ISIGOVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6844/02
by Tsalipat Shamilovna ISIGOVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 12 December 2006 as a Chamber composed of:

MrC.L. Rozakis, President,
MrsN. Vajić,
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 28 December 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 are:

1) Ms Tsalipat Shamilovna Isigova, born in 1954;

2) Ms Aminat Abdurakhmanovna Isigova, born in 1976;

3) Ms Khalisat Umkhayevna Umkhanova, born in 1948;

4) Ms Taisiya Magomedovna Musayeva, born in 1970;

5) Mr Arbi Zelimkhanovich Umkhanov, born in 1997.

The applicants are Russian nationals and residents of the village of Sernovodsk, the Sunzhenskiy District, Chechnya. They are represented before the Court by lawyers from the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Events of 2 July 2001

(a) “Sweeping” operation in Sernovodsk

On 2 July 2001 the federal armed forces carried out a large-scale “sweeping” operation (“zachistka”) in the village of Sernovodsk. According to the Government, the interior troops of the Ministry of the Interior had participated in the operation.

The applicants submitted numerous NGO and press reports about these events as well as statements by other villagers about the general circumstances of the sweeping operation and about the detention of their relatives. In particular, a report issued by the Memorial Human Rights Centre in September 2001 which was entitled “Sweeping Operations in Sernovodsk and Assinovakaya – Punitive Action” stated:

“On 1 July 2001 a police UAZ vehicle was blown up on a land mine in the village of Sernovodsk, five policemen were killed. Soon afterwards military vehicles arrived at the spot ...

Early in the morning on 2 July 2001 detachments of the federal forces entered Sernovodsk and started a “sweeping” operation, the aim of which, according to the military, was detention of rebel fighters who had organised the explosion. Their actions, however, were barbaric, and in any event illogical.

The military broke to the courtyards, forced the inhabitants out of the houses, threw grenades into lofts and cellars, took anything they liked of property, destroyed furniture. ...

The personnel of the village police and GAI [transport police] were disarmed and detained by the servicemen. The military locked the head of the village administration, Vakha Arsamakov, and the head of the administration of the Sunzhenskiy District, Khizir Vatayev, in their rooms and did not allow them to leave for ten hours.

In all the courtyards the military were detaining men aged between 14 and 60 years old. Some of the detainees managed to pay for their freedom at a set scale – those whose documents were in order and who had a local registration were released for 200 roubles; those who were not registered as local residents (mostly those were internally displaced persons who lived in the temporary accommodation centre in the college building and in railway carriages) were released for 500 roubles; those whose documents were not valid or a new photo was lacking in the passport were released for 1000 roubles.

Several hundreds (reportedly about 700) men and two women did not manage to buy their release. Among the detainees there was also a 90-years old G. In the temporary accommodation centre 81 persons were detained and led away.

All the detainees were taken out into the field between the villages of Sernovodsk and Samashki. There all of them, including the 90-year old G., were ordered to lie face down on the ground and to pull their shirts over their heads, so they could not see anything. For any movement they were beaten by a rifle butt on the head.

All valuables such as money, rings and watches were taken from the detainees. Some had their identity documents torn.

They were taken for questioning one by one to a tent erected nearby. The same questions were put to every man: if he was a rebel fighter or a “wahhabit”, if he knew any fighters, if he knew anything about Basayev and Khattab. The interrogations were accompanied by severe beatings, especially for those who had any scars on their bodies, even if these were from childhood years. Several men were tortured with electricity by putting onto their fingers metal rings with wires attached to them. ...

At about 10 p.m. the military started to release the detainees. By 2 a.m. most of the men were released. ... About a hundred persons were taken to the Achkhoy-Martan District Department of the Interior. ... By September 2001 the whereabouts of two persons remained unknown – of Apti Isigov (born in 1973) and Sukushev (no further details known).”

According to the applicants, similar events had taken place in the nearby village of Assinovskaya on 3 July 2001, where about 300 persons had been detained in the same fashion.

(b) Detention of Apti Isigov

The first applicant is the mother of Apti Isigov, born in 1978. The second applicant is the first applicant’s daughter and Apti Isigov’s sister. They live at 34 Pervomayskaya Street in Sernovodsk. At the material time Apti Isigov was planning to enrol in a law faculty in Moscow, and was described by his neighbours and by the head of the village administration as an intelligent, quiet and serious young man, who had no connections with the illegal armed groups.

According to the first applicant, at about 12 noon on 2 July 2001 an armoured personnel carrier (“APC”) pulled up in front of their house. The first applicant noted that the APC hull number was 4025. Several armed men in camouflage uniforms rushed into the courtyard, where the applicant’s son Apti Isigov and his cousin brother Rustam Isigov, who lived in the same house, had already been waiting for them with their passports in hands. The first applicant submitted that the documents had been in order. Nevertheless, the soldiers collected the passports without looking at them, pulled the shirts over the Isigov brothers’ heads and forced them into the APC. In reply to the first applicant’s question about the reasons for apprehension of her son and son-in-law, the servicemen stated that they had an order to detain every man aged between 15 and 50.

The soldiers then searched the house and, in the first applicant’s submissions, took some money and household items.

Rustam Isigov later recalled that the APC into which they had been put stopped in a neighbouring street and they were ordered to get out and climb into a military truck. He noticed a serviceman with five or six passports in his hand nearby. There were several people inside the truck, both detainees and servicemen. One of the servicemen ordered Apti Isigov to climb into the far corner of the truck and to cover himself with a piece of canvas attached to the side. Apti obeyed.

The detainees were then brought to the “temporary filtration point” situated in a field near the village, where there was a basement of an unfinished building. Rustam Isigov and other detainees were ordered to get out of the truck. He submitted that Apti had been ordered to stay in the vehicle but he came out and sat on the ground with the rest of them. He further recalled that Apti was frightened and that he had tried to calm him down, even though the detainees were not allowed to talk. About 15 minutes later a man in camouflage uniforms came, looked through a passport he was holding and ordered Apti Isigov to climb back into the truck.

The first applicant referred to statements of other witnesses, which she had managed to collect, to the effect that Apti Isigov had then been brought to the APC 4025 and spent some time inside. Several witnesses of those detained that day stated that they had seen Apti in the said APC in the afternoon on 2 July 2001, several hours after his detention. One of those witnesses was Khuseyn Chichkanov who was taken to the “temporary filtration point” at about 7.40 p.m. and saw Apti Isigov inside the APC.

(c) Detention of Zelimkhan Umkhanov

The third applicant is the mother of Zelimkhan Umkhanov, born in 1972. The fourth applicant is Zelimkhan Umkhanov’s wife and the fifth applicant is their son. Zelimkhan Umkhanov and his family used to live in Grozny, but after the resumption of hostilities moved to Sernovodsk to his mother, because he thought they would be safer there. Zelimkhan Umkhanov was described by his neighbours and the head of the village administration as an honest man, a good father of the family and a law-abiding citizen.

The third and fourth applicants did not witness Zelimkhan Umkhanov’s detention and referred to eye witness statements submitted by them. According to those statements, at about 4 p.m. on 2 July 2001 Zelimkhan Umkhanov had been detained in the Groznensky Lane. The applicants submitted several statements of the villagers who witnessed Zelimkhan’s detention in the street. Several witnesses, including Khuseyn Chichkanov (see above), stated that they had seen Zelimkhan Umkhanov in APC 4025 in the afternoon on 2 July 2001.

(d) Detention at the temporary filtration point

The first, third and fourth applicants, along with other relatives of those detained during the “sweeping” operation walked to the edge of the field where the men had been detained and remained there until about midnight. The guards did not allow them to approach too close.

According to the applicants, at about 6 p.m. an officer in the rank of major came out and reassured them that all the detainees would be released 30 minutes later. He also told them that he shared their indignation and that he had already talked to his superiors about the events. Later that evening he came out once again and repeated his statements.

At about 8 p.m. the women saw some of the detainees being put into two buses. When the buses drove off, the women tried to block them, but the soldiers started to shoot at the ground in front of the crowd and dispersed them.

The men from Sernovodsk remained detained at the “temporary filtration point” in the field until early hours of 3 July 2001. At about 11 p.m. the military started to release them in small groups, and by 2 a.m. there was no one left in the field. About 40 men were not among the released, and their relatives were eventually told that they had been taken to the temporary office of the interior of the Achkhoy-Martan District (“the Achkhoy-Martan VOVD”). Apti Isigov and Zelimkhan Umkhanov were not released that night, and the applicants have had no news of them ever since.

2. The applicants’ search for their relatives

Early in the morning on 3 July 2001 the fourth applicant went to the military camp in an attempt to receive any information about her husband from the major who had talked to them the night before, but the military were already leaving and she could not talk to anyone.

Later in the morning on 3 July 2001 the first, the third and the fourth applicants, along with other relatives who had not seen their detained family members since the previous day went to the Achkhoy-Martan VOVD. There they were shown a list of about 40 names of persons from Sernovodsk, including Apti Isigov and Zelimkhan Umkhanov, who had been brought to the Achkhoy-Martan VOVD. According to the applicants, during the day the detainees had been gradually released from the Achkhoy-Martan VOVD, but they told the applicants that they had not seen their relatives inside. In the evening of 3 July 2001 the head of the Sernovodsk village administration joined the applicants at the Achkhoy-Martan VOVD. In reply to their inquiries the officials of theAchkhoy-Martan VOVD denied that the two men had ever been brought there, contrary to what they had said in the morning.

On 4 July 2001 the applicants went to the village of Assinovskaya, in which a similar “sweeping” operation was being carried out. They saw the APC with the hull number 4025 there and the military Ural truck with the registration number O 10 03 KSh, the one in which their two relatives had been taken away from Sernovodsk two days before.

On 4 July 2001 the applicants also talked to a man, whose name they do not disclose out of fear for his safety. He had been to the same school as Apti Isigov and knew him quite well. The man stated that on 3 July 2001 he had seen Apti Isigov and Zelimkhan Umkhanov in a military Ural truck in Assinovskaya. The witness said that he had heard someone asking for water from inside the truck saying that “we have not had any water since yesterday”, and when one of the military lifted canvas to give water the witness had seen two men, one of whom he had immediately recognised as Apti Isigov. Both men had traces of beatings on their faces, and Zelimkhan’s hand was hurt, probably broken.

That day the applicants waited near a temporary filtration point in the field near Assinovskaya until 3 a.m. hoping that their relatives would be released together with the detainees from that village, but in vain.

The applicants continued to search for the two missing men, together with their other relatives. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya, to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic, to media and to public figures. In their letters addressed to the authorities the applicants stated the facts of the detention of Apti Isigov and Zelimkhan Umkhanov and asked for assistance and details of the investigation. They were given hardly any substantive information from official bodies about the investigation into the disappearances. On several occasions they and other relatives received copies of letters by which their requests had been forwarded to different prosecutors’ services.

On 4 and on 5 July 2001 the applicants and their relatives applied in person to the prosecutor’s office of the Achkhoy-Martan District (Ачхой-Мартановская районная прокуратура – “the district prosecutor’s office”) and submitted a written complaint. They also applied in person to the Achkhoy-Martan VOVD. They asked for assistance in searching for the two missing men, but the officials denied that they had ever been detained by the district authorities.

On 5 July 2001 the district prosecutor’s office forwarded the applicants’ complaints to the Achkhoy-Martan VOVD. The latter replied to the first applicant in a letter of 10 July 2001 that Apti Isigov had not been detained by the VOVD and that the local office of the interior had no information of his whereabouts.

On 12 July 2001 the third applicant wrote to the head of the administration of the Sunzhenskiy District and asked for assistance in finding Zelimkhan Umkhanov and Apti Isigov. She referred to witness statements and submitted the known details of the two men’s apprehension, including the registration numbers of the military vehicles and call-signs of the military involved.

On 12 July 2001 Rustam Isigov, Apti Isigov’s cousin and a witness to his detention, wrote to the head of the Chechen Department of the Interior. He described in detail the events of 2 July 2001 and requested that his cousin be found.

On 17 July 2001 the district prosecutor’s office informed the third applicant that her son had never been detained by the personnel of the district department of the interior and had not been brought to the Achkhoy-Martan VOVD.

On 13 August 2001 Rustam Isigov wrote a similar letter to the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor’s office”) and asked for a criminal case to be instituted.

On 13 August 2001 the second and fourth applicants wrote to the republican prosecutor’s office that they had not been recognised as victims in the criminal proceedings related to the disappearance of their brother and husband respectively.

On the same date the fourth applicant requested the republican prosecutor’s office to institute criminal proceedings into her husband’s abduction.

On 16 August 2001 the first and third applicants wrote to the Prosecutor General’s Office, complaining that despite their frantic requests the authorities had failed to take measures to investigate the circumstances of their sons’ abduction and to establish the latter’s whereabouts. They also enquired whether a criminal investigation had been commenced, and if so, what authority was carrying out that investigation and what steps had been taken in its context.

On the same date the first and third applicants wrote to the republican prosecutor’s office, restating the facts of their relatives’ detention and complaining about the absence of any information about the investigation. They requested the authorities to notify them of the registration number of the investigation file and the name of the investigator responsible for the case and enquired what information concerning their relatives’ whereabouts had been obtained.

On 23 August 2001 the applicants wrote an open letter to the Russian President, asking for help in finding their relatives.

On 3 September 2001 the head of the Sernovodsk village administration, the village imam and about 30 of its inhabitants signed a letter to a member of the State Duma, the head of the Commission on Reconciliation in Chechnya, in which they asked for assistance in finding Apti Isigov and Zelimkhan Umkhanov.

On 12 September 2001 the fourth applicant wrote a letter to the republican prosecutor’s office. She asked for an update on the investigation into her husband’s abduction and insisted on a written answer.

On 18 September 2001 the applicants addressed a letter to a member of the State Duma elected from the Chechen Republic, asking him to help to find their relatives and complaining about the authorities’ unwillingness to investigate the instances of disappearance in Chechnya.

On 18 September 2001 the applicants wrote to the Federal Security Service (Федеральная служба безопасности), asking for the assistance in establishing their relatives’ whereabouts. On the same date they wrote to the head of the Yabloko political party and a member of the State Duma, asking him to intervene and to help them find their relatives.

On 23 September 2001 the applicants wrote a letter to the republican prosecutor’s office, complaining about the absence of any information about the investigation into their relatives’ disappearance and asked that measures be taken to investigate the abductions.

On 1 October 2001 the applicants wrote to the Minister of Defence. They referred to the known circumstances of their relatives’ detention, including the description of the military vehicles and call-signs, and asked for assistance in finding out about their whereabouts. In case their relatives had died, they asked to recover their bodies for a burial. On the same date the applicants sent a similar letter to the Minister of the Interior.

On 2 October 2001 the applicants again wrote to the Prosecutor General’s Office, asking for news on the investigation.

3. Official investigation into the events of 2 July 2001

On 8 July 2001 the prosecutor’s office of the Achkhoy-Martan District instituted criminal proceedings in connection with numerous complaints of the residents of Sernovodsk about the abuse of power by the federal servicemen during a special operation of 2 July 2001. The case file was assigned the number 27031.

On 10 September 2001 the republican prosecutor’s office informed the third applicant of the decision of 8 July 2001, stating that the disappearance of Apti Isigov and Zelimkhan Umkhanov was being investigated in the context of those proceedings. On 3 October 2001 the republican prosecutor’s office informed the applicants that the proceedings in the criminal case no. 27031 were pending and that they would be informed of any results.

On 19 October 2001 the Ministry of the Interior replied to the applicants that their complaint had been forwarded to the Chechen Department of the Interior and that the search for their relatives would remain under the control of the Ministry.

They further informed the applicants on 22 November 2001 that a number of steps aiming at locating their relatives’ whereabouts had been taken. In particular, the Achkhoy-Martan VOVD opened “searching files” (розыскные дела) and the two men had been included into the federal searching database as well as into the system of identification of unidentified bodies. Unfortunately, those efforts had not brought any results so far. The letter assured the applicants that they would be informed of any results of the search.

On 10 September 2002 the third applicant requested the republican prosecutor’s office to update her on the results of the investigation.

In similar letters of 3 October 2002 the latter replied to the applicants, stating that on 8 July 2001 the prosecutor’s office of the Achkhoy-Martan District had opened criminal case no. 27031 in connection with the allegations of abuse of power, unlawful use of violence and detention, theft and destruction of property during the special operation in Sernovodsk on 2-4 July 2001 and that the investigation in that case was being conducted by the republican prosecutor’s office. The investigation had established that on 2 July 2001 at about 11.20 a.m. and at about 4 p.m. respectively, Apti Isigov and Zelimkhan Umkhanov had been detained and that since then their whereabouts had remained unknown. The investigation had further established that APC no. 4025 belonged to military unit no. 6783, which had participated in the operation. During the questioning, the crew of that APC had stated that they had brought a number of persons to the location of the detachments of the Ministry of Justice which had been carrying out the identity checks of the detainees. The investigating authorities had also questioned a number of the servicemen of the Ministry of Justice who had stated that pursuant to an order of Lieutenant-Colonel Galyamin, the deputy commander of the operation, they had put two “Chechens” into a separate vehicle. On 5 July 2001, also upon his orders, these two men had been delivered to the military base in Khankala (the main Russian military base in Chechnya) to the servicemen of the Ministry of the Interior. However, given that no record concerning the apprehension or detention of the said men had been drawn up, it had been impossible to establish their identities. The letters did not specify whether Lieutenant-Colonel Galyamin had been questioned as a witness.

The letters further stated that the investigating authorities had been unable to identify those responsible or to establish the whereabouts of Apti Isigov and Zelimkhan Umkhanov. The search had also involved verification of unidentified bodies in Chechnya and in the neighbouring regions. The relatives of those missing had been granted the status of victim of a crime. The letters concluded that on 12 June 2002 the investigation had been suspended due to failure to identify the alleged perpetrators.

According to the applicant, between July 2001 and May 2002 at least five investigators of the republican prosecutor’s office had been consecutively appointed to deal with the case. The information concerning personal details of the applicants’ missing relatives, such as height, foot size and photographs, had only been collected from the applicants in the spring of 2002. The applicants also submitted that the investigators had complained to them that they had had no answers or assistance from the military authorities from the Khankala base in establishing the whereabouts of Apti Isigov and Zelimkhan Umkhanov.

On 26 October 2002 the republican prosecutor’s office, in reply to the first applicant’s query, confirmed that her son was being searched for by the law-enforcement bodies and that the investigation in criminal case no. 27031 had been suspended on 12 June 2002, as it had been impossible to identify those responsible.

On 12 November 2002 similar information was sent to Zelimkhan Umkhanov’s father.

By letter of 20 March 2003 the republican prosecutor’s office informed the fourth applicant that the criminal proceedings in case no. 27031 had been resumed on 19 March 2003.

By letter of 18 April 2003 the SRJI, on behalf of the first and third applicants, requested the republican prosecutor’s office to inform them of the developments in the investigation and to recognise them as victims in the case. On 24 July 2003 the SRJI sent a copy of their previous letter to the republican prosecutor’s office, as they had not received any reply to it. On the same date the applicants forwarded a similar letter to the Prosecutor General’s Office.

On 25 August 2003 the republican prosecutor’s office replied to the SRJI’s request lodged on the applicants’ behalf, that criminal case no. 27031 had been forwarded to the Southern Federal Circuit Department of the Prosecutor’ General Office (Управление Генеральной прокуратуры РФ в Южном федеральном округе) for examination.

4. Separate investigation into the disappearance of Apti Isigov and Zelimkhan Umkhanov

According to the Government, “having obtained reliable information that Apti Isigov and Zelimkhan had disappeared during the special operation”, on 14 April 2003 the republican prosecutor’s office had decided that a case in respect of the disappearance of the applicants’ two relatives under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping), should be opened and separated from criminal case no. 27031. The new case had been given the number 34/33/0506-03 and sent for an investigation to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) in Khankala so as to check the possible involvement of the military personnel in the imputed offence.

The applicants submitted a copy of the decision dated 14 April 2003 “on institution of criminal case no. 59114” by a deputy prosecutor of the Chechen Republic. According to the decision, the respective official, “having examined the information on a criminal offence committed on 2 July 2001 during the special operation of the federal forces in Sernovodsk, which had been submitted by an investigator of the republican prosecutor’s office on 14 April 2003”, had established that:

“On 2 July 2001, during a special operation in the village of Sernovodsk of the Sunzhenskiy District of the Chechen Republic, A.A. Isigov and Z.U. Umkhanov were detained and taken away in APC Ch025 by the detachments of the federal forces. However, they were not delivered to the point of identity check situated at the outskirts of Sernovodsk. Their whereabouts remain unknown up to date. The investigation has established that the said APC belonged to [a detachment] of the Ministry of the Interior which during the operation was under command of a commander of military unit no. 6785, Major V.V. Mezentsev. The crew of APC Ch025 was under command of Senior Lieutenant A.G. Kroshin.”

The decision then ordered that a criminal case be opened under Article 126 (2) of the Russian Criminal Code and that criminal proceedings be brought against V.V. Mezntsev and A.G. Kroshina on suspicion of abduction of the applicants’ two relatives.

In a letter of 17 April 2003 the republican prosecutor’s office informed the first and third applicants “in reply to their numerous queries” that on 14 April 2003 criminal proceedings no. 59114 had been instituted under Article 126 (2) in connection with the abduction of their sons on 2 July 2001 by the participants of the special operation carried out by the federal forces in Sernovodsk. The letter stated that the applicants would be notified of any results of the investigation.

On 25 August 2003 the Military Prosecutor’s Office of the United Group Alignment (Военная прокуратура Объединенной группировки войск) replied to the fourth applicant’s request and informed her that the criminal case of which she had enquired was being investigated by the military prosecutor’s office of military unit no. 20102.

By letter of 10 September 2003 the republican prosecutor’s office remitted the SRJI’s query to the Military Prosecutor’s Office of the United Group Alignment. The latter forwarded the query further to the military prosecutor’s office of military unit no. 20102.

On 23 September 2003 the military prosecutor’s office of military unit no. 20102 informed the SRJI that at present they were investigating criminal case no. 34/33/0506-03 instituted under Article 126 (2) of the Russian Criminal Code by the republican prosecutor’s office on 14 April 2003. The military prosecutor’s office stated that they had received the case file in May 2003 and the status of victim of a crime in the said case had been granted to the first, third and fourth applicants. In the latter respect the military prosecutor’s office noted that copies of the decision granting the status of victim may only be served on the victims. They concluded that the relatives of those missing would be notified of the results of the investigation.

On 14 October 2003 the military prosecutor’s office informed the applicants that the preliminary investigation in case no. 34/33/0506-03 instituted on 14 April 2003 had been suspended on 14 October 2003 in accordance with Article 208 (1) § 3 of the Russian Code of Criminal Procedure. The applicants were notified that they were entitled to challenge the decision of 14 October 2003 before a superior prosecutor or in court.

In a letter of 18 November 2003 the military prosecutor’s office of military unit 20102 notified the fourth applicant that on 10 November 2003 the proceedings in criminal case no. 34/33/0506-03 had been resumed.

It appears that at some point the investigation was again suspended, as in a letter of 18 January 2005 the Moscow City Military Prosecutor’s Office (Московская городская военная прокуратура) informed the first and third applicants that on 17 January 2005 the investigation into the abduction of Apti Isigov and Zelimkhan Umkhanov had been re-opened.

On 25 January 2005 the same prosecutor’s office notified the first and third applicants that on the same date they adjourned the investigation under Article 208 (1) § 3. It appears that subsequently the investigation was resumed.

By decision of 21 March 2005 the military prosecutor’s office of military unit no. 20102 discontinued the criminal proceedings in case no. 4/33/0506-03. The decision stated that on 2 July 2001, during a special operation conducted by the detachments of the federal armed forces and the Ministry of the Interior in the village of Sernovodsk, a group of servicemen under command of Major Mezentsev from military unit 6783 had detained Apti Isigov and Zelimkhan Umkhanov and put them in APC Ch025 under command of Senior Lieutenant Kroshin from the same military unit. The two detainees had then been delivered to the point of identity check and given to officers of the Department of Execution of Punishments of the Ministry of Justice. On the same day Apti Isigov and Zelimkhan Umkhanov had been taken away from the point of identity check by unidentified persons in an unknown direction and since then their location had remained unestablished.

The decision went on to say that in the above connection on 14 April 2003 the republican prosecutor’s office had instituted criminal proceedings against Mezentsev, Kroshin and others on suspicion of their involvement in a criminal offence under Article 126 (2) (aggravated kidnapping) of the Russian Criminal Code. According to the decision, a number of witnesses had been questioned during the investigation. In particular, suspect Kroshin had stated that during the special operation of 2 July 2001 in Sernovodsk he had been entrusted with a task of delivering those detained in the course of that operation to a point of identity check at the outskirts of Sernovodsk and that he had not taken those detained to any place other than the point of passport check. He had also stated that he had had no information of the faith of the applicants’ two relatives. Witness Mezentsev and the driver of APC Ch025 had given similar oral evidence. The latter had also stated that no detainees had been left in the vehicle after the termination of the operation.

According to the decision, the investigating authorities had also questioned Colonel Galyamin, who had been one of the senior officers in charge of the operation. He had submitted that detachments of the Ministry of Defence, interior troops of the Ministry of the Interior, special police units of the city of Moscow and those of the Stavropol Region, a mobile detachment of the Ministry of the Interior in the Chechen Republic, officers of the Achkhoy-Martan VOVD and personnel of the Ministry of Justice had taken part in the operation. Those detained during the operation had been delivered to a point of identity check at the outskirts of Sernovodsk. The identity check had been carried out by the personnel of the Ministry of Justice. Colonel Galyamin had also referred to reports of his officers to the effect that during the operation unidentified persons, probably representatives of some power structures, had disembarked from helicopters which had landed in the village. Some of those persons had been wearing masks, whilst the servicemen under his command had been unmasked that day.

The decision further referred to statements of four residents of Sernovodsk, including Apti Isigov’s cousin brother Rustam Isigov, detained on 2 July 2001, all of whom had stated that they had seen the applicants’ two relatives delivered to the point of identity check at the outskirts of Sernovodsk. The first applicant and Rustam Isigov, who had been questioned during the investigation, had stated that they had seen the names of Apti Isigov and Zelimkhan Umkhanov in the list of detainees in the Achkhoy-Martan VOVD on 3 July 2001. The decision also stated that on 16 March 2003 Major Mezentsev had died and on 27 February 2004 Senior Lieutenant Kroshin had been dismissed from service.

It then concluded that Major Mezentsev, Senior Lieutenant Kroshin and servicemen of the federal armed forces participating in the special operation in Sernovodsk on 2 July 2001 had not been involved in the abduction of Apti Isigov and Zelimkhan Umkhanov and that therefore the criminal proceedings against them should be discontinued “in the absence of evidence of a crime”.

In their additional memorandum of 28 March 2005 the Government submitted, with reference to the information provided by the Prosecutor General’s Office, that the criminal proceedings in case no. 34/33/0506-03 had been resumed. They did not specify the date on which the proceedings had been resumed. According to the Government, the investigating authorities had again questioned former serviceman Kroshin, who had made statements similar to his previous ones. The authorities had also examined documentary evidence relating to the operation of 2 July 2001 and undertaken other steps aiming at locating Apti Isigov and Zelimkhan Umkhanov and those responsible for their abduction. The Government did not indicate what those steps had been. They submitted that the investigation had so far been unable to establish the involvement of military personnel in the imputed offence or the whereabouts of those missing. The Military Prosecutor’s Office of the United Group Alignment, acting as a supervising body, had studied the case file and given instructions aiming at establishing the location of the applicants’ relatives and identifying the alleged perpetrators. The investigation and search for them was currently in progress.

Despite specific requests made by the Court on two occasions, the Government did not submit a copy of any of the documents to which they referred. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants of criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and to transmit it to others”.

B. Relevant domestic law

Until 1 July 2002 criminal law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. As of 1 July 2002 the old Code was replaced by the Russian Code of Criminal Procedure.

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

Article 208 (1) § 3 provides that the preliminary investigation shall be suspended in a situation where the location of a suspect is known, but it is impossible to ensure his participation in criminal proceedings.

COMPLAINTS

1. The applicants complained of a violation of Article 2 of the Convention in respect of their two close relatives, Apti Isigov and Zelimkhan Umkhanov. They submitted that the circumstances of their relatives’ detention and the absence of any news from them since 2 July 2001 gave rise to a strong presumption that Apti Isigov and Zelimkhan Umkhanov had been killed by Russian servicemen. They also claimed that the authorities had failed to conduct a timely and thorough investigation into the circumstances of the disappearance of Apti Isigov and Zelimkhan Umkhanov, in violation of their procedural obligations under Article 2 of the Convention.

2. The applicants relied on Article 3 of the Convention, stating that they had strong grounds to believe that their relatives had been subjected to ill-treatment after having been detained and that there had been no adequate investigation into the matter.

3. The applicants also complained that their anguish and distress as a result of their close family members’ disappearance and the lack of an adequate response from the authorities amounted to treatment prohibited by Article 3 of the Convention.

4. The applicants complained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of their two relatives.

5. The applicants submitted that they were deprived of access to a court, contrary to the provisions of Article 6 § 1 of the Convention, since in the absence of any findings from the criminal investigation into the disappearance of Apti Isigov and Zelimkhan Umkhanov, they were unable to bring a civil claim for compensation.

6. The applicants complained that there were no effective remedies in respect of the above violations, in breach of Article 13 of the Convention.

7. In their observations of 5 May 2005 the applicants, without referring to any Convention provisions, also complained about the Government’s refusal to submit a copy of the file of the investigation into their two relatives’ disappearance.

THE LAW

The applicants raised complaints set out above relying on Articles 2, 3, 5, 6 and 13 of the Convention which, in so far as relevant, read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 3

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

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Article 6

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Exhaustion of domestic remedies

1. Submissions by the parties

The Government contended that the application should be declared inadmissible as the applicants had failed to exhaust the domestic remedies available to them. With reference to the Constitution and other domestic legal instruments, the Government argued that it had been open to the applicants to lodge complaints, in courts in various regions of Russia or directly in the Supreme Court of Russia, about the allegedly unlawful detention of their relatives or about the actions or omissions of the investigating or other law-enforcement authorities, but they had not availed themselves of that remedy. The Government enclosed a number of letters from various higher courts in Russia, stating that the applicants had never lodged any such complaints with the courts in question.

The applicants contested the Government’s objection. They claimed that an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. In this connection the applicants relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, and on documents by human rights NGOs and the Council of Europe. The applicants argued that, in any event, they had repeatedly applied to law-enforcement bodies, including various prosecutors, and had attempted to participate in the investigation. This avenue, however, had proved futile, given that the criminal investigation had by now been pending for almost four years but had failed to identify those involved in the illegal detention and disappearance of Apti Isigov and Zelimkhan Umkhanov despite compelling evidence confirming the involvement of federal servicemen.

The applicants also argued that the Government had failed to demonstrate that a court complaint against the actions or omissions of the investigating authorities would have been an effective remedy in their situation. They stated that under domestic law a court, in examining such a complaint, could order the investigating authorities to resume the investigation or take certain investigative measures. In this connection the applicants pointed out that the investigation into their relatives’ abduction had been resumed on several occasions following their complaints to higher prosecutors; however, so far it had produced no results. The applicants therefore argued that court complaints against the investigators would not have changed the situation, and therefore they had been under no obligation to make use of that remedy. The applicants also referred to the Court’s established case-law to the effect that, in any event, the authorities had to carry out the investigation of their own motion once the matter had come to their attention, without leaving it to the initiative of the next-of-kin to take responsibility for the conduct of any investigative procedures.

2. The Court’s assessment

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.

The Court therefore decides to join this objection to the merits.

B. As to the merits of the application

1. The Government

The Government relied on a reply from the Prosecutor General’s Office, stating that that the investigation had not established the involvement of the military personnel in the abduction of Apti Isigov and Zelimkhan Umkhanov. They further argued that there was no convincing evidence that the applicants’ two relatives were dead, given that their whereabouts had not been established and their bodies had not been found. The Government also contended that the investigation was pending and therefore it was premature to claim that it was ineffective.

The Government further contended that there was no evidence that Apti Isigov and Zelimkhan Umkhanov or the applicants had been subjected to treatment prohibited by Article 3 of the Convention. In the Government’s view, the investigation in connection with abuses committed during the special operation of 2 July 2001 in Sernovodsk had been commenced in accordance with procedural law and within the statutory time-limit and therefore had not breached the requirements of Article 3.

As regards Article 5 of the Convention, the Government argued that it could not be excluded that the applicants’ two relatives had been deprived of their liberty by an individual rather than by State bodies. Nevertheless, having regard to particular circumstances of the case, the authorities were investigating the possible involvement of the State bodies in the detention of the applicants’ relatives. The Government also stated that in July 2001 the law-enforcement bodies had formal grounds to check the identities of the residents of Sernovodsk with a view to verify their possible participation in illegal armed formations.

The Government also contended that the applicant had had access to a court, as required by Article 6 § 1 of the Convention, and to effective domestic remedies, as required by Article 13 of the Convention. They submitted that during the period when the events invoked by the applicants had taken place the judicial system in the Chechen Republic had already become operational and that applications of the residents of Sernovodsk concerning those events had been properly examined by the authorities and criminal proceedings had been instituted. The Government insisted that the applicants, as participants of criminal proceedings, had had the right to challenge any actions of the investigating or other law-enforcement authorities before a court. Accordingly, in the Government’s opinion, there were effective domestic remedies in respect of the applicants’ complaints.

2. The applicants

The applicants disagreed with the Government and maintained their complaints. In the applicants’ opinion, it was beyond reasonable doubt that the men who had apprehended and taken away their two relatives on 2 July 2001 had represented federal forces, given the fact that those forces had carried out a special operation in Sernovodsk on the date in question and that this had been confirmed by eyewitness statements, NGO and media reports submitted by the applicants and acknowledged by the Government in their memorial. The applicants accordingly argued that following the arrest, Apti Isigov and Zelimkhan Umkhanov had been under the control of the State. The applicants stressed that their relatives had been apprehended in life-endangering circumstances and contended that the fact that Apti Isigov and Zelimkhan Umkhanov were not listed among those being held in detention centres proved that their lives had been endangered after they had been arrested, since it was widespread practice in Chechnya that people apprehended by State agents were deprived of their lives immediately, or shortly, after being apprehended. The applicants thus argued, relying on Article 2 of the Convention, that the fact that their relatives had remained missing since 12 May 2001 proved that they had been killed. They also claimed that the special operation carried out on the aforementioned date had not been properly planned and supervised by the authorities to ensure that it met the requirements of Article 2 of the Convention.

As regards the procedural aspect of Article 2 of the Convention, the applicants claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of their relatives’ disappearance. The applicants argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for almost four years but had not brought any tangible results so far, having been repeatedly suspended and reopened. Furthermore, the investigating authorities had failed to inform the applicants about the decisions concerning the adjournment and reopening of the investigation or its progress. The applicants’ numerous requests to the authorities throughout the investigation had remained unanswered or only produced standard replies. The applicants had not been granted access to the case file. In support of their argument regarding the inefficiency of the investigation, the applicants also referred to the Government’s refusal to submit a copy of the file in the criminal case concerning their relatives’ disappearance.

The applicants further insisted that there were serious reasons to believe that Apti Isigov and Zelimkhan Umkhanov had been ill-treated after being detained. They referred to applications submitted to the Court by other individuals claiming to be victims of similar violations, and to documents by human rights NGOs and the Council of Europe reporting numerous instances where people detained in Chechnya had been found dead, or had returned from custody, showing signs of torture or ill-treatment. The applicants also maintained that they had endured severe mental suffering falling within the scope of Article 3 of the Convention in view of the State’s indifference to their relatives’ disappearance and its repeated failure to inform them of the progress in the investigation.

The applicants reiterated their argument that it was beyond reasonable doubt that Apti Isigov and Zelimkhan Umkhanov had been detained by the representatives of the federal forces and argued that their relatives’ detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.

Lastly, the applicants relied on Article 13 of the Convention, alleging that in their case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for about four years without any progress, that they had never been granted the access to the case file of the investigation and that all their applications to public bodies had remained unanswered or had only produced standard replies.

3. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the present application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies;

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

Søren NielsenChristos Rozakis
RegistrarPresident

 

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