FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41840/02
by Alaudin Magomedovich SADYKOV
against Russia
The European Court of Human Rights (First Section), sitting on 22 January 2009 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 15 February 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 applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Alaudin Magomedovich Sadykov, is a Russian national who was born in 1950 and lives in Grozny, the Chechen Republic. He is represented before the Court by lawyers of the Stichting Russian Justice Initiative, an NGO based in the Netherlands with a representative office in Russia. The respondent Government were represented by Mr P. Laptev, 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.
1. Events between 5 March and 24 May 2000
(a) The applicant’s submissions on the facts
In the applicant’s submission, he experiences difficulties in reconstructing coherently and chronologically the events during and following his detention. On account of his ill-treatment in custody, the applicant suffers from lapses in memory. He also finds it psychologically difficult to recall the details of the abusive treatment he was subjected to in detention.
The applicant owns real estate consisting of a house and a garage at 94 Flotskaya Street, the Oktyabrskiy District of Grozny. At the material time he lived there alone, since his relatives had left Chechnya after the renewal of hostilities in October 1999. The applicant remained in Grozny to look after the house and the property. The property comprised personal belongings of the applicant and his relatives, furniture, an audio system, a satellite dish, two Subaru vehicles and an Oldsmobile car. Between late 1999 and early 2000 the applicant only lived in the house occasionally because of the frequent attacks. From late January 2000 onwards he lived in the house permanently.
At the material time the applicant, a school teacher by profession, worked in a “burial group” (группа захоронения) of the Ministry for Civil Defence and Emergency Situations of the Chechen Republic (Министерство Чеченской Республики по делам гражданской обороны и чрезвычайным ситуация). He also helped the residents of the Oktyabrskiy District of Grozny to get drinking water and food.
(i) The applicant’s arrest
On 5 March 2000, around 10 a.m., the applicant was distributing drinking water among the residents of the Oktyabrskiy District, when a group of federal servicemen in two UAZ vehicles arrived and enquired as to how they could get to a certain street. The applicant and some other residents explained to the military how to find that street, but the commander of the group asked the applicant to come along and show the way. The applicant agreed. The applicant submitted eyewitness statements by two residents of the Oktyabrskiy District who confirmed the above episode.
When the servicemen arrived at the street they were searching for, the applicant asked them to let him out. Instead, the military hit the applicant in his kidney area and put a bag on his head. They ordered the applicant to be silent and delivered him to the Temporary Office of the Interior of the Oktyabrskiy District of Grozny (“the Oktyabrskiy VOVD”, временный отдел внутренних дел Октябрьского района г. Грозного). According to the applicant, the officers who apprehended him did not know his identity, as they did not check his identity papers.
(ii) The applicant’s detention on 5 March 2000
At the Oktyabrskiy VOVD, for several hours, the officers intimidated and ill-treated the applicant. In particular, they severely beat him, cut his hair and forced him to chew and swallow it, pressed a red-hot nail to his hands, forehead, nostrils and tongue and carved a derogatory word “Chichik” on his forehead with a nail or knife.
The officers also questioned the applicant but made no written record of the interrogation. They asked the applicant where he had fought as a rebel fighter and why there was a list of names in his pocket. The applicant answered that he was a teacher, had never fought and that the list included the resident of the Oktyabrskiy District of Grozny to whom he distributed water. It appears that the officers did not believe him. They told him that he would not leave the premises of the Oktyabrskiy VOVD alive.
Then the officers took the applicant to a basement, put him against the wall and started shooting around him. Then they told the applicant that he should “wait a little longer to die” and that they had not “[had] enough of mocking him yet” and took a break.
Some time later they returned to the basement with several other officers and started “playing football” with the applicant. They knocked him off his feet and kicked and threw him with their feet onto the concrete floor for about two hours. From time to time the applicant lost consciousness, but the officers brought him round. According to the applicant, he lost most of his teeth and his ribs, jaw, arm and leg were broken as a result of this treatment.
(iii) Search in the applicant’s house on 5 March 2000
Around 5 p.m., one of the officers suggested that they should go to the applicant’s place of residence and “seize his firearms” and a group of about eleven officers in two UAZ vehicles went there. The applicant was put into the boot of one of the cars.
On the spot the police compelled the applicant to unlock all the doors in the house and started searching. They did not produce a search warrant or call any attesting witnesses. The search lasted for a few hours. The officers entered all the rooms, the basement and the car box and climbed on the roof. In the applicant’s submission, he was unable to keep an eye on all the officers at the same time. At some point during the search one of the officers called the applicant into the corridor, showed him a certain object which resembled a piece of soap and later turned out to be a trotyl block (TNT) and asked what it was. The officer claimed that he had found the object on a dish shelf. The applicant answered that he was unable to identify the object, as it was the first time he had seen it.
After the search the applicant was again put into the boot and escorted to the Oktyabrskiy VOVD. There the applicant was fettered to a heater.
(iv) The applicant’s detention between 6 and 10 March 2000
The applicant spent the next two days chained to the heater pending the construction of a new cell.
On one of these days an investigator whose surname was Pugachev or Pavlenko visited the applicant and interrogated him. He enquired as to where the applicant had obtained the trotyl block. The applicant denied that he had ever possessed explosives and insisted that the trotyl block had been planted in his house during the search on 5 March 2000. The investigator then called two masked men who beat the applicant until he lost consciousness. Later that day the two men returned and again beat him. The applicant submitted that during the next two days he spat blood and was unable to get up.
Around 7 March 2000 the officers twice put the applicant into the boot of a police car and drove him around for some time.
On 7 March 2000 the applicant was transferred to a newly constructed cell. Some time later another detainee was placed in the applicant’s cell and two detainees in the adjacent one.
On 10 March 2000 an investigator informed the applicant that an expert study of the object found in his house had confirmed that it contained explosives. The investigator did not show the expert examination report to the applicant.
(v) Events of 11 March 2000
On 11 March 2000, in the evening, three servicemen approached the applicant’s cell and ordered the guards to open it. The guards who appeared to be afraid of the men complied with the order. According to the applicant, the men were drunk and one of them was wearing a mask. They started beating the applicant. After a while one of the men put his foot on the applicant, who was lying on the floor, took a knife and cut off his left ear. He also declared that he would cut off the applicant’s head and made a scratch on the applicant’s throat. In the applicant’s submission, the man had a horseshoe-shaped moustache. Then another man entered the cell and took pictures of the bleeding applicant and his cut ear. According to the applicant, the man who took pictures was of Uzbek origin, his first name was Andrey and he served as a guard at the Oktyabrskiy VOVD.
The applicant submitted statements by his cellmate who had witnessed the applicant’s ill-treatment. The applicant further referred to a statement of the then Mayor of Grozny, Bislan Gantamirov, who claimed in his interview to a regional weekly newspaper Groznenskiy Rabochiy (17 – 24 May 2000) that he had “a witness who had seen the deputy head of the Oktyabrskiy VOVD cut off the ear of one of the Chechen detainees”.
Then the officers left and entered the adjacent cell in which two other detainees were kept. According to the applicant, he heard screams and moans which became lower and then died out. The applicant never saw those detainees thereafter.
(vi) The applicant’s detention between 12 and 18 March 2000
Early on 12 March 2000, when the applicant and his cellmate were asleep, the guards forced them to get up, put bags on their heads and escorted them to a small room. Several hours later the applicant and his cellmate were returned to their cell which had been thoroughly cleaned. The applicant saw the other cell since its doors were wide open. It was also clean and there were no detainees there. In the applicant’s opinion, the VOVD authorities hid him and other detainees from a commission that was visiting police stations to inspect the treatment of detainees.
Around 13 March 2000 an official of the Grozny prosecutor’s office (прокуратура г. Грозного), Vladimir Lozitskiy, visited the applicant and warned him not to disclose the fact that he had lost his ear in detention. Instead, the applicant had to state that his ear had been cut off by the Chechen rebel fighters.
Around 16 March 2000, a medical officer whose first name was Gennadiy visited the applicant. He put some ointment on the applicant’s ear wound, but did not bandage it. Nether did he examine the applicant or treat his other injuries. According to the applicant, while in detention, he was attended by the medical officers on several occasions, but never underwent any medical examination or received proper treatment for his ear.
(vii) The applicant’s detention between 19 March and 24 May 2000
Around 19 March 2000 the applicant was transferred to a basement of another building of the Oktyabrskiy VOVD where he was kept until his release on 24 May 2000.
The basement was divided into two rooms. One of them, measuring approximately 48 square metres (8 m x 6 m), was used as a torture chamber and contained various instruments, including an axe, a hammer, a sledgehammer, a shovel and scissors. The applicant submits that he was ordered to clean that room once and noticed bloodstains even on the ceiling which was 3 m high.
The other room, measuring approximately 9 square metres (3 m x 3 m), was a cell. During the applicant’s detention 12 to 15 detainees were kept there. In the applicant’s submission, on numerous occasions his cell mates were taken to the adjacent room and tortured. He could hear them screaming. Sometimes the door between the two rooms was left open and the applicant could see his cell mates being severely ill-treated. They returned to the cell severely beaten, two of them had their fingers missing and another detainee was brought back unconscious.
On several occasions the investigator interrogated the applicant about the object allegedly found in his house on 5 March 2000. The applicant was forced to sign a confession stating that the object in question belonged to him. The investigator also questioned the applicant about the activities of his neighbours. No transcript of those interrogations was ever made.
From time to time the guards took the applicant from his cell to other rooms for a short period of time, apparently when inspections occurred, and then took him back.
(viii) Search for the applicant
At some point in March 2000, the applicant’s sister, Ms Leyla Sadykova, and his cousin, Ms Khizhan Zakriyeva, found out that the applicant had disappeared. They returned to Grozny and started searching for him.
They applied in person and in writing to a military commander’s office, the Oktyabrskiy VOVD, the local administration, the detention centre in Chernokozovo, the federal military base in Khankala and a morgue, but to no avail.
Some time later the applicant’s sister received information that he had been seen in the Oktyabrskiy VOVD. In the following weeks the applicant’s sister and cousin unsuccessfully applied to the Oktyabrskiy VOVD with enquiries about the applicant.
At some point in April 2000 the applicant’s relatives finally managed to talk to the investigator in charge, who told them that the police had found explosives in the applicant’s house. Ms Sadykova answered that it was untrue and that her brother had never participated in military actions. The applicant’s relatives then requested permission to see the applicant, but this was refused. However, they were allowed to send him a note and fresh clothes. The applicant’s old clothes were returned to the applicant’s sister, who checked them and saw blood on the applicant’s shirt covering a shoulder and the back.
In the following weeks the applicant’s relatives unsuccessfully requested authorisation to see the applicant.
On 12 May 2000 new police officers arrived from the Khanty-Mansiysk Region of Russia and replaced the staff of the Oktyabrskiy VOVD. Several days later Ms Sadykova and Ms Zakriyeva were allowed to see the applicant for 10 minutes in the presence of an investigating officer. They were ordered to speak Russian only. According to them, the applicant was swollen, had lots of scars and one of his ears was missing.
(ix) The applicant’s release
On 24 May 2000 an investigator of the Oktyabrskiy VOVD issued a decision to discontinue criminal proceedings in case no. 14206/03 instituted against the applicant for unlawful possession of explosives. The decision stated that the applicant had not lived in his house on a regular basis because of the hostilities and for some time the house had been occupied by unknown armed men who may have brought the explosives which the applicant had then unintentionally kept. Besides, the decision stated that “having been kept in detention, the applicant ceased to pose danger to society” and could be released. It also explained the applicant’s right to appeal against that decision to a prosecutor or in court. The applicant furnished the Court with a copy of that decision.
Later that day the applicant was released and returned home. According to eyewitness statements, the applicant was in a very poor condition, swollen, emaciated and pale, his left ear and teeth were missing, and his hip was broken.
(b) The Government’s submissions on the facts
According to the Government, on 5 March 2000 the investigating division of the Oktyabrskiy VOVD instituted criminal proceedings in case no. 14206/03 against the applicant on suspicion of having committed a criminal offence punishable under Article 222 of the Russian Criminal Code (unlawful possession of firearms and explosives).
During a search which was carried out in the applicant’s house pursuant to an investigator’s order of 5 March 2000 an explosive was found and seized. According to an expert report of which the applicant was notified the explosive was a 200-gram trotyl block.
On the same date the applicant was apprehended pursuant to Article 122 of the Code of Criminal Procedure.
On 6 March 2000 the case was sent to another division of the Oktyabrskiy VOVD for further investigation.
On 8 March 2000 the acting prosecutor of Grozny ordered the applicant’s remand in custody, in accordance with Article 90 of the Code of Criminal Procedure.
On 15 March 2000 formal charges under Article 222 of the Criminal Code were brought against the applicant. When interrogated, the applicant was unable to give any explanations concerning the explosive found in his house.
According to the Government, when being apprehended and participating in investigative actions the applicant was shown necessary procedural documents and received explanations as regards his right to defence; however, he waived his right to retain a lawyer. During the period of the applicant’s detention, its term was extended by a competent official in accordance with a procedure established by law.
On 24 May 2000 the Oktyabrskiy VOVD discontinued the criminal proceedings against the applicant with reference to Article 6 of the Code of Criminal Procedure, and notably because he had ceased to pose danger to society, and released him.
2. Official investigation into the applicant’s allegation of ill-treatment
(a) The applicant’s complaints to public bodies and information received by him
Shortly after his release, the applicant started complaining personally and in writing to various official bodies about his unlawful arrest and detention, ill-treatment in custody and the search in his house. The applicant’s efforts were supported by the SRJI. According to the applicant, his complaints mostly remained unanswered, or only formal responses were given by which the respective requests were forwarded to various prosecutor’s offices “for examination”.
In particular, on an unspecified date he applied in writing to the Prosecutor General of Russia, the prosecutor of the Chechen Republic, the Minister of the Interior of the Chechen Republic and two other high-ranking officials. In his complaint the applicant described in detail the events of 5 March to 24 May 2000 and requested that those responsible be punished.
On 23 October 2000 the Representative for Rights and Freedoms in Russia (Уполномоченный по правам человека в Российской Федерации) declined to examine the applicant’s complaint on the ground that it was unclear and not supported by relevant documents.
On 1 March 2001 the General Prosecutor’s Office of Russia (Генеральная Прокуратура РФ) referred the applicant’s complaint to the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”).
In a letter of 22 March 2001 the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102) forwarded the applicant’s complaint, along with several other applications, to the republican prosecutor’s office.
On 22 March and 16 April 2001 the republican prosecutor’s office transmitted the applicant’s complaints concerning his unlawful detention “by unidentified servicemen” to the Grozny prosecutor’s office.
On 13 July 2001 Médecins Sans Frontières issued the applicant with a medical certificate which listed the after-effects of the injuries inflicted on the applicant during his detention. It stated that a medical examination of the applicant on 13 July 2001 had revealed the following:
“– [The applicant] wears dentures which replace teeth 12 to 17, 22 to 27, 33 to 35, 42 to 45. The original teeth were broken during his detention.
– The bridge of the nose is crooked, suggesting a possible set fracture.
– The left ear-lobe is missing, and, while the auditory canal is not obstructed, the hearing capacity of the left ear is diminished. A shiny scar is visible, which extends 6 cm from the external auditory canal towards the bottom part of the lower jaw and 5 cm towards the mastoid bone and slightly beyond.
– A star-shaped scar is present on the palm of the right hand, suggesting a non-transfixiant burn or wound. It is located opposite the 4th metacarpien.
– At the palpation of ribs 8, 9 and 10 facing the interior arc, are located still sensitive bone calluses, likely resulting from clean rib fractures.
– At the palpation of the top of the lower1/3 tibia of the right leg is a discrete bone callus which could be connected to a non-displaced fracture or an incomplete fracture of the tibia.”
On 4 and 25 July 2001 respectively the applicant complained in writing to the head of the administration of the Oktyabrskiy District of Grozny and to the prosecutor of Grozny about the theft of his Oldsmobile car by police officers of the Oktyabrskiy VOVD.
On 27 July 2001 the applicant lodged a written complaint to the prosecutor of Grozny, describing the circumstances of his apprehension, detention, ill-treatment and the theft of his property and requested that those responsible be punished.
On 28 July 2001 the Grozny prosecutor’s office forwarded the applicant’s complaints to the Oktyabrskiy VOVD for investigation.
On 19 December 2001 and 29 January 2002 the SRJI, on the applicant’s behalf, submitted similar complaints about the events of 5 March to 24 May 2000 to the republican prosecutor’s office.
In a letter of 3 January 2002, in reply to the SRJI query, the republican prosecutor’s office stated that criminal proceedings had been instituted in connection with the applicant’s allegations of maltreatment in the Oktyabrskiy VOVD. The letter did not indicate the date of the institution of the criminal proceedings or the number of the criminal case file.
On 13 April 2002 the applicant filed in the republican prosecutor’s office a request that criminal proceedings be instituted in connection with his unlawful apprehension and detention, ill-treatment in custody and theft of his property.
In the applicant’s submission, despite his requests, the authorities never informed him of the date on which the criminal investigation into his allegations had been commenced or of the registration number of his case, whether he had been granted victim status, and whether there were any developments in the case or what investigative steps, if any, had been taken.
(b) Information submitted by the Government
According to the Government, on 30 June 2000 the applicant complained to the Grozny prosecutor’s office that he had been unlawfully apprehended on 5 March 2000, and ill-treated while in detention, by officers of the Oktyabrskiy VOVD.
On 13 July 2000 the Grozny prosecutor’s office instituted criminal proceedings in the above connection under Article 286 (3) of the Russian Criminal Code (aggravated abuse of power). The case file was given the number 12088.
In the Government’s submission, the applicant was granted the status of victim on 18 July 2000 and questioned on 17 July 2000, 25 August and 19 October 2001, 3 December 2003, 16 and 23 April and 1 November 2004. He confirmed his version of events and stated that he had not applied to medical institutions after his release.
On 13 August 2000 the investigating authorities suspended the criminal proceedings for failure to establish those responsible.
On 24 August 2001 the Grozny prosecutor’s office ordered that the investigation be resumed.
On 30 August 2001 the Grozny prosecutor’s office instituted criminal proceedings under Article 158 (2) of the Russian Criminal Code (aggravated theft) in connection with the theft by unidentified persons of an Oldsmobile car belonging to the applicant. The case file was assigned the number 15082.
By a decision of 5 September 2001 the investigator in charge joined criminal cases nos. 12088 and 15082 under the former number.
On 24 September 2001 the criminal proceedings were stayed as it was impossible to identify the alleged perpetrators.
On 6 October 2001 the republican prosecutor’s office quashed the above decision and took up the case.
On 6 November 2001 the investigation was again suspended for failure to establish who was responsible.
According to the Government, on 19 December 2001 the investigation was resumed and then suspended on the same date.
On 30 December 2001 the criminal proceedings were resumed and then stayed on 30 January 2002.
By a decision of 18 July 2002 the republican prosecutor’s office resumed the proceedings. On the same date the deputy prosecutor of Grozny ordered that criminal case no. 12088 be joined to two other criminal cases concerning the abduction by officers of the Oktyabrskiy VOVD and disappearance of several individuals.
On 18 October 2002 the investigation was suspended for failure to identify the alleged perpetrators.
On 15 November 2002 the republican prosecutor’s office ordered that the criminal proceedings be resumed.
By a decision of 19 May 2003 the investigator in charge brought charges under Article 293 (2) of the Russian Criminal Code (aggravated duty negligence) against Mr Z., who from February until May 2000 had been seconded to Grozny as the head of the convoy group of the temporary isolation ward of the Oktyabrskiy VOVD. On the same date the investigator in charge ordered that Mr Z. be banned from leaving the specified place and put on the wanted list.
On 20 August 2003 the investigation was stayed pending the search for Mr Z.
On 26 November 2003 the criminal proceedings were resumed and then again adjourned on 3 December 2003.
Thereafter the investigation was resumed and suspended on 13 April and 13 May 2004 respectively.
On 20 October 2004 the criminal proceedings were reopened and then stayed on 26 November 2004.
On 26 May 2005 the investigation was resumed and then suspended on 4 July 2005.
By a decision of 17 August 2005 the republican prosecutor’s office ordered the resumption of the criminal proceedings.
On 30 September 2005 the proceedings were stayed owing to a failure to identify the alleged perpetrators.
By a decision of 21 November 2005 the deputy prosecutor of Grozny ordered that the investigation be resumed and that a number of measures be taken, in particular, that the criminal proceedings against Mr Z. be disjoined into a separate set, and that procedural decisions be taken against other police officers identified by the applicant as those who had ill-treated him.
The Government also submitted, without specifying the dates, that a number of investigative actions had been taken during the investigation. In particular, the authorities had interviewed a number of police officers serving in the Oktyabrskiy VOVD at the relevant time.
In the Government’s submission, Mr P., seconded to Grozny as a senior inquiry officer, stated that when being questioned during his detention the applicant had submitted that four or five unknown persons had cut off his ear a day before he had been apprehended. Mr P. also stated that the applicant had received necessary medical aid during his detention. Mr D., who at the relevant time was the acting head of the Oktyabrskiy VOVD, gave similar oral testimony. Mr Kir., who at the relevant time was an officer of the temporary isolation ward of the Oktyabrskiy VOVD, stated that he had learnt from the applicant that his ear had been cut off a day or two prior to his detention by unknown members of illegal armed groups for the applicant’s refusal to cooperate with them. Similar submissions were made by Mr Ya., the then deputy head of the Oktyabrskiy VOVD.
According to the Government, the authorities also questioned a number of other officers who had served in the Oktyabrskiy VOVD, including Messrs S., A., Dzh., V., Sh., Soz., T., Kl., M., N., Sor., and Deg., and individuals who had been detained there, in 2000. They all submitted that they had no information concerning the alleged perpetrators.
The authorities found and interviewed, on 4 September and 9 October 2001 and 15 November 2004, Mr K., who had shared a cell with the applicant. He stated that he had seen unknown individuals enter the cell, in which he and the applicant were kept, and cut off the applicant’s ear. In the Government’s submission, when being shown photographs of the presumed perpetrators, the applicant and Mr K. identified different persons.
During the investigation the applicant also underwent a forensic medical examination. It reported the presence of bodily injuries, including the loss of hearing in the left ear, which was classified as serious damage to the health, and other injuries which were classified as moderately serious damage to the health.
According to the Government, the investigation was currently pending and was being supervised by the Prosecutor General’s Office.
3. The applicant’s property
(a) Damage inflicted on the applicant’s property
In the applicant’s submission, upon his return home on 24 May 2000, he saw that his dog had been shot, his house partly burnt and his property, comprising his personal belongings and those of his relatives, furniture, an audio system, a satellite dish, looted. Nothing of value remained in the house. One of the applicant’s two Subaru vehicles and his Oldsmobile car were missing. Later he found out from his neighbours that while he had been in custody, masked men driving one of his cars and an armoured personnel carrier had come to his house on numerous occasions and taken away his property. The men had warned the applicant’s neighbours to stay away from his house stating that they had mined it.
On an unspecified date the applicant drew up a report listing items of property that had been stolen during his detention and indicating that the pecuniary damage sustained amounted to USD 158,120. The report was certified by the administration of the Oktyabrskiy District of Grozny.
Some time later the applicant found one of his Subaru vehicles. The minivan was parked in the street close to the Oktyabrskiy VOVD. The car had been disassembled and burnt.
Late in June 2000 the applicant found his Oldsmobile in the possession of the former head of the Oktyabrskiy VOVD, Mr Dzh. The latter claimed that he had purchased a share of the car, with several other officers of the Oktyabrskiy VOVD whose names were V., Sh. as well as Sulumbek, Khimzan and Ruslan, from federal servicemen for USD 500. The officers stated that they would only return the car to the applicant in exchange for the sum of money equivalent to what they had paid. The applicant refused to pay and lodged complaints about the looting of his property and seizure of his Oldsmobile car with various official bodies. According to him, Mr Dzh. eventually sold the vehicle.
On 11 October 2000 the applicant obtained a certificate confirming that his house and adjacent premises had been burnt and destroyed.
(b) Criminal proceedings
In a letter of 5 January 2001 the Grozny prosecutor’s office ordered the Oktyabrskiy VOVD to transfer to it the material in a criminal case instituted in connection with the theft of the applicant’s Oldsmobile vehicle for supervision by the prosecutor’s office in the course of the investigation. The letter did not indicate the date on which the criminal case had allegedly been opened.
On 15 August 2001 the deputy head of the Oktyabrskiy VOVD forwarded to the Grozny prosecutor’s office the material concerning “the unlawful seizure by personnel of the Oktyabrskiy VOVD of an Oldsmobile car from [the applicant]”.
According to the Government, on 30 August 2001 the Grozny prosecutor’s office instituted criminal proceedings under Article 158 (2) of the Russian Criminal Code (aggravated theft) in connection with the theft by unidentified persons of an Oldsmobile car belonging to the applicant. The case file was assigned the number 15082. By a decision of 5 September 2001 the investigator in charge joined criminal cases nos. 12088 and 15082 under the former number.
In a letter of 30 August 2001 the Grozny prosecutor’s office informed the applicant that criminal proceedings had been brought in connection with his complaint about the theft of his Oldsmobile and that the investigation was underway. The prosecutor’s office did not specify the date of the institution of the criminal proceedings or the number assigned to the criminal case.
In the Government’s submission, on 22 August 2005 the republican prosecutor’s office further instituted criminal proceedings under Article 158 (2) of the Russian Criminal Code (aggravated theft) in connection with the theft by unidentified officers of the Oktyabrskiy VOVD of a Subaru car belonging to the applicant. This case was joined to case no. 12088.
According to the Government, on the same date the republican prosecutor’s office also instituted criminal proceedings under Article 158 (3) of the Russian Criminal Code (aggravated theft) in connection with the theft and destruction by unidentified persons of the applicant’s possessions, including a Subaru minivan. The case file was assigned the number 61857. This case was transferred to the prosecutor’s office of the Oktyabrskiy District of Grozny on 22 September 2005. It is unclear whether any investigative actions were taken in the context of these criminal proceedings.
(c) The applicant’s attempts to institute civil proceedings
(i) Claim for recovery of property
On 7 October 2002 the applicant filed a claim in the Oktyabrskiy District Court of Grozny against Messrs I. Dhz. and Kh. Dhz. and four officers of the Oktyabrskiy VOVD, V., Sh., S. and O. He stated that two vehicles, an Oldsmobile and a Subaru, had been stolen from him during his detention between 5 March and 24 May 2000, that later in the street he had found his Subaru vehicle disassembled, and that he had found his Oldsmobile car at the address of Mr I. Dhz.’s domicile in Urus-Martan. According to the applicant, the latter had stated that he, along with the other co-defendants, had purchased two vehicles on 20 April 2004 for USD 500 from officers of the Oktyabrskiy VOVD and that he had been prepared to return the vehicles to the applicant for the equivalent amount. The applicant thus sought to have his Oldsmobile car returned to him and the amount of USD 1,500 recovered for the damaged Subaru vehicle. He also requested the court to issue an injunction order in respect of the Oldsmobile.
On 14 October 2002 the Oktyabrskiy District Court refused to accept the applicant’s claim for examination, stating that the facts stated by the applicant contained elements of a criminal offence punishable under Article 158 (2) of the Russian Criminal Code and should be investigated in criminal proceedings and that the defendants resided in Urus-Martan. This decision was upheld on appeal by the Supreme Court of the Chechen Republic on 29 October 2002.
By a decision of 21 June 2003 the Urus-Martan Town Court refused to accept the applicant’s claim for examination, stating that the facts submitted by the applicant contained elements of a criminal offence punishable under Article 158 (2) of the Russian Criminal Code and should be investigated in criminal proceedings, and that in the context of such criminal proceedings the applicant could be granted the status of a civil claimant and seek compensation for the damage inflicted on him.
It is unclear whether the applicant appealed against the decision of 21 June 2003.
(ii) Claim for compensation
On 7 October 2002 the applicant filed a claim in the Oktyabrskiy District Court of Grozny against the Russian Ministry of the Interior, the Russian Ministry of Finance and the Federal Treasury. He listed in detail his damaged property and sought compensation for pecuniary damage in the amount of USD 158,120 and compensation for non-pecuniary damage in the amount of USD 1,000,000.
In a decision of 11 October 2002 the Oktyabrskiy District Court refused to accept this claim for examination, stating that it had to be brought to a court at the location of the defendants’ address in Moscow.
On 29 October 2002 the Supreme Court of the Chechen Republic upheld the first-instance decision on appeal.
By a decision of 12 May 2003 the Presnenskiy District Court of Moscow returned the applicant’s claim with reference to the territorial limits on its jurisdiction, stating that the applicant had to bring his action in any district court at the location of the defendants’ address.
On 3 September 2003 the Presnenskiy District Court of Moscow again returned the applicant’s claim invoking the same reasons.
By a decision of 2 September 2003 the Khamovnicheskiy District Court of Moscow left the applicant’s claim without examination and invited the applicant to indicate the defendants’ addresses by 27 November 2003. In a letter of 8 December 2003 the court returned the material to the applicant with reference to his failure to rectify the shortcoming within the indicated time-limit.
On 4 December 2003 the applicant filed a claim against the Russian Ministry of Finance in the Khamovnicheskiy District Court of Moscow. According to the applicant, on 9 January 2004 the court returned his claim with reference to the territorial limits on its jurisdiction and invited the applicant to apply to a district court situated at the location of the defendant’s address.
On 30 August 2004 the applicant filed a claim against the Russian Ministry of the Interior and the Russian Ministry of Finance in the Khamovnicheskiy District Court of Moscow. In his submission, he did not receive any reply from the court.
In a letter of 6 September 2004 the Supreme Court of Russia replied to the applicant’s complaint concerning the district courts’ refusal to accept his claim for examination. The letter stated that the applicant’s claim had to meet the relevant requirements of procedural law and, in particular, had to be filed in a court at the location of the defendant’s address, and namely the Basmanny District Court of Moscow, which corresponded to the location of the Russian Ministry of Finance.
It is unclear whether the applicant further attempted to bring a claim for compensation.
B. Relevant domestic law
The Code of Criminal Procedure of 1960, as in force at the relevant time
Under Articles 218 and 220, complaints about actions of the investigator had to be submitted to the investigator, who was required to forward them to the relevant prosecutor within 24 hours, and complaints against a prosecutor had to be submitted to a higher-ranking prosecutor. On 23 March 1999 the Constitutional Court of Russia found these Articles, to the extent that they prevented judicial review, unconstitutional. Since that date, decisions of an investigator or a prosecutor concerning, inter alia, the conduct of seizures and searches, other investigative actions, extension of preliminary investigation, could be appealed against to a court. The decision also allowed complaints to be brought to a court directly, bypassing the supervising prosecutor.
Article 220.1 stated that a detainee or his (her) counsel or representative could challenge the arrest order, and any subsequent extension order, in court. On 29 September 1994 the Plenary Session of the Supreme Court of Russia ruled that a person apprehended under Article 122 of the Code of Criminal Procedure was also entitled to challenge in court the lawfulness and reasonableness of his (her) apprehension. On 3 May 1995 the Constitutional Court of Russia found Article 220.1 of the Code of Criminal Procedure, to the extent that it provided that it was only individuals actually held in detention who could challenge the lawfulness of their arrest, unconstitutional. By virtue of that decision, from that date onwards a complaint against an arrest order could be brought by a person who was not currently held in detention.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that he had been subjected to inhuman and degrading treatment and torture while in detention, referring to the methods of ill-treatment inflicted on him by the police officers of the Oktyabrskiy VOVD. He also complained that no effective investigation had been conducted into his allegations of ill-treatment.
2. The applicant further submitted that the provisions of Article 5 as a whole, relating to the lawfulness of deprivation of liberty and safeguards against arbitrariness, had been violated in respect of him. Firstly, the applicant claimed that his detention had not fallen within one of the grounds set out in Article 5 § 1 and had not complied with the procedure prescribed by law. Secondly, the applicant submitted that he had not been informed promptly of the reasons for his arrest or charges against him, contrary to Article 5 § 2. He further referred to Article 5 § 3 stating that his detention had not been authorised by a court or a prosecutor and that he had not been released within a reasonable time pending trial. The applicant also complained under Article 5 § 4 that his right to review of the lawfulness of his detention had been breached, since he had had no access to a lawyer, had never been informed of this right and had been under threat of severe ill-treatment by the police officers of the Oktyabrskiy VOVD if he had complained. He also claimed that he had been held incommunicado during the whole period of his detention. Furthermore, no formal charges had been brought against the applicant, and therefore he had been unable to challenge the reasons for his detention. Lastly, the applicant relied on Article 5 § 5 of the Convention, stating that he was unable to obtain compensation for his unlawful detention.
3. The applicant complained that he had been denied the right to a fair trial within a reasonable time, in breach of Article 6 § 1 of the Convention, because having accused him of serious crimes, the authorities had failed to bring his case to court. The applicant further complained that his right to the presumption of innocence, as guaranteed by Article 6 § 2, had been violated by police officers who had ill-treated him on numerous occasions to extract a confession from him. The applicant further referred to Article 6 § 3, stating that he had not been properly informed of the charges against him, had not had an opportunity to prepare his defence and had not had access to a lawyer.
4. The applicant complained that the search conducted in his house on 5 March 2000 had been unlawful and had infringed his right to respect for his private life, home and correspondence as guaranteed by Article 8 of the Convention.
5. The applicant complained under Article 1 of Protocol No. 1 about the damage inflicted on his property.
6. The applicant alleged that there were no effective remedies available in respect of the above violations of his rights, contrary to Article 13 of the Convention.
7. Lastly, in his observations of 12 March 2006 the applicant complained of the Government’s refusal on two occasions to submit the entire copy of the file of the criminal investigation into his allegation of ill-treatment and the theft of his property and requested the Court to find a violation of Articles 34 and 38 § 1 of the Convention should the Government again refuse to submit the requested material.
THE LAW
1. The applicant complained that he had been severely ill-treated while in detention and that no adequate investigation had been carried out into the matter. He further complained that his property had been looted and destroyed by State agents and that he had had no effective remedies in connection with those violations of his rights. The applicant relied on Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1 which, in their relevant parts, read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The Government
The Government argued that this part of the application should be declared inadmissible as the applicant had failed to exhaust the domestic remedies available to him. The Government did not indicate which particular remedies the applicant had not exhausted.
The Government further stated with reference to information provided by the Prosecutor General’s Office that “the investigation had established the fact that bodily injuries had been inflicted on the applicant”, but argued that before all the circumstances of the offence had been established there were no grounds to hold the State responsible for the alleged ill-treatment of the applicant.
They also insisted that the investigation in the present case had not breached the requirements of Article 3 of the Convention.
They stated that the authorities had established that the applicant’s property had been stolen by unknown persons and that an investigation was being carried out in that connection. However, in the Government’s submission, there was no evidence that the applicant’s rights guaranteed by Article 1 of Protocol No. 1 to the Convention had been violated by representatives of the State.
Lastly, the Government argued that the applicant had had effective domestic remedies at his disposal in respect of the alleged violations of his rights, and that the Russian authorities had not prevented him from using those remedies. In particular, the applicant had been granted the status of victim and had received reasoned replies to all his queries in the context of the criminal proceedings.
B. The applicant
As regards the Government’s objection concerning the exhaustion of domestic remedies, the applicant stated that the ongoing investigation into his allegations of ill-treatment and the theft of his property could not be deemed effective, as it had been repeatedly suspended and reopened and had dragged on for several years, had not included a number of essential steps and had produced no tangible results so far.
He further argued that civil remedies had also proved to be ineffective in his case, stating that he had been unable to bring a claim for compensation for his property as the courts had not provided him with accurate information as to which district court had territorial jurisdiction over that claim, and that his attempts to lodge a civil claim for recovery of his property had proved to be futile as the courts had refused to examine this claim in civil proceedings.
The applicant further maintained his complaints under Article 3 in its substantive and procedural aspects and under Article 13 of the Convention. He made no particular submissions in respect of the merits of his complaint under Article 1 of Protocol No. 1.
C. The Court’s assessment
The Court considers at the outset that the question of exhaustion of domestic remedies is so closely linked to the merits of the present complaints 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.
The Court further considers, in the light of the parties’ submissions, that this part of the 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.
2. The applicant complained about various aspects of his detention and the criminal proceedings against him and about an unlawful search of his house. He also alleged that he had no effective remedies in respect of those violations. The applicant relied on Articles 5, 6, 8 and 13 of the Convention, the relevant provisions of which read as follows:
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 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The Government
The Government argued that this part of the application should be declared inadmissible as the applicant had failed to exhaust the domestic remedies available to him. They further submitted that there was no evidence that the applicant had been deprived of his liberty in breach of Article 5 of the Convention. According to them, the applicant’s arrest and placement in custody had been carried out in accordance with the legislation then in force. In particular, the applicant had been apprehended in the context of criminal proceedings instituted against him under Article 222 of the Russian Criminal Code as clear traces of the offence, and namely an explosive, had been found in his house. The prosecutor of Grozny had been informed of the applicant’s apprehension on the same date. The decision to place the applicant in detention had been taken as there were reasons to believe that he might abscond from the investigation.
The Government argued that the applicant had been duly notified of the reasons for his arrest and of a charge against him. In their submission, the applicant’s procedural rights had been explained and the procedural documents shown to him.
The Government also submitted that the applicant had had at his disposal an effective procedure by which he could have challenged his arrest and detention and, in particular, his right to apply to a prosecutor or to a court, as enshrined in the relevant provisions of the Code of Criminal Procedure then in force, had been explained to him. They also insisted that the applicant had a right to compensation for his detention.
The Government further contended that the search of the applicant’s house had not infringed the requirements of Article 8 of the Convention, as it had been conducted in accordance with criminal procedure.
They also insisted that the applicant had had effective remedies in respect of his above complaints, as required by Article 13 of the Convention.
B. The applicant
The applicant disputed the Government’s objection concerning the exhaustion of domestic remedies, referring to the alleged ineffectiveness of the investigation into the events of 5 March to 24 May 2000.
The applicant further maintained his complaints on the merits.
C. The Court’s assessment
The Court does not find it necessary to examine all the arguments advanced by the parties since this part of the application is in any event inadmissible for the following reasons.
The Court reiterates that in accordance with Article 35 § 1 of the Convention, those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system. There is no obligation under Article 35 § 1 of the Convention to have recourse to remedies which are inadequate or ineffective. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/000 et seq., 10 January 2002). Special considerations may apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period may be calculated from the time when the applicant becomes aware, or should have become aware, of those circumstances (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).
In the present case, in so far as the applicant’s complaints under Article 5 are concerned, the Court observes that the applicant was apprehended on 5 March and released on 24 May 2000, when the criminal proceedings against him were discontinued and the relevant decision was served on him.
The Court is of the opinion that in a situation of acknowledged detention the applicant would have been expected to challenge in court his arrest and continued detention, if he had considered that they had been unlawful, so as to comply with the requirement of exhaustion under Article 35 § 1 of the Convention. In this respect, however, the parties submitted conflicting accounts of events. In particular, the applicant claimed, in essence, that he had been held in unacknowledged detention, as he had not received any information, or procedural documents, regarding his arrest and detention, and in addition, had been kept incommunicado during the whole period of his remand in custody and had been unable to seek the judicial review of the lawfulness of his detention. The Government insisted that the applicant had been notified of the reasons for his arrest and detention, that all necessary procedural documents had been served on him and that his procedural rights, including the right to challenge his arrest and detention had been explained to him.
The Court does not consider it necessary to resolve contradictions in the parties’ accounts of events, as even assuming that the applicant had not received any information or documents concerning his arrest and detention during his remand in custody, he was in any event issued upon his release on 24 May 2000 with a document from which it was clear that he had been detained in the context of criminal proceedings against him on suspicion of having committed a criminal offence. He could therefore have reasonably assumed that he had been held in ordinary detention, and that, in principle, he should appeal against the alleged unlawfulness of his arrest and ensuing detention in court, in accordance with the relevant provisions of the Code of Criminal Procedure then in force.
Instead, the applicant on several occasions complained to various prosecutor’s offices about, inter alia, his allegedly unlawful arrest and detention, seeking, in essence, the institution of criminal proceedings against the implicated police officers. The Court is not convinced, however, that applications to a prosecutor’s office would be among the remedies to be exhausted in a situation of acknowledged detention, or that the applicant could reasonably have expected that this would be an effective remedy for his complaints under Article 5 of the Convention, as its prospects of success appear at best questionable, and it is unclear what redress it would be capable of providing to the applicant. The Court considers that, as indicated above, the applicant, even if unable to seek judicial review while in detention, should in usual circumstances have lodged a court complaint against his allegedly unlawful arrest and detention upon his release.
In this connection, the Court further recalls the Government’s admission made in two other cases that the courts in the Chechen Republic remained inoperative at least until November 2000 (see Chitayev and Chitayev v. Russia, no. 59334/00, § 125, 18 January 2007), or even until January 2001 (see Khamidov v. Russia, no. 72118/01, § 151, ECHR 2007‑... (extracts)). It is therefore clear that, even assuming that the applicant had been notified of the reasons for his arrest and detention, and of his procedural right to appeal in court, as the Government claimed, the applicant was deprived in practice of any opportunity to challenge his arrest and detention while in custody or even for a prolonged period after his release. In such circumstances, the applicant should have lodged his application with the Court within the six-month period starting from 24 May 2000, the date of his release (see Hazar and Others, cited above). Given that the present application was lodged on 15 February 2001, which is more than six months after the applicant’s release, the Court thus finds that the applicant’s complaints under Article 5 of the Convention were lodged out of time.
Likewise, in so far as the applicant complained under Article 6 of the Convention about various irregularities in the criminal proceedings against him, the Court observes that the proceedings against the applicant were discontinued on 24 May 2000, and that the applicant was apprised of this decision and of his right to challenge the decision in court on the same date. The applicant, being unable to challenge in court the decision of 24 May 2000, should have lodged his complaints under Article 6 of the Convention within six months from that date, but failed to do so. His relevant complaints were therefore lodged out of time.
Furthermore, as regards the applicant’s complaint about an unlawful search in his house on 5 March 2000, the Court reiterates that the applicant, in principle, should have challenged the authorities’ actions in court (see Chitayev and Chitayev, cited above, §§ 143-144). In the absence of such an opportunity owing to the general disruption in the functioning of the judicial system in the Chechen Republic, the six-month period should, in principle, run from the date of the event complained of, namely 5 March 2000. Even assuming that the applicant was unable to lodge any complaints during the entire period of his detention, he should in any event have lodged his complaint under Article 8 within six months following his release, which he failed to do. Accordingly, the present complaint was lodged out of time.
Lastly, in view of the Court’s above findings regarding Articles 5, 6 and 8 of the Convention, it finds that the applicant’s complaints under Article 13 in conjunction with the aforementioned Articles of the Convention are also time-barred.
Accordingly, it follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join to the merits the Government’s objection concerning the exhaustion of domestic remedies;
Declares admissible, without prejudging the merits, the applicant’s complaints under Article 3 of the Convention, Article 1 of Protocol No. 1 and Article 13, in conjunction with Article 3 of the Convention and Article 1 of Protocol No. 1;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy