SHAKHGIRIYEVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27251/03
by Ashat Khamidovna SHAKHGIRIYEVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 28 February 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,

and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 9 July 2003,

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

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

1) Ms Asht Khamidovna Shakhgiriyeva, born in 1960;

2) Ms Zarema Baudinovna Esmurzayeva (Magomadova), born in 1971;

3) Ms Alpatu Magomadova, born in 1922;

4) Ms Zarema Kharonovna Umarova, born in 1968;

5) Ms Ayshat Bibulatovna Gerasiyeva, born in 1985;

6) Ms Aza Ayubovna Abayeva, born in 1972;

7) Ms Svetlana Galaniyevna Dakasheva, born in 1961.

The applicants are Russian nationals and residents of the village of Chechen-Aul, Grozny district, Chechnya. They are represented before the Court by lawyers of the Stichting Russia Justice Initiative (SRJI), an NGO based in the Netherlands with a representative office in Russia.

A. The circumstances of the case

The facts of the case are mostly not in dispute between the parties.[1] The facts, as submitted by them, may be summarised as follows.

1. Detention of eight persons and the searches of 23 October 2002

The applicants submitted that in the early hours of 23 October 2002 eight persons had been detained in their village by a group of servicemen wearing masks and camouflage uniforms and moving around in a Ural military truck, UAZ all-terrain military vehicles and armoured personnel carriers (APC) with obscured number plates. Among the eight persons there were four relatives of the applicants: Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev.

(a) Detention of Magomed Shakhgiriyev

The first applicant is the mother of Magomed Khamidovich Shakhgiriyev, born in 1986. She lives with her family in Chechen-Aul at 37 Lenina Street. In October 2002 Magomed Shakhgiriyev was 16 years old and attended school. He was described by the school director and the head of the village administration as a good student and a well-mannered young man. The first applicant is married and has two other children, who were then aged 6 and 15.

On the night of 22-23 October 2002 the first applicant and her family were at home sleeping. At about 5 a.m. an APC smashed the gates of their house and entered the courtyard. It was followed by a UAZ vehicle. Servicemen in uniforms and masks, armed with automatic weapons surrounded the house and entered. The military did not produce identity papers or any documents to justify their actions and gave no explanations. They did not ask for the inhabitants’ identity documents. The first applicant and her two younger children were locked in one room. The servicemen threatened to shoot if they tried to go outside.

The first applicant’s husband and elder son, Magomed Shakhgiriyev, were ordered to go outside into the courtyard. Magomed Shakhgiriyev, who was wearing a long-sleeved T-shirt, trousers and socks, was escorted by the soldiers into the APC. He was not allowed to put on his boots. The first applicant submitted that her husband had been drunk on that night, and the servicemen seated him on the ground in the courtyard and asked where his machine-gun was. He said that he had no weapons.

The first applicant submitted that a neighbour had tried to find out what had been happening and wanted to enter their courtyard, but the servicemen had hit her and told her to stay away.

During the search the soldiers seized some items from the house, including the goods the first applicant traded in the market and those stored at her house by other traders overnight, because her house was close to the market.

(b) Detention of Ali Magomadov

The second and third applicants are the wife and mother of Ali Baudinovich Magomadov, born in 1966. The applicants’ family live in Chechen-Aul in their own house at 81 Lenina Street. The second applicant has four minor children, who in October 2002 were aged between 2 and 11, from her marriage to Ali Magomadov. Ali Magomadov worked in Grozny at the local branch of Gazprom as a mechanic. The administration of Chechen-Aul described him as a good member of the community who had worked hard to support his large family and who had no connections with the illegal armed groups.

In October 2002 the applicants were carrying out construction work on the house, and some windows of the second floor were not glazed.

On the night of 22-23 October 2002 the second and third applicants, Ali Magomadov and the children were at home sleeping. At approximately 4.30 a.m. a group of about 15 masked men in camouflage forcibly entered the house. They arrived in a Ural truck, whose number plates the applicants could not distinguish in the darkness. The servicemen were armed with machine-guns and spoke Russian, largely using swearwords. They were hostile and aggressive. The military did not produce identity papers or any documents to justify their actions and gave no explanations.

The second applicant submitted that five or six men had entered the house through the windows of the second floor and had spread out around the rooms. In addition, about ten servicemen had kept guard in the courtyard. Once in the house, the servicemen ordered the second applicant to turn on the light, but she replied that the village was without electricity on that night. They ordered her to go and get matches which she did. The servicemen searched the room where the applicant and her daughter had been sleeping and asked the applicant if there were any men in the house. The applicant replied that her husband was the only man in the house, and the soldiers told her to bring him. The second applicant went into the room where her husband and her sons had been sleeping and told Ali Magomadov that there were armed men looking for him. He put on a shirt and trousers and came out of the room.

The soldiers put him against the wall and asked him his name. He gave his full name and the soldiers immediately led him away. They gave no explanations and asked no further questions. One of the servicemen asked for Magomadov’s passport and the second applicant went to fetch it from his jacket. When she returned to the corridor the soldiers had already taken her husband away. Other servicemen took his passport.

The second applicant realised that her husband had been taken away barefoot and tried to follow them out of the house, but the soldiers shouted at her to close the door and remain inside.

The second applicant saw her husband being put into the Ural truck, which then left in the direction of Grozny.

The third applicant submitted that the armed men had entered the room where she and her 11-year-old granddaughter had been sleeping and put a machine-gun to the head of her granddaughter, who had hid under the blanket out of fear. The third applicant shouted “Don’t shoot, it’s a child!” and the armed man put the gun away. She was shocked by the night raid, she could not understand what was happening and then through the window she saw her son being led away by two men armed with machine-guns.

(c) Detention of Ismail Umarov

The fourth applicant is the sister of Ismail Kharonovich Umarov, born in 1975. The Umarov family live in their own house at 9 Sadovaya Street. Their house has two separate entrances. One part of the house is occupied by the fourth applicant, her two children, who in October 2002 were aged 9 and 7, and her mother. The fourth applicant is a widow; her husband died in 1995. The other part of the house is occupied by the family of the fourth applicant’s brother Ismail Umarov, his wife and two children, aged 2 and 3 at that time. In October 2002 Ismail Umarov’s wife was pregnant with a third baby who was born in February 2003.

At about 4 a.m. on 23 October 2002 a group of masked men in camouflage uniforms with black arm bands forcibly entered the courtyard of the Umarovs’ house. The servicemen were armed with machine-guns and spoke Russian. They were hostile and aggressive, shouting and shooting in the air. The military did not produce identity papers or any documents to justify their actions and gave no explanations.

They arrived in two UAZ vehicles, climbed over the fence, opened the gates from inside and entered the courtyard. The fourth applicant’s mother woke up and alerted the fourth applicant. Together they dressed up and went out into the courtyard where there were several servicemen standing by the door which led to Ismail Umarov’s part of the house. Upon the soldiers’ orders, the fourth applicant’s mother knocked on the door and called her son saying that there were soldiers looking for him. When he opened the door, the servicemen dragged him out and put him into the UAZ vehicle. They did not ask for his identity documents and did not allow him to put on his shoes – he was taken away in a T-shirt and training trousers, barefoot. The servicemen then searched the house.

The fourth applicant tried to intervene but the soldiers told her that her brother would be taken to a “filtration point”.

(d) Detention of Umalat Abayev

The fifth and sixth applicants are the wife and sister of Umalat Ayubovich Abayev, born in 1978. Shortly before the events of October 2002 the head of the village administration recommended Umalat Abayev for work as a safety guard and described him as a good man who had no connection with the illegal or extremist groups and had not otherwise discredited himself. Similar recommendation letters were issued to him by the imam of the village mosque in Chechen-Aul and the local policeman.

The Abayev family live in their own house at 29 Partizanskaya Street. In the early hours of 23 October 2002 a group of servicemen arrived at their house in an APC and two UAZ vehicles. They were armed and wearing camouflage uniforms and masks. They forcibly entered the Abayev family house and ordered all the men to come out. The women said that there was only one man in the house, and the soldiers went into the room where Umalat Abayev was sleeping. They raised him from his bed and took him out into the street; he was not permitted to get dressed. When the relatives asked where he was being taken, the servicemen said that they could put questions to the Argun military commander’s office and that Abayev would be “checked through a computer” and then released.

Then the servicemen searched the house, without producing any documents to justify their actions. According to the applicants, they “turned the whole house upside down”, checked the documents and took away some valuables.

(e) Detention of four other men on 23 October 2002

The applicants submitted that four other men had been detained in Chechen-Aul on the same night: S. Yu., R. Z., M. Zh. and A. Zh. (the latter two are spelled in official documents as M. Dzh. and A. Dzh.). Two days later, on 25 October 2002, son and father Zh. were released. According to the applicants, they said that they had been detained in a cellar but could give no other details of their detention because they had been taken around blindfolded.

2. Search for the men detained on 23 October 2002

Immediately after the detention of their family members the applicants and other relatives of the detained persons started to look for them. On 23 October 2002 the first applicant wrote a letter to the Chechnya Prosecutor and to the Head of Administration of Chechnya about the detention of her son and seven other men by a group of armed men on an APC. She also complained about the taking of property and money from her house.

On the applicants’ behalf letters enquiring about the fate of their relatives were forwarded by a member of the State Duma, Mr Igrunov, and by the NGO “Civic Assistance” to the Chechnya Prosecutor’s Office and to the Prosecutor General’s Office. On 18 November 2002 the Chechnya Prosecutor’s Office informed Civic Assistance that on 26 January 2002 (sic) the Grozny District Prosecutor’s Office had opened a criminal investigation into the kidnapping of Abayev and others under Article 126 of the Criminal Code, and that at present the investigation had been adjourned for failure to identify the culprits.

The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 23 October 2002, at about 4 a.m. unidentified persons armed with automatic weapons and wearing camouflaged uniforms had kidnapped in Chechen-Aul and taken in an unknown direction M. Shakhgiriyev, A. Magomadov, I. Umarov, U. Abayev, R.Z., M.Zh. [M.Dzh.], A.Zh [A.Dzh] and S.Yu. The latter person had sustained a firearm wound. M.Zh and A.Zh. had been released later.

3. Disappearance of three persons on 3 November 2002

On 3 November 2002 three men from Chechen-Aul went looking for their missing co-villagers. They were Aslan Israilov, Khasin Yunusov and Adash A.

The sixth applicant is the wife of Aslan Ramzanovich Israilov, born in 1972 (she is also the sister of Umalat Abayev, detained on 23 October 2002). Aslan Israilov was a graduate of the Teachers’ Institute and a teacher in a local sports school. He had three minor children, who in 2002 were aged between 1 and 10, from his marriage to the sixth applicant.

The seventh applicant is the sister of Khasin Gelaniyevich Yunusov, born in 1971. Khasin Yunusov was a Sub-Lieutenant of the police force and served in the Grozny district department of the interior (ROVD).

No complaint was brought in relation to the disappearance of Adash A.

The applicants submitted that Khasin Yunusov as a policeman obtained information that the detained men could be held in Khankala, the main Russian military base in Chechnya. On 3 November 2002 the three men left in the morning in Khasin Yunusov’s Gazel utility vehicle and went to Khankala in order to meet a man named “Ilyas” who had allegedly worked for the Main Military Intelligence Department of the Army (GRU) and who could help them to find the persons detained on 23 October 2002. Later on the same day they met the head of the village administration of Chechen-Aul, Saypudin Ts., in a café by the roadside. Ts. later recounted to the applicants that the three men had told him that they had not found “Ilyas” in Khankala and had headed to his house in the village of Tolstoy-Yurt, but that they would return to Khankala by 3 p.m. on the same day because they had arranged for a meeting there. The seventh applicant later talked to the women who had served in the café and who confirmed that the three men had eaten there, that they said that they were in a hurry and that they were going to Khankala.

The applicants submitted that on 3 November 2002 a military helicopter had been downed above Khankala. The applicants submitted a number of press and human rights groups’ reports, according to which the military, in response to the attack, had detained a lot of people on the road that day, had blown up three five-storey buildings from where the rocket could have been fired and had shelled the village of Prigorodnoye near the airport with mine-launchers.

Later the applicants collected testimonies from unnamed local residents to the effect that their three relatives had been detained on 3 November 2002 at a roadblock in Minutka Square in Grozny. According to these statements, a group of servicemen had arrived at the roadblock in an APC and a GAZ vehicle and had taken the three men away. Khasin Yunusov’s Gazel vehicle was later found burnt.

The Government in their observations did not challenge the principal facts as presented by the applicants. They stated that it had been established that on 3 November 2002 Khasin Yunusov had left home in his own Gazel vehicle in an unknown direction, accompanied by his friends Aslan Israilov and Adash A. They had never returned. The Government also stated that the applicants had never informed the State bodies of the fact that their relatives had been detained in Minutka Square.

4. Discovery of five bodies on 8 November 2002 and the investigation

According to the applicants, on 8 November 2002 five male bodies were discovered by the local residents in the forest near the village of Vinogradnoye, Grozny district, near the road to Tolstoy-Yurt. The bodies were delivered to the mosque of Tolstoy-Yurt. On 9 November 2002 several relatives of the persons missing since 23 October 2002 travelled there and identified them as the five men who had been detained in Chechen-Aul: Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev and R. Z. The body of the sixth person detained on that night, S. Yu., has never been found and he is still considered missing. On the same day the five bodies were brought to Chechen-Aul and buried.

According to the Government, the five bodies had been found in the forest in the vicinity of Darbanbakhi village, Gudermes district. They also stated that, according to the information from the prosecutor’s office, the relatives had identified only four bodies – those of the applicants’ relatives – while the relatives of R.Z. had not identified the fifth body as that of R.Z.

Among the documents submitted by the Government (see below) the 27 September 2003 decision of the Grozny District Prosecutor’s Office to adjourn the investigation contained the following description:

“On 8 November 2002 at about 10 a.m. in the forest, about 10 kilometres away from the village of Darbanmakhi, Gudermes district, towards the village of Vinogradnoye, Grozny district, two kilometres to the south from the Darbanmakhi – Vinogradnoye road, there were discovered five male bodies with heads tied with fragments of cloth, tied hands and firearm wounds. They were later identified by their relatives as having been kidnapped in Chechen-Aul on 23 October 2002: I.Kh. Umarov, A.B. Magomadov, M.Kh. Shakgiriyev, U.A. Abayev and [R.Z.].”

It appears that the applicants did not see the bodies before they were buried, nor did they submit them for an autopsy. It also appears that they did not make any photographs before the burial. However, it appears that the bodies were photographed in Tolstoy-Yurt and that a local medical worker in Chechen-Aul inspected the bodies before the burial, even though no detailed report was drawn up.

Ali Magomadov’s sister Khazhar I. submitted an account of what she had seen when she had been called to identify her brother’s body:

“My brother was killed by unimaginable tortures. His whole body was covered with strange pink spots, the upper part of the body was darker in colour as if the blood had rushed to it. Maybe he was tortured by electricity or hanged upside down. His hands were tied together behind his back, the neck was also covered with something. Maybe there was a mark there. The feet up to the ankles and hands were as if they had been put into hot water, skin peeled off like after a blister. He was wearing the same clothes and barefoot. The nose was broken, the face was covered with blood mixed with dirt. Everything was too unexpected, the signs of torture were too horrible, we were all in a shock...”

The first applicant submitted that the bodies of the five men had borne numerous firearm wounds, bones had been broken, skin on the fingers had been chipping off.

On 22 November 2002 the Chechen-Aul out-patient medical service issued a medical certificate of death in respect of Ali Magomadov. The date and place of death were recorded as 9 November 2002, Gudermes district. The certificate indicated that a doctor had examined the body and concluded that death had occurred as a result of murder through strangulation and numerous blows.

On 10 December 2002 the same medical service issued a certificate of death in respect of Magomed Shakhgiriyev. The date and place of death were recorded as 9 November 2002, Vinogradnoye village. The cause of death was recorded as a firearm wound to the head – an act of murder.

On 10 December 2002 the Chechnya Prosecutor’s Office forwarded the first applicant’s letter to the Grozny District Prosecutor’s Office and informed her that the investigation into the “kidnapping” of her son was under way.

On 11 December 2002 the Grozny district civil registration office issued a death certificate for Ali Magomadov. The date and place of death were recorded as 9 November 2002, Gudermes.

On 15 December 2002 the first applicant was granted victim status in the criminal investigation no. 56166 opened into the kidnapping and then murder of her son and other men.

On 17 December 2002 Mr Igrunov, a member of the State Duma, again wrote to the Prosecutor General’s Office and asked him to ensure that additional investigative steps were taken in order to find out who was responsible for the kidnapping and murder of Umalat Abayev and other villagers. He recalled that the arrest and detention had been carried out by a military group and that it should be relatively easy to establish who had been responsible for the mission in question.

On 15 January 2003 the Grozny District Prosecutor’s Office issued to the second applicant a note to confirm that the death of her husband on 23 October 2002 was being investigated by that office. The certificate was issued for submission to Ali Magomadov’s employer, the Grozny branch of Gazprom.

On 17 January 2003 the Grozny district civil registration office issued a death certificate for Magomed Shakhgiriyev. The date and place of death were recorded as 9 November 2002, Vinogradnoye, Grozny district.

On 23 January 2003 the Chechnya Prosecutor’s Office replied to Mr Igrunov’s enquiry about the investigation into the abduction and murder of Umalat Abayev. The letter stated that on 23 October 2002 the Grozny District Prosecutor’s Office had opened criminal investigation file no. 56166 under Article 126 part 2 of the Criminal Code (kidnapping). After the discovery of Abayev’s body on 8 November 2002, the Gudermes District Prosecutor’s Office opened criminal investigation no. 57103 under Article 105 part 2 (murder in aggravating circumstances). On 10 January 2003 the two proceedings were joined under no. 56166 at the Grozny District Prosecutor’s Office. The letter further stated that the Chechnya Prosecutor’s Office had examined the investigation file. In order to solve the crime, requests for information had been forwarded to various military and security services in Chechnya and in the Northern Caucasus. The investigation obtained information that Abayev had been a follower and a supporter of the “Wahhabi” movement, and had actively promoted its teachings. The letter also explained that their previous letter of 18 November 2002, which had referred to the adjourned criminal investigation into Abayev’s abduction, had in fact concerned his detention on 24 December 2001 during a special operation. After a check Mr Abayev and others had returned home. On 26 January 2002 criminal investigation file no. 56014 had been opened into his kidnapping but had later been adjourned for failure to identify the culprits.

On 15 February 2003 Mr Igrunov forwarded his correspondence with the prosecutors’ service to Umalat Abayev’s family.

On 11 April 2003 the relatives of the five men from Chechen-Aul wrote to the Grozny District Prosecutor’s Office and the Chechnya Prosecutor’s Office. They asked for details of the criminal investigation and requested to be granted victim status in the proceedings.

On 16 April 2003 the Grozny district civil registration office issued a death certificate for Umalat Abayev. The date and place of death were recorded as 23 October 2002, Chechen-Aul.

On 22 April 2003 the applicants wrote to the Chechnya Prosecutor and the Grozny District Prosecutor asking to be informed of the progress in the investigation concerning the abduction and murder of six men from Chechen-Aul. They noted that they were not aware of the criminal investigation file number or whether there had been any progress in the proceedings. They also asked to be granted victim status in the proceedings. As no reply was received to that letter, they repeated it in May or June 2003.

On 9 July 2003 the SRJI, acting upon the applicants’ behalf, asked the Chechnya Prosecutor and the Grozny District Prosecutor for an update on the criminal investigation into the abduction and murder of five men from Chechen-Aul and asked them to grant the relatives victim status.

On 9 July 2003 the Chechnya Prosecutor’s Office forwarded the “collective letter of the villagers of Chechen-Aul” to the Grozny District Prosecutor’s Office.

On 19 August 2003 the Chechnya Prosecutor’s Office replied to the SRJI that on 23 October 2002 the Grozny District Prosecutor’s Office had opened criminal investigation file no. 56166 into the kidnapping and murder of five residents of Chechen-Aul. The investigation was ongoing and all questions were to be addressed to the district prosecutor.

On 27 September 2003 the investigator of the Grozny District Prosecutor’s Office ordered the adjournment of investigation no. 56166 for failure to identify the culprits. According to the relevant document, the investigation had been adjourned on 23 January 2003, reopened on 15 August 2003 and adjourned on 27 September 2003. In the same document the Grozny ROVD was instructed to continue to take steps to identify the culprits.

On 14 October 2005 the SRJI, acting on the applicants’ behalf, asked the Grozny District Prosecutor’s Office to inform them about the progress made and to allow the relatives access to criminal investigation file no. 56166.

5. Search for Aslan Israilov and Khasin Yunusov and the discovery of the bodies on 18 April 2003

The sixth and seventh applicants started to look for their missing relatives, Aslan Israilov and Khasin Yunusov, immediately after their disappearance on 3 November 2002.

On an unspecified date the head of the village administration of Chechen-Aul, the village imam and the chairman of the committee of elders signed requests to the authorities asking for the release of the three men who had been illegally detained on 3 November 2002 on Minutka Square in Grozny.

The seventh applicant submitted that on 6 November 2002 she and the head of village administration Ts. had gone to the head of the Grozny ROVD and asked him if he was aware that one of his servicemen, Khasin Yunusov, had disappeared after a trip to Khankala. The seventh applicant submitted that the head of the department had assured her that he had been aware of that and that a lot of people had been detained after the downing of the helicopter. He allegedly told her that the Federal Security Service (FSB) had been checking the detainees and that they would all be released after 15 November 2002.

After 15 November 2002 the applicants continued to look for their relatives. The seventh applicant submitted that she had talked to a man who had allegedly worked at the Khankala military base and who had initially agreed to help them find out the fate of their relatives. He assured her that he had seen the name of her husband and two other men in the lists of detainees. However, one month later the same man allegedly told her that the lists had been destroyed and that he could not help them.

On 11 December 2002 the seventh applicant wrote a formal complaint to the Chechnya Government about the disappearance of her brother on 3 November 2002. She stressed that her brother had been a member of the police force and that he had allegedly been detained at the Khankala military base.

On 15 December 2002 the Grozny Town Prosecutor’s Office opened a criminal investigation under Article 105 part 2 of the Criminal Code. The decision to open the criminal investigation stated that on 3 November 2002 Khasin Yunusov had left home in a Gazel vehicle and disappeared. The facts of the case, including Yunusov’s membership in the police force, gave rise to a suspicion that he had been killed. The disappearance of Yunusov was confirmed by his family members and the report of the head of the Grozny ROVD of 22 November 2002.

On 18 December 2002 the Chechnya Government wrote to the seventh applicant and assured her that upon her complaints all steps were being taken by the prosecutor’s office and the Grozny ROVD.

On 16 January 2003 the Chechnya Prosecutor’s Office informed the seventh applicant that on 15 December 2002 the Grozny Town Prosecutor’s Office had opened criminal investigation file no. 56192 into the disappearance of Khasin Yunusov, Aslan Israilov and Adash A. The investigation established that on 3 November 2002 at about 3 p.m. the three men had been seen in café Zara on the road near Tolstoy-Yurt. They had been heading to Grozny in order to find missing fellow villagers. After that they had not been seen again. The investigation into the circumstances of the disappearance was continuing.

On 31 March 2003 Khasin Yunusov’s sister was granted victim status in the proceedings.

On 18 April 2003 the SRJI wrote to the Grozny District Prosecutor’s Office on behalf of the sixth and seventh applicants and asked it for an update in criminal case no. 56192.

According to the applicants, on 18 April 2003 three male bodies were discovered in Khankala, 400 metres away from the fence of the military base. The Government stated that the bodies had been found near the village of Berdykel in the Grozny district. The decision of the Grozny District Prosecutor’s Office of 10 May 2003 to transfer the investigation contained the following description:

“On 18 April 2002 at about 5 p.m. in the village of Khankala, at the bottom of a quarry, about 400 metres from the place of location of the VV [Internal Troops] of the Ministry of the Interior and about one kilometre from the location of the VOGO and P [Temporary Operative Alignment of Bodies and Services] of the Ministry of the Interior, three unidentified male bodies with signs of violent death were discovered.”

The bodies were inspected by a policeman of the Grozny ROVD and by a military prosecutor who authorised the Grozny ROVD to take the bodies away for identification and burial. The bodies were brought to the mosque of the village of Berket-Yurt and the local policeman informed the policeman in Chechen-Aul and the relatives of the missing persons. On 24 April 2003 the policeman from Chechen-Aul and Khasin Yunusov’s brother identified his body by the clothes he had been wearing. The relatives of Aslan Israilov and Adash A. also identified them by their clothes. It appears that the bodies had been in an advanced stage of decomposition. No documents were found on them.

On the same day the three bodies were brought to Chechen-Aul and buried. The applicants did not have a chance to look at them. It appears that upon the discovery of the bodies a report was drawn up, and photographs were made of them and of the objects collected from them, but the applicants do not have copies of those reports. The applicants did not submit the bodies for an autopsy or a medical examination before burial. They referred to unnamed witness statements which indicated that the three bodies had numerous firearm wounds to the head and chest, that there were pieces of rope and that the right legs of the three bodies had been missing as if they had been tied together and blown up by an explosive charge.

The seventh applicant submitted that one month later the head of the administration of Chechen-Aul, Ts., and the local policeman who had first identified the bodies had been killed.

On 18 April 2003 the Grozny District Prosecutor’s Office opened criminal investigation file no. 42076 upon the discovery of three unidentified male bodies with signs of violent death. On 10 May 2003 this investigation was joined to criminal investigation no. 56192, following the identification of the corpses.

On 22 May 2003 the military prosecutor of military unit no. 20102 based in Khankala replied to the family of Khasin Yunusov that there were no reasons to suspect the involvement of military servicemen in the abduction and killing of their relative and two other men. The criminal investigation into the abduction and murder was pending in the Grozny District Prosecutor’s Office.

On 6 June 2003 an investigator of the Grozny District Prosecutor’s Office adjourned the investigation of criminal case no. 56192 for failure to identify the persons responsible for the crime.

On 14 October 2005 the SRJI, acting on the applicants’ behalf, asked the Grozny District Prosecutor’s Office and the Chechnya Prosecutor’s Office to inform them, and/or the relatives of the missing and killed men from Chechen-Aul, about the status of the investigation. They also asked the prosecutor’s office to allow the relatives access to the case file. In their letter the SRJI reminded the prosecutor’s office of their obligations under the Code of Criminal Procedure and the Convention to inform the victims of progress in the investigation.

The applicants submitted they had not been informed of the progression of the proceedings and that they had no effective access to the investigation file.

6. Information submitted by the Government about the investigation

In reply to the Court’s requests, the Government submitted the following information concerning the progress of both criminal investigations.

(a) Investigation into the kidnappings of 23 October 2002

As regards the investigation into the kidnapping of the applicants’ four relatives on 23 October 2002, the Government stated that on the same day the Grozny District Prosecutor’s Office had opened investigation file no. 56166 upon an application by Umalat Abayev’s mother and by the head of the Chechen-Aul administration. The investigation had initially been opened to investigate the charges of kidnapping committed by a group, but was later altered to include the charges of kidnapping of several persons, committed with use of violence, destruction of property, robbery and armed robbery.

As indicated in the documents submitted by the Government, the same investigation also dealt with the kidnapping and murder on 27 October 2002 in Chechen-Aul of Ismail G., born in 1977, and Isa G., born in 1966, committed by “unidentified armed persons in camouflaged uniforms”.

Immediately after the finding of five bodies, on 8 November 2002 the Gudermes District Prosecutor’s Office opened criminal investigation file no. 57103 in respect of the aggravated murder of several persons. According to the Government, the investigators had examined the site where the bodies had been discovered, carried out forensic examinations, ballistic expert reports and questioned the person who had found the bodies and the head of the village administration of Darbanbakhi. The Government submitted that the forensic reports suggested that the deaths could have been caused by firearms.

On 10 January 2003 the two criminal cases were joined under number 56166.

The investigators questioned a number of applicants and other relatives of the victims. Umalat Abayev’s mother was questioned on 23 October 2002 and on 11 January 2006. On 25 December 2002 she was granted the status of victim in the proceedings. She stated that on 23 October 2002 her son had been kidnapped by unknown persons and that his body had later been discovered in Gudermes district.

According to the Government, on 23 October 2002 the investigators questioned a son of M.Zh. who stated that on that night his father had been taken away by unknown armed men. M.Zh.’s wife gave similar statements on 23 October 2002. On 17 September 2003 she was granted victim status. On an unspecified date M.Zh. was also questioned and granted victim status. He stated that on that date he had been blindfolded and placed in a car, together with some other fellow villagers. Two days later he had been released and had returned home. Later he had learnt that other persons who had been kidnapped had been found dead. On 11 January 2006 M.Zh. brought a civil claim, in the same proceedings, relating to the theft of his property.

A.Zh. was questioned on 9 November 2002 and granted victim status. He was again questioned on 1 December 2005. He stated that in the evening of 23 October 2002 he had been coming home and had been stopped in the street by unknown armed persons. He had been taken to an unknown location where he had stayed for three days. He had not been ill-treated.

On 23 October 2002 the investigators questioned Ismail Umarov’s mother and wife and granted victim status to the latter. She was again questioned on 12 January 2006. The fourth applicant, Ismail Umarov’s sister, was questioned on 19 December 2002.

Also on 23 October 2002 the investigators questioned Ali Magomadov’s wife, who was granted victim status on 25 December 2002. She explained that during the night she had heard noise in the courtyard and saw about ten armed men wearing masks. They asked if there were any men in the house and led her husband away. Later his body was discovered.

The first applicant was questioned and granted victim status on 25 December 2002. She gave similar statements relating to the kidnapping of her son, Magomed Shakhgiriyev, and the subsequent finding of his body in Gudermes district.

According to the Government, the investigators also questioned relatives of S.Yu. who had also been kidnapped on 23 October 2002 and whose whereabouts had not been established. His mother had been granted victim status on 25 December 2002. Furthermore, the Government stated that the identity and place of residence of the eighth person kidnapped on that day, R.Z., could not be established. No one had applied to the law-enforcement authorities in relation to his kidnapping and his relatives could not be identified.

The Government stated that six other persons were also questioned by the investigators, without specifying the dates or relevance of their testimony. They could not give any additional information about the perpetrators of the crimes.

From the documents submitted by the Government, it follows that in 2006, within the same set of criminal proceedings, the investigators questioned and granted victim status to other persons whose property had been damaged on 23 October 2002. On 10 January 2006 the Grozny District Prosecutor’s Office granted victim status and the status of civil claimant to Zhabrail Kh. on the following grounds:

“It had been established that on 23 October 2002 at about 3 a.m. in the village of Chechen-Aul of the Grozny district, in the course of a special operation being carried out in the said village, the servicemen had fired at the house situated at 31 Ordzhionikidze Street, the property of Zhabrail Kh. As a result of opening fire, a stallion belonging to Zhabrail Kh. had been killed in the barn.”

On 11 January 2006 the same investigating authority granted victim status and the status of civil claimant to Gulnara E. on the following grounds:

“On 23 October 2002 at about 4 a.m. unknown persons wearing camouflaged uniforms and masks, armed with automatic weapons, committed arson in a room in the house and exploded a hand-grenade in another room of the house situated at 83 Lenina Street, by which pecuniary damage in the amount of 45 000 roubles and non-pecuniary damage had been caused to Gulnara T.”

(b) Investigation into the disappearance of three men on 3 November 2002

The Government submitted that on 15 December 2002 criminal investigation file no. 56192 had been opened by the Grozny District Prosecutor’s Office. The murder investigation under Article 105 of the Criminal Code had been opened on the basis of a complaint by Khasin Yunusov’s sister concerning the disappearance of her brother.

The investigation established that on 3 November 2002 Khasin Yunusov and his two friends, Aslan Israilov and Adash A. had left Chechen-Aul in Yunusov’s Gazel vehicle. On 18 April 2003 three male bodies with signs of violent death had been found near the village of Berdykel of the Grozny district. On the same day the Grozny District Prosecutor’s Office opened criminal investigation file no. 42076 in respect of aggravated murder (part two of Article 105 of the Criminal Code). Later the three bodies had been identified as those missing from 3 November 2002.

On 10 May 2003 the two criminal cases were joined under number 56192.

According to the Government, at some point the investigators questioned Khasin Yunusov’s brother, who confirmed that his brother had been missing since 3 November 2002. He also stated that three months after that the frame of his brother’s vehicle had been found in the forest. On 5 April 2003 the witness had learnt of the discovery of three unidentified bodies. He and the brother of Aslan Israilov had identified the bodies of their relatives, as well as the body of Adash A. All three bodies had parts of their legs missing below the knee.

According to the Government, other relatives of the three missing men were questioned and granted victim status on unspecified dates. They gave similar statements and testified that they had no information about their relatives’ deaths. Khasin Yunusov’s sister was granted victim status on 31 March 2003. The Government stated that the sixth and seventh applicants, sisters of Umalat Abayev and Khasin Yunusov, respectively, had not been granted victim status in the proceedings because they had never applied to the law-enforcement bodies with such requests. On 25 December 2002 Umalat Abayev’s mother was accorded victim status. The Government also noted that the victims had been informed about the progress of the investigation and that they had never requested to be informed of the results of the forensic expert reports.

On 8 May 2003 the head of administration of Chechen-Aul confirmed the information from the relatives concerning the disappearance of three men on 3 November 2002 and the subsequent discovery of their bodies.

The Government submitted that the investigation had included an examination of the place where the bodies had been discovered and produced forensic expert reports. The reports indicated that the three men could have died as a result of the use of firearms. The Government also submitted that the investigation had not been made aware of the relatives’ allegations made to the Court that the three men had been detained in the vicinity of Minutka Square on 3 November 2002. The investigators would take steps in order to check this information.

In relation to both investigation files, the Government submitted that the investigation had failed to identify the persons who had committed the crimes. The investigating authorities sent requests for information to competent State agencies on 4 November 2002, 2 and 16 December 2002, 31 March 2003 and 7 December 2005. The investigation found no evidence to support the involvement of the “special branches of the power structures” (специальных подразделений силовых структур) in the crimes. The law-enforcement authorities of Chechnya had never arrested or detained the applicants’ relatives on criminal or administrative charges and had not carried out a criminal investigation in respect of them. The investigation also found out that no special operations had been carried out in respect of the applicants’ relatives and that no military vehicles had been assigned by the military commander’s office for that purpose.

In their submissions the Government stated that the investigation in both cases carried out by the Grozny District Prosecutor’s Office had been adjourned and reopened on numerous occasions, owing to the fact that the perpetrators of the crimes could not be identified. Thus, both cases had been adjourned on 7 February 2006. However, on 6 April 2006 the investigations were both resumed in view of the need to check information obtained in the course of operational activities. The progress of both cases was monitored by the Prosecutor General’s Office. The persons who had victim status in the proceedings had been regularly informed of their progress.

As indicated in the documents submitted by the Government, between 23 October 2002 and 6 April 2006, the investigation in case file no. 56166 concerning the murder of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov and Umalat Abayev was adjourned four times, and every time the investigation was later reopened by prosecutors. Investigation file no. 56192 concerning the murders of Aslan Israilov and Khasin Yunusov was similarly adjourned and reopened four times.

Despite a specific request by the Court, the Government failed to disclose most of the material in criminal files nos. 56166 and 56192, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of the notifications to the relatives about the adjournment and reopening of the proceedings. 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 in the criminal proceedings.

B. Relevant domestic law

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

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

COMPLAINTS

1. The applicants submitted that Article 2 of the Convention had been violated in respect of their relatives Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev, Aslan Israilov and Khasin Yunusov. They submitted that the circumstances of their detention and the discovery of their bodies indicated that they had been killed by servicemen. They further submitted that there had been a violation of the procedural aspect of Article 2 since no effective investigation had been carried out into the circumstances of their detention and murder.

2. The applicants submitted that as a result of the anguish and emotional distress they had suffered in connection with the detention and murder of their relatives they had been subjected to ill-treatment falling within the scope of Article 3 of the Convention.

3. 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 Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev, Aslan Israilov and Khasin Yunusov.

4. The applicants complained that they had no effective remedies in respect of the alleged violations of Articles 2, 3 and 5, as guaranteed by Article 13 of the Convention.

5. The applicants alleged, in their latest submissions, that the Government’s failure to produce copies of the files of the criminal investigation constituted a violation of Articles 34 and 38 § 1 of the Convention.

6. In their initial application the applicants also submitted complaints about their relatives’ ill-treatment under Article 3, about their inability to have access to a court under Article 6 and about discrimination under Article 14. However, in their observations on the admissibility and merits of the application they specified that they did not wish to maintain these complaints. In such circumstances, the Court finds no reason to proceed with the examination of these complaints.

THE LAW

A. The Government’s objection concerning exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction and murder of the applicants’ relatives had not yet been completed.

The applicants disputed the Government’s objection. They argued that the criminal investigation had proved to be ineffective and that their complaints to that effect had been futile. They referred to other similar cases pending before the Court where the applicants had appealed to courts against the actions of the investigative authorities, but that avenue had proved futile. They also alleged the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya and referred to the other cases concerning such crimes reviewed by the Court, as well as reports of various NGOs and international bodies. The applicants argued that State representatives had been directly involved in the abduction and murders of their relatives and that for this reason the State authorities were unwilling to investigate the crimes.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the complaint about the effectiveness of the investigation, and thus to the merits of the case, that it is inappropriate to determine it at the present stage of the proceedings.

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

B. Merits of the application

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev, Aslan Israilov and Khasin Yunusov, and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows:

“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.”

The Government submitted that the circumstances of the applicants’ relative’s deaths were under investigation. It had not been established that State agents had been involved in the crimes. The investigation was in compliance with Article 2 of the Convention.

The applicants submitted that their relatives had been detained by servicemen in the course of sweeping operations in Chechen-Aul and in Grozny. They had then been deprived of their lives, while still under full control of State representatives. The applicants also noted that the State had failed to advance any other version of the events or to disclose documents from the criminal investigation files which could shed light on the circumstances of the deaths and invited the Court to draw the relevant inferences.

As regards the procedural obligation under Article 2, the applicants argued that even though investigations had been opened into the abduction and then murder of the six men, they had been inefficient and had been unable to demonstrate any progress over a period of several years. The applicants noted that the cases had been pending for a long time without producing any tangible results, that many important actions had been taken only after the communication of the complaint to the Russian authorities and that they had had no opportunity to acquaint themselves with the case file. No steps had been taken by the investigators to identify and question the possible abductors of Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev, Aslan Israilov and Khasin Yunusov, despite the presence of information about the implication of servicemen in the abductions.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants stated that they had been subjected to treatment in violation of Article 3 of the Convention as a result of the abduction and killing of their close relatives and the authorities’ complacency in the face of their complaints. Article 3 reads:

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

The Government denied that allegation, referring to the absence of such information from the investigations.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants complained that Magomed Shakhgiriyev, Ali Magomadov, Ismail Umarov, Umalat Abayev, Aslan Israilov and Khasin Yunusov had been subjected to unacknowledged detention by State representatives and thus deprived of liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“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.”

The Government submitted that there was no evidence that the applicants’ relatives had been deprived of their liberty by State authorities in violation of Article 5 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicants complained under Article 13 of the Convention that they had had no effective remedies in respect of the alleged violations of Articles 2, 3 and 5 of the Convention. Article 13 reads:

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

The Government contended that the applicants had had effective domestic remedies available to them, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. They noted, in particular, that the bodies of the military prosecutors and military courts had never ceased to function in Chechnya. They thus concluded that the applicants could have appealed to the military prosecutors at various levels, from the military prosecutor of military unit no. 20102 (based in Khankala, the headquarters of the United Group Alignment) up to the Chief Military Prosecutor, and to the military courts of Chechnya and beyond. The Government also noted that the investigation into the deaths of the applicants’ relatives had not yet been completed. They referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation. This, in the Government’s view, was an effective remedy to ensure the observation of their rights. The applicants had never made use of this possibility, which required the initiative of the participants in criminal proceedings, and thus the absence of court action could not constitute a violation of Article 13.

The applicants cited the Court’s case-law on the subject and submitted that the only effective remedy in cases of enforced disappearance was a criminal investigation. As this had proved to be ineffective, the relevance of any other remedy had been undermined.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

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

Declares the application admissible, without prejudging the merits.

Søren NielsenChristos Rozakis
RegistrarPresident

[1]The Government, in their observations, disagreed with some minor factual points. In particular, they suggested different spellings of some names of the persons mentioned in the text. However, they noted that the domestic procedural documents also contained different spellings of the names and different years of births for some persons. The applicants disagreed with this objection. Where possible, the text indicates the discrepancies.

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