecutor of the Kurchaloy District Prosecutor’s Office opened a criminal investigation into the arrest of Ayubkhan Magomadov, born in 1969, by unidentified armed persons on 2 October 2000 at his home in Kurchaloy. The decision referred to Article 127 part 1 of the Criminal Code (unlawful deprivation of liberty).
b) The applicants’ complaints
On 17 October 2000 the applicants’ mother wrote a letter to the Chechnya Prosecutor in which she described the circumstances of her son’s detention on 2 October 2000 and asked him to establish his whereabouts.
On 10 November 2000 she submitted a similar letter to the Ingushetia Prosecutor.
On 17 November 2000 the first applicant and his parents addressed the General Prosecutor, the Chief Military Prosecutor, the head of the FSB and the Minister of the Interior with a complaint about the inaction of the investigating bodies. They referred to the inconsistent statements made by the various authorities and requested a number of investigative steps to find out the whereabouts of their close relative.
On 7 and 13 February 2000 the first applicant wrote to the Prosecutor of Chechnya and complained about the slow investigation of his brother’s abduction and disappearance. He requested to inform him of the results of the investigation. He also offered to assist the investigation in organising the search for his brother.
On 17 December 2002 the investigator informed the first applicant that the investigation of the criminal case had been resumed.
c) Statements by the applicants and their family members
On 22 December 2000 the first applicant was questioned as a witness about the circumstances of his brother’s apprehension and disappearance. In his statement he referred to the document signed by the head of the Oktyabrskiy VOVD that his brother had been released on 3 October 2000, but the family had no news of him ever since.
On 23 December 2000 the investigators questioned the applicants’ mother. She submitted an account of her son’s detention and search for him. She also submitted a photograph of Ayubkhan Magomadov.
On 23 April 2002 the investigators questioned the first applicant. He confirmed that the family had no information about his brother since 2 October 2000. On the same day he was granted victim status in the proceedings.
On 29 May 2002 the first applicant was again questioned about the circumstances of his brother’s detention and the search for him.
d) Statement by the head of the village administration
On 17 June 2002 the investigators questioned the head of the Kurchaloy village administration about the events of 2 October 2000. He stated that on that day at about 2 p.m. he was alerted by the residents that a “sweeping” operation took place at the Magomadovs’ home. When he arrived there he saw two APCs with concealed numbers and about 20 men in camouflage around the house, mostly wearing masks. The head of the administration did not know the servicemen who had conducted the operation and they refused to identify themselves. The officers of the military commander’s office and of the local police station, to whom he personally applied, were not aware of the operation and refused to accompany him to the site. When he returned there a couple of hours later Magomadov’s mother told him that her son had been taken away by the military. About two weeks after the event he was assisting the relatives in the search for Ayubkhan Magomadov and, together with officer B. from the district FSB department, went to the Oktyabrskiy VOVD in Grozny. There the FSB officer went inside and returned in about half an hour later with a letter which confirmed that on 2 October 2000 Magomadov had been detained there, and released on the following day. He had no news of Ayubkhan Magomadov afterwards.
e) Information from the Oktyabrskiy VOVD
On 24 December 2000 the investigator examined the registration books of the Oktyabrskiy VOVD listing persons delivered to the station and of persons detained in the administrative detention cell (изолятор временного содержания, ИВС) between 30 September and 8 October 2000. Ayubkhan Magomadov was not listed in either of the books.
On 2 January 2001 the Oktyabrskiy VOVD confirmed that Magomadov’s name was not listed in their records.
On 9 January 2001 the investigator requested the prosecutor of the Khanty-Mansiysk Region to question the police staff who had been on mission in the Oktyabrskiy VOVD of Grozny in October 2000 about the circumstances of Magomadov’s detention, questioning and release.
On 28 March 2003 the investigator requested the Prosecutor of the Tyumen Region to question Major I. who at the relevant time was the head of the criminal police at the Oktyabrskiy VOVD about the circumstances of detention, questioning and release of Magomadov.
On 4 June 2002 the investigator requested the Prosecutor of the Khanty-Mansiysk Region to question Major I. and officer R. who had at the time served at the Oktyabrskiy VOVD.
On 19 and 20 December 2002 the investigator again requested the Prosecutors of the Khanty-Mansiysk and of the Tyumen Region to question officer R., Major I. and other servicemen, with a detailed list of questions concerning the events of 2-3 October 2000.
On 21 January 2003 officer R. was questioned and stated that he had been on mission in the Oktyabrskiy VOVD on 29 August – 11 November 2000, during which period he had on many occasions participated in operations in the village of Kurcahloy. Therefore he could not recall any specific details about the operation of 2 October 2000. He remembered that he had received operative information from undisclosed sources according to which Ayubkhan Magomadov was an active member of the illegal armed group headed by Gelayev. On 2 October 2000 he took part in the cordoning of the Magomadovs’ house in Kurchaloy, while other servicemen were in charge of Magomadov’s apprehension and questioning. R. stated that he remembered that Magomadov had been released from the VOVD long before the end of the curfew hours and that he was not aware of any documents drawn in respect of his detention, questioning or release. He further stated that he had heard from other servicemen of the VOVD and of the FSB that in the end of October – early November 2000 Magomadov had been seen recruiting new members to the Gelayev’s group in the IDP camps in Ingushetia.
On 14 May 2003 R. was questioned for the second time. He again stated that on 2 October 2000, along with other officers of the VOVD, he accompanied the FSB officers from Grozny to Kurchaloy, where they detained Magomadov and brought him to the VOVD. R. stated that when the group had arrived at Kurchaloy they first visited the district department of the FSB and two officers of that department had accompanied them to the Magomadov’s house. R. could not name any officers of the FSB who had participated in the operation of 2 October 2000 but he was certain that they were from the Grozny Department of the FSB where he had been on many occasions and saw them there. He was also certain that they had “good relationship” with the head of the VOVD and that was the reason why the officers of the VOVD accompanied them to Kurchaloy and afterwards allowed them to question the detainee at their premises. R. stated that some FSB officers told him that Magomadov was involved in the purchase of armaments and supplying them to the bandits, and that later he had been seen in Ingushetia recruiting fighters. On 18 December 2003 R. was shown a photograph of Ayubkhan Magomadov, but did not identify him.
On 11 March 2003 the investigation questioned Major I., who at the relevant time was the head of the criminal police at the VOVD. He stated that he had previously been questioned by an investigator from the Grozny prosecutor’s service, but the case file contains only one record of his interrogation. Major I. stated that a group of FSB officers had brought a detainee to the premises of the Oktyabrskiy VOVD and questioned him there. He was not aware of any details of the case and gave no orders to detain or question Ayubkhan Magomadov. The officers of the VOVD had not participated in the detention or questioning of the detainee, and he has not been placed in the administrative detention cell of the department. Major I. testified that he had seen the detainee while he had been questioned by the officer in charge of the FSB group, that the detainee looked normal and that no physical pressure had been put on him. On the following day he asked the FSB officers if there were any unauthorised persons at the VOVD premises, to which they replied in the negative. Major I. denied that he had issued the notice of 12 October 2000 which confirmed Magomadov’s detention at the VOVD, denied that he had seen the text before or signed it. He alleged that some FSB officers had requested him to issue such a notice but that he had refused to do so.
In June 2003 a graphology examination concluded that it was impossible to determine whether it was indeed Major I.’s signature on the notice, due to insufficient amount of the material under examination.
On 7 December 2003 the investigator was informed that further questioning of Major I. was not possible because the latter had quit the service and left his previous place of residence.
On 28 April 2003 the investigation questioned Colonel S., who at the relevant time had headed the Oktyabrskiy VOVD of Grozny. He stated that the officers of the department had participated in many special operations, that he could not recall any details about 2 October 2000 and that all information should be available in the appropriate records of the VOVD.
In January – June 2003 the investigators questioned more than 60 servicemen of the Khanty-Mansiysk and Tyumen regional departments of the interior, who in August – November 2000 had staffed the Oktyabrskiy VOVD in Grozny. None of the servicemen admitted taking part in the detention or questioning of Ayubkhan Magomadov, and no one identified him on the photograph. The officers responsible for the administrative detention cell stated that all detainees had been properly recorded, that the cell was the only place used for detention in the department and that the records were left in the VOVD to the next shift. They stated that the detainees could only be transferred to another law-enforcement body, such as the FSB, upon a written order of the head of the VOVD.
The investigators also identified persons who had been detained in the administrative detention cell of the Oktyabrskiy VOVD. Two of them were questioned in December 2003, and both stated that Ayubkhan Magomadov had not been detained with them there or in the Chernokozovo SIZO in August 2000 – March 2001.
f) Information from the FSB
In response to the investigator’s request of March 2002, the Kurchaloy district department of the FSB on 10 April 2002 denied any involvement in the detention of Magomadov.
On 27 April 2002, following a specific request by the first applicant, the investigator requested the head of the Chechnya Department of the FSB to identify and question officer “P.” who had headed the Kurchaloy district department of the FSB in October 2000, and who had allegedly participated in Magomadov’s detention and questioning.
On 4 June 2002 the investigator requested the Kurchaloy District department of the FSB to submit a copy of the document allegedly issued to them by the Oktyabrskiy VOVD concerning the operative measures conducted to verify Magomadov’s involvement in a crime. He also requested the department to identify and question officer P. and any other persons who had been involved in the operation of 2 October 2000 and the questioning of Magomadov.
On 18 June 2000 the Kurchaloy District department of the FSB replied to the investigator that their office had no archives and therefore was unable to submit a copy of the document requested.
On 23 June 2002 the Chechnya Department of the FSB informed the investigator that they had no information about the operation of 2 October 2000 or about the detention of Magomadov. They also stated that the officer who had been in charge of the district department at the relevant time had returned to his permanent place of service after the completion of his mission, and that this whereabouts would be communicated later.
On 26 November 2003 the Chechnya Department of the FSB again stated that their service had not detained Ayubkhan Magomadov and had no information about him.
g) Other documents related to the search for Ayubkhan Magomadov
On 10 December 2000 the investigator requested the military commander of the Kurchaloy District to inform him which military units had participated in the special operation on 2 October 2000 and where was Ayubkhan Magomadov. In an undated reply, the district military commander denied that any special operations with the participation of the military servicemen had taken place in Kurcahloy on that date and stated that the commander’s office had no information about the whereabouts of the missing person.
On 9 January 2001 the investigator requested the prosecutor of Grozny to verify if Magomadov was still detained in the Oktyabrskiy VOVD, since he had not been heard of after his alleged release on 3 October 2000.
In March 2002 the investigator forwarded a number of requests to the departments of the FSB, of the military commanders’ office, the Kurchaloy and Oktyabrskiy district departments of the interior (ROVD), detention facilities in the Northern Caucasus. The requests sought information about the operation carried out on 2 October 2000 in Kurchaloy, alleged detention of Ayubkhan Magomadov in the Oktyabrskiy VOVD on 2-3 October 2000, witnesses and persons responsible for questioning him, his current whereabouts. To the letters were attached Magomadov’s photographs and description. The relevant authorities were requested to submit copies of the custody records for the periods in question.
In reply to the requests, the military commander’s office of the Kurchaloy district on 6 April 2002 stated that their servicemen had not participated in any operations on 2 October 2000 and had no information about the whereabouts of Ayubkhan Magomadov. Similarly, the Kurchaloy ROVD replied that their officers were on mission in Chechnya since 29 February 2002 [so in the text] and that upon arrival they had not received registration documents relating to 2000.
In 2002-2003 the regional departments of the Ministry of Justice in the Northern Caucasus responsible for the pre-trial detention facilities and the regional departments of the FSB stated that Ayubkhan Magomadov’s name was not in their respective lists of detainees.
On 24 April 2002 the Kurchaloy VOVD informed the investigators that on 28 June 2001 they had opened a search file no. 15/15 in respect of the missing person – A.A. Magomadov. Previously a search file had been opened by the Oktyabrskiy VOVD under no. 3/03.
In 2003 the regional departments of the Ministry of the Interior in the Southern Federal Circuit, in reply to the investigator’s requests, confirmed that Ayubkhan Magomadov was on the federal search list as a missing person, but that they had no further information about him.
In November 2003 the investigators requested the Chechnya Department of the Interior to submit any available information about Ayubkhan Magomadov’s involvement with the illegal armed groups. They also requested the Zavodskoy VOVD of Grozny to submit a copy of the search file opened by that office. It appears that both requests remained unanswered.
h) Documents related to the search of other “disappeared” persons
The copy of the case file no. 38305 contains several documents related to other criminal cases investigated by the same prosecutor, concerning “disappearances” of several persons allegedly after their detention at the Oktyabrskiy VOVD in Grozny in September - October 2000. According to these documents, on 29 September 2000 the officers of the VOVD detained K. Machigov near a café at Lenina Street and delivered him to the VOVD, after which he “disappeared”. On 6 October 2000 unidentified military servicemen detained B. Aliyev at the road block no. 102 near the Minutka Square in Grozny because he had been carrying an invalid identity document and brought him to the Oktyabrskiy VOVD, after which the whereabouts of Aliyev are unknown. On 19 October 2000 unknown military servicemen detained M. Tovsultanov in the Lenina Street and delivered him to the Oktyabrskiy VOVD, after that he “disappeared”. On 17 October 2000 A. Zaurbekov arrived to the Oktyabrskiy VOVD where he had been employed on a temporary contract to receive the discharge. After receiving his discharge he was seen in the courtyard of the VOVD and then “disappeared”, his whereabouts remain unknown. The officers of the VOVD questioned about these persons denied having seen or detained them.
i) Decisions to adjourn and resume the investigation and prosecutor’s orders
On 9 March 2001 the investigator of the Argun District Prosecutor’s Office adjourned investigation in the criminal case no. 38305 due to failure to identify the culprits.
On 13 February 2002 a prosecutor from the Chechnya Prosecutor’s Office quashed the order of 9 March 2001 and forwarded the case for additional investigation to the Argun District Prosecutor’s Office. The order also listed a number of actions necessary for the conduct of the investigation, including identification and questioning of the officers of the Oktyabrskiy ROVD and other law-enforcement authorities who had been responsible for his detention, questioning and release.
After that the investigation was adjourned for failure to identify the culprits on at least six occasions, and then resumed again. The last document in the investigation file is dated July 2004 and refers to the communication of the present application to the Russian Government.
2. Documents submitted by the applicants
The applicants submitted information related to other cases of “disappearances” in Grozny in 2000 -2001. They stated that there were several dozen cases of disappearances in the Oktyabrskiy district in 2000-2001. They listed 11 persons who had been detained in February – September 2000 and who had been last seen alive at the Oktyabrskiy VOVD, after which they “disappeared” or were found dead. In all cases criminal investigations and /or search files were opened but produced no results.
The applicants also submitted information about the trial in 2005 of a police officer Sergey L. from the Khanty-Mansiysk Region who was charged with abuse of power, causing grave bodily harm and fraud committed in January 2001. According to the cited bill of indictment, the officer was charged with severely beating a detainee at the premises of the Oktyabrskiy VOVD of Grozny on 2 January 2000. According to the witness statements, as a result of the beatings the detainee lost consciousness and suffered from numerous fractures and traumas. In order to conceal the crime, on the following morning the officer forged a notice of release and drove away the detainee who had never been found and is considered missing.
COMPLAINTS
1. The applicants complain under Article 2 of the Convention that Ayubkhan Magomadov’s right to life has been violated. They also complain that there has been no effective investigation into the circumstances of his disappearance.
2. The applicants complain under Article 3 that there are strong reasons to believe that Ayubkhan Magomadov has been subjected to torture.
3. The applicants complain that the prolonged uncertainty surrounding their brother’s disappearance caused them suffering attaining the level of treatment proscribed under Article 3.
4. The applicants complain, under Article 5 of the Convention, that Ayubkhan Magomadov’s detention was unlawful and in violation of the guarantees contained in Article 5 of the Convention.
5. The second applicant submits that the “disappearance” of the first applicant in 2004 is linked to the application to the European Court of human rights and constitutes a grave breach of the Russia’s obligation not to hinder the right of individual petition under Article 34 of the Convention.
THE LAW
The applicants allege violations of Articles 2, 3 and 5 of the Convention. The second applicant also refers to Article 34.
1. The Government
The Government submit that there is no conclusive evidence to support the applicants’ allegations that the authorities ill-treated Ayubkhan Magomadov or that he is dead. The investigation collected evidence that Magomadov had indeed been invited to proceed to the Oktyabrskiy VOVD in order to verify operative information, but he had not been detained by any law-enforcement agency and therefore no records of such detention exist. While in the VOVD building, Magomadov was in a proper physical and mental state, he was not subjected to violence. The Government refer to the information according to which he was seen in Ingushetia after 3 October 2000 recruiting fighters. The investigation into his disappearance is being carried out in accordance with the domestic legislation and all reasonable steps to establish his whereabouts have been taken. His name is on the federal list of missing persons and the search continues.
The Government suggest that the applicants’ complaints are manifestly ill-founded within the meaning of Article 35 § 3 and ask the Court to declare them inadmissible in accordance with Article 35 § 4 of the Convention.
As to the second applicant’s allegation about the “disappearance” of the first applicant and the breach of the obligation not to hinder the right of individual petition, the Government submit that there is no information to support the allegations that the first applicant had ever been detained by a law-enforcement agency. The persons mentioned by the second applicant’s family as being aware of the first applicant’s whereabouts could not be identified, and a criminal investigation opened into their complaint of kidnapping is ongoing.
2. The applicants
The applicants maintain their complaints.
Under Article 2 the applicants argue that there can be no reasonable doubt that on 2 October 2000 the State agents detained Ayubkhan Magomadov, failed to record the detention and then deprived him of his life. More than four and a half years later no information has been obtained about his whereabouts. They argue that the situation of unacknowledged detention in Chechnya should be regarded as life-threatening and refer to other reported cases when persons detained in similar circumstances have disappeared or were later found dead.
The applicants allege that the authorities failed to conduct an effective investigation into the circumstances of Ayubkhan Magomadov’s detention and disappearance, in violation of the procedural obligations under Article 2. They argue that the investigation fell short of the standards of the European Convention and of the national legislation. They point to the passage of considerable time – more than four years – without the investigation producing any known results. They argue that the investigation was not prompt because of the delay in opening and in taking important steps. A number of investigative actions were never taken, such as questioning of certain senior officers of the VOVD, identification and questioning of the FSB officers responsible for the detention.
The applicants submit that in view of the situation at the Oktyabrskiy VOVD at the relevant time there are reasons to believe that Magomadov has been subjected there to treatment prohibited under Article 3 of the Convention.
Referring to the established Court’s practice, the applicants claim that they themselves are also victims of treatment falling within the scope of Article 3 as a result of anguish and emotional distress they have suffered in connection with the disappearance of their brother and the authorities’ response to their suffering.
Under Article 5 the applicants submit that Ayubkhan Magomadov has been subjected to unacknowledged detention, in violation of the principles defined by Article 5. In support of their complaint they refer to the following evidence: the eye-witness statements about Magomadov’s detention by uniformed servicemen who placed him into an APC, letters of the various authorities which stated that the servicemen of the FSB and of the Oktyabrskiy VOVD had been involved in his apprehension and the eye-witness statements of the officers who had seen Magomadov in the VOVD building on 2 October 2000. They stress that no valid reasons have been invoked by the Government to explain the detention, and no official records of the detention or release have been submitted. They argue that the State failed to explain what has happened to Ayubkhan Magomadov after he has been allegedly released from custody.
The second applicant maintains that the “disappearance” of the first applicant in 2004 is connected with the application to the European Court of human rights and constitutes a breach of the Russia’s obligation not to hinder the right of individual petition under Article 34 of the Convention.
3. The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaints raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy