UTSAYEVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29133/03
by Satsita UTSAYEVA and Others
against Russia

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

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

Having regard to the above application lodged on 29 August 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) Mrs Satsita Utsayeva, born in 1954;

2) Mr Aslambek Utsayev, born in 1948;

3) Mrs Khava Muslimova, born in 1986;

4) Mrs Belita Dadyeva, born in 1952;

5) Mrs Yakhita Taysumova, born in 1985;

6) Mrs Zulay Abdulazimova, born in 1943;

7) Mrs Birlant Tovmerzayeva, born in 1943;

8) Mrs Larisa Tovmerzayeva, born in 1968.

The applicants are Russian nationals and residents of the village of Novye Atagi, Shali 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. 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. They are linked to the application Imakayeva v. Russia (Imakayeva v. Russia, no. 7615/02, 9 November 2006) in that the four relatives of the applicants in the present case were detained together with the husband of Marzet Imakayeva, Said- Magomed Imakayev, on 2 June 2002 in the village of Novye Atagi (see below).

1. Detention of the applicants’ relatives on 2 June 2002

The applicants submitted that early in the morning of 2 June 2002 a convoy including at least six armoured personnel carriers (APCs) and at least one other military vehicle – a UAZ all-terrain vehicle - conducted a “sweeping” operation in the village of Novye Atagi. The local residents noted the hull numbers of three APCs: 569, 889 and 1252, and of the UAZ vehicle -344. The hull numbers of the other vehicles were obscured. The servicemen went to six houses during the operation and detained five men. The applicants submitted numerous affidavits about the events of 2 June 2002 produced by the family members of the detained and the neighbours.

The applicants submitted that the village of Novye Atagi had been under firm control by the Russian military since early 2000. Military checkpoints had been established at all roads leading into and out of the village. The applicants submitted a hand-drawn map of the village, indicating the location of the roadblocks and of the houses of the five persons detained on 2 June 2002.

(a) Detention of Islam Utsayev

The first and the second applicants are husband and wife. They were residents of Grozny, but for several years lived in Novye Atagi at 22 Nizhnya Street as internally displaced persons. Their son Islam Utsayev, born in 1976, had lived with them in Novye Atagi since 1999. Before that he used to be a student at the Grozny University philological faculty, but in October 1999 he was seriously injured during a rocket attack at the Grozny central market. Following the injury he underwent several operations and left the university. He worked as a car mechanic and supported his parents who were unemployed. The couple’s second son died during hostilities of 1994 – 1996, and a third son was detained by security services and ill-treated in 2001, following which he suffered from poor health. The third applicant is Islam Utsayev’s wife.

In the morning on 2 June 2002 the first two applicants, their sons Islam Utsayev and his wife, the third applicant, and Bislan Utsayev and his wife, Liza Khadisova, were at their home at 22 Nizhnya Street. At that time the third applicant and Liza Khadisova were pregnant. It was still dark outside and the family was sleeping when at about 5.30 a.m. an APC knocked over the fence and drove into the courtyard. A group of about 20 heavily armed servicemen in uniform entered the house and woke up the family. Four of the servicemen were masked, the rest were not. The applicants described them as “contract soldiers”, aged between 30 and 40. They were of Slavic complexion and spoke unaccented Russian. More servicemen remained outside on the hull of the APC, while others took positions around the house.

Without producing any warrant or explanation, the soldiers forced the Utsayev family members into the courtyard and onto the ground. They surrounded Islam Utsayev and beat him. The second and the third applicants were also beaten when they asked for explanations, and the third applicant, Islam Utsayev’s pregnant wife, submits that she had a miscarriage later that day. Islam Utsayev, who was taken from his bed barefooted and wearing only a light T-shirt, was hooded, his hands were tied behind his back and he was forced into an APC. The first applicant tried to climb onto the APC to give her son footwear, but was pushed away and hit by several soldiers. The soldiers fired from automatic rifles in the air to scare away the neighbours who tried to intervene.

In their observations the Government submitted that no information about the alleged beatings and miscarriage of the third applicant had been recorded in the medical institutions of the Shali district. They also stated that the third applicant’s current place of residence was unknown and that her relatives had refused to give any testimonies on the subject.

(b) Detention of Movsar Taysumov

The fourth and the fifth applicants are the mother and sister of Movsar Taysumov, born in 1980. They lived at 1 Lenin Street in Novye Atagi. Movsar Taysumov worked as a guard at the local school and was not married. His brother Masud was killed by unknown persons in January 2002, along with two other men who went to gather firewood near the river Argun. In May 2002 his father, the fourth applicant’s husband, died of a heart attack.

In the morning on 2 June 2002 at about 6 a.m. the fourth applicant and her son Movsar Taysumov were at their home when an APC pulled up outside the house. The fourth applicant was at her morning prayers, and her son Movsar was still asleep. The fifth applicant, Movsar’s sister, was at a hospital for a check-up. Four men in green uniform entered the house. They did not wear masks and the fourth applicant reported that they had Slavic features and spoke unaccented Russian.

The military did not present themselves or give reasons for the visit. They woke up Movsar Taysumov and ordered him to dress quickly. They said they needed to question him, collected his passport and took him outside. The fourth applicant followed them and pleaded with them to question her son at home. An officer told her that if he was innocent he would soon return. The soldiers put Movsar Taysumov into an APC. The fourth applicant tried to climb onto the hull, but the soldiers swore at her and hit her with rifle butts until she fell. Several neighbours tried to come closer and intervene, but soldiers who took positions around the house shot in the air as a warning.

Once Movsar Taysumov was inside, the APC drove further along the Lenin Street. The fourth applicant and her neighbours clearly noted its hull number 569. The fourth applicant followed it along the street and witnessed from a distance how it stopped at the Tovmerzayevs’ house and how another person (Masud Tovmerzayev) was put into it. The fourth applicant also noticed several other APCs along the street, though she did not notice their numbers.

(c) Detention of Idris Abdulazimov

The sixth applicant is the mother of Idris Abdulazimov, born in 1984. In 1997 he finished the seventh grade and thereafter helped his mother around the house. They lived at 19 Lenin Street with the sixth applicant’s other three children.

On 2 June 2002 the sixth applicant, her daughter Louiza and three sons, Akhmad, Vakhid and Idris, were sleeping at their home. At about 6 a.m. an APC stopped at their house and a group of about 30 military servicemen surrounded the house, about half of them wearing masks. The applicant described them as being heavily armed, wearing new camouflage uniforms and speaking unaccented Russian. Approximately ten servicemen entered the house, shouting and swearing. They pulled the applicant’s three sons on the floor and asked their names. They then told Idris to dress. The applicant’s oldest son asked them to take him instead of his 18-old brother, but one of the soldiers said “We don’t need you”. They took Idris Abdulazimov and placed him into an APC with an obscured number. The applicant tried to get onto the APC, but her elder son pulled her off.

The applicant asked a soldier with Asian features on the hull of the APC where they were going, and he responded that they were going to the military commander’s office. The APC drove along and stopped by a house further down the street to detain another person who was not at home. The applicant followed the vehicle to the cemetery at the end of the village and then returned home.

(d) Detention of Masud Tovmerzayev

The seventh and the eighth applicants are the mother and sister of Masud Tovmerzayev, born in 1974. He was unmarried and had worked at a shoe factory and at the market. They lived at 62 Lenin Street, together with the seventh applicant’s other children and grandchildren.

On 2 June 2002 the seventh and the eighth applicants and Masud Tovmerzayev, the seventh applicant’s son, were at home. Her other daughter, Madina, was not at home that night. At about 6 a.m. they were already awake, because the seventh applicant was planning to go to town and had to catch a bus; the eighth applicant had to take care of the cattle. Masud was still in bed.

The seventh applicant opened the gate and at that time an APC stopped outside of their house. The woman was surprised and asked them if they were going to conduct a “mopping-up” operation, but they did not answer. One of the soldiers on the APC asked “Which gate?” and another pointed to the applicant’s. Immediately 20-25 armed servicemen entered the courtyard. The applicants and neighbours described them as well armed, wearing green camouflaged uniforms, some of them were masked. She noted several men with Asian features among the servicemen.

The eighth applicant asked the seventh applicant to go into the house and to watch so that the soldiers would not plant anything there. The soldiers asked the eighth applicant where her brother was and went to his room. One of them had a piece of paper and asked her “Is that Masud?” When she answered in the affirmative they put him on the floor and handcuffed him. One of the servicemen asked about weapons, while others were searching the house and the car. They then put Masud Tovmerzayev, without permitting him to dress or to put on footwear, into the APC no. 569, and drove away. The neighbours were not allowed to approach because the soldiers shot into the air. Masud Tovmerzayev’s aunt, who came to the house because of the noise and tried to intervene, was pulled by the hair and hit by a soldier.

(e) Detention of Said-Magomed Imakayev

Finally, at around 6.20. a.m. on 2 June 2002 servicemen on APCs 889 and 1252 and UAZ 344 drove to Ordzhonikidze Street, two blocks away from the Tovmerzayevs’ house. At 11 Ordzhonikidze Street they detained Said-Magomed Imakayev, husband of Marzet Imakayeva. After the stop at the Imakayevs’ house the APCs and other military vehicles left Novye Atagi. Some of the military vehicles apparently drove towards Grozny, while others went in the direction of the 70-th regiment stationed near Shali. The families of the five men detained on 2 June 2002 in Novye Atagi have had no news of the detained ever since.

2. Search and investigation into the “disappearances”

Immediately after the detention of their family members the applicants started to search for them. The search was primarily carried out by the mothers of the detained men, together with Marzet Imakayeva, the applicant in application no. 7615/02. On numerous occasions, both in person and in writing, they applied to the prosecutors of various levels, to the Ministry of Interior, to the Special Representative of the Russian President in the Chechen Republic for rights and freedoms, to military commanders, the Federal Security Service (FSB), to the administrative authorities in Chechnya, to media and to public figures. The applicants also personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further in the Northern Caucasus.

On 2 June 2002, immediately after the detention the four mothers, together with Marzet Imakayeva and Abdula Datsayev, the head of the Novye Atagi administration, drove in the Abdulazimovs’ family minibus to Shali, the district centre, to inquire about the whereabouts of their relatives. At the military commander’s office in Shali the applicants unsuccessfully sought to meet with the commander General Nakhaev. They were told by the staff at the military commander’s office that they had not received any detainees that morning. They received a similar answer at the police station.

The next day, on 3 June 2002, the applicants again travelled to Shali. Abdula Datsayev, the head of the village administration, was permitted to meet with General Nakhayev who allegedly confirmed to him that the men had been detained at the military commander’s office and would be released in three days.

After the expiry of three days the applicants again started to visit the commander’s office in Shali, together with the head of the village administration. About ten days later the commander’s office staff denied that the detainees had been there.

At some point in August 2002 the applicants managed to meet with General Nakhayev who denied that his servicemen had participated in a military operation in Novye Atagi on the date in question. At that time the applicants spotted APC no. 569 in the courtyard of the commander’s office. Upon their demands the commander questioned the driver of that vehicle about the events of 2 June 2002. The driver confirmed that two men had been detained in the APC on 2 June 2002 but that they had been handed over to other military at a checkpoint.

The applicants unsuccessfully tried to meet with the officers of the military prosecutor’s office in Shali in order to have the drivers of the APCs and other servicemen questioned.

Besides personal visits, the applicants addressed numerous letters to the prosecutors and other authorities, in which they stated the facts of their sons’ detention and asked for assistance and details on the investigation. The applicants have submitted copies of more or less standard letters they have written.

The applicants received hardly any substantive information from official bodies about the investigation into the disappearances. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of letters retained by the applicants and replies they received from the authorities.

(a) Correspondence maintained by the first applicant

On 3 June 2002 the first applicant wrote to the head of the Shali district administration in relation to Islam Utsayev’s detention and requested assistance in finding him. She also mentioned the “rough” treatment of herself and other members of the family during detention.

Either on the same day or immediately after, in three identically worded complaints the applicant addressed herself in writing to the military commander of the Shali district General Nakhayev, the military prosecutor of the Shali district and the head of the Shali temporary district police department (VOVD).

On 5 June 2002 the first applicant wrote to the military prosecutors of military units no. 20116 and 20102 based in Shali and Khankala (Grozny), stating details of her son’s detention and requesting their help in finding him. Also on 5 June 2002 the first applicant wrote a similar letter to the head of the Novye Atagi village administration, Abdula Datsayev.

On 8 June 2002 the first applicant wrote to the State Duma member for Chechnya and the Special Representative of the Russian President in the Chechen Republic for rights and freedoms.

On 20 June 2002 the first applicant wrote a complaint to the Shali District Prosecutor’s Office, with copies to the head of administration of Chechnya and the commander of the federal forces in Chechnya. She stated the facts of her son’s detention and asked for assistance in finding him.

On 1 July 2002 the applicant received a reply from Mr Aslakhanov, member of the State Duma from Chechnya, in which he informed her that her letter had been forwarded to the Chechnya Prosecutor’s Office and that he would seek to verify if her son had been detained by the authorities.

On 17 September 2002 the first applicant again addressed the military prosecutor of military unit no. 20116 and the heads of administration of Novye Atagi and the Shali district, looking for information about Islam Utsayev.

On 30 September 2002 a prosecutor from the Shali district office informed the applicant that the criminal case into her son’s kidnapping (no. 59176) had been suspended. The letter did not state reasons for the suspension, but informed her that she could appeal against the decision to the Shali District Prosecutor or to a сourt.

On 3 October 2002 the first applicant received a copy of a letter by the Chechnya Republican Prosecutor’s Office, by which her compliant had been forwarded to the Shali District Prosecutor.

On 7 October 2002 the Chechnya Prosecutor’s Office informed the first applicant that the investigation into her son’s kidnapping had been suspended on 30 September 2002 due to a failure to identify the culprits (Article 208 part 1 of the Criminal Procedure Code). The applicant was invited to address her further queries to the District Prosecutor’s Office.

On 9 October and on 23 October 2002 the Shali District Prosecutor’s Office acknowledged receiving the applicant’s complaints which had been added to the investigation file and informed her of suspension of the investigation into Islam Utsayev’s “disappearance”.

On 14 November 2002 the Chief Military Prosecutor’s Office requested the military prosecutor’s office of the United Group Alliance in the Northern Caucasus (UGA) in Chechnya to investigate the “disappearance” of the first applicant’s son and other men detained on 2 June 2002.

On 5 March 2003 the applicant submitted a complaint (dated 10 December 2002) to the military prosecutor of the joint federal forces in Chechnya, summarising the facts of her son’s disappearance, the efforts to find him and requesting assistance.

On 6 February 2003 the Chechnya Republican Prosecutor’s Office forwarded complaints by three applicants (Utsayeva, Tovmerzayeva and Abdulazimova) to the prosecutor’s office of the Shali District. On 12 February and on 14 March 2003 the three women were informed by the district prosecutor’s office that their complaints would be taken into account and investigated.

On 28 February 2003 the Chechnya Prosecutor’s Office informed the first applicant that they had forwarded her letter to the military prosecutor of the UGA in Chechnya. The letter stated that the investigation file no. 59140 had been sent to the military prosecutor’s office on 29 October 2002.

In March 2003 the Government of Chechnya twice informed the first applicant that her complaints had been forwarded to the military prosecutors, to the Chechnya Republican Prosecutor’s Office and to the local department of the Ministry of the Interior.

On 19 April 2003 the first applicant addressed the Shali District Prosecutor’s Office asking for an update on the status of the investigation and asking to be granted victim status in the proceedings.

On 25 April 2003 the military prosecutor of the UGA forwarded the applicant’s complaint to the military prosecutor of military unit no. 20116.

On 23 May 2003 the Chechnya Ministry of the Interior replied to the deputy head of the investigative department of the Southern Federal Circuit that on 1 August 2002 the criminal case opened into Utsayev’s disappearance had been forwarded to the military prosecutors.

On 27 May 2003 the military prosecutor of military unit no. 20102 informed the first applicant that the materials of the case file did not confirm involvement of military servicemen in the crime under investigation.

On 2 June, 6 June and 25 June 2003 the Chechnya Republican Prosecutor’s Office in similarly worded letters informed the applicant that the decision of 30 September 2002 to suspend the investigation into her son’s kidnapping had been quashed by the Shali District Prosecutor and that the investigation had been reopened on 29 May 2003.

On 18 June 2003 the military commander of the Shali district informed the applicant that the Shali District Prosecutor’s Office was investigating her son’s “disappearance”.

On 15 July 2003 the State Duma member Mr Aslakhanov replied to the first applicant saying that he was taking all steps to ensure her son’s release.

On 12 August 2003 the military prosecutor of military unit no. 20116 replied to the first applicant’s complaints of December 2002 and March and May 2003. The letter stated that the file of the criminal investigation opened in relation to the kidnapping of four men in June 2002 was at that office. The letter did not say whether the investigation was suspended or ongoing, but invited the applicant to arrive to the office to take part in procedural steps and to get access to the case file. The letter also stated that no evidence had been obtained which could link the kidnapping to any military servicemen.

At some point the applicant wrote to the all-Russian NTV channel, addressing their programme “Attention: Search!”. She asked the journalists to conduct an investigation and to help her in finding her son Islam Utsayev. In reply the NTV stated that work in Chechnya was too dangerous for journalists.

(b) Correspondence maintained by the fourth applicant

On 2 July 2002 the fourth applicant received a copy of the letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor’s Office, which stated that there was no evidence to believe that the criminal acts had been committed by the servicemen of the joint group forces.

On 16 July 2002 the Shali District Prosecutor’s Office informed the fourth applicant that an investigation had been opened by their office in relation to the kidnapping of Movsar Taysumov under Article 126 part 2 of the Criminal Code.

On 25 July and on 10 September 2002 the Government of Chechnya informed the applicant that her complaints had been forwarded to the Shali District Prosecutor’s Office.

On 16 September 2002 the Shali District Prosecutor’s Office informed the applicant that the investigation into her son’s kidnapping (file no. 59155) had been suspended. The letter did not state reasons for the suspension, but informed her that she could appeal against the decision to the Shali District Prosecutor or to a сourt.

On 2 October 2002 the military prosecutor for the Northern Caucasus Military Circuit forwarded the applicant’s complaint to the military prosecutor of military unit no. 20116.

On 15 November the Shali District Prosecutor’s Office informed the fourth applicant that her complaint of 12 November 2002 about her son’s death could not be considered because it had not been signed by her. The applicant was invited to appear at the prosecutor’s office at any time to obtain information concerning the criminal investigation.

On 5 March 2003 the applicant’s complaint, dated 15 December 2002, was accepted by a military prosecutor of the joint group forces. The complaint summarised the applicant’s efforts to find her son and requested urgent assistance.

On 19 February 2003 the Shali District Prosecutor’s Office informed the applicant, in reply to a request from Amnesty International made on her behalf, that criminal case no. 59155 had been opened by that office in relation to her son’s kidnapping. All necessary and possible investigative measures had been undertaken, but on 15 September 2002 the investigation was suspended due to the failure to identify the culprits (Article 208 part 1 of the Criminal Procedure Code). The letter further informed the applicant that measures to find her son were continuing and that she could challenge the decision to suspend the investigation either before a prosecutor or in a court.

On 26 March 2003 the military prosecutor of military unit no. 20116 informed the fourth applicant that troops under their jurisdiction had not detained her son. The letter advised her to approach the local police.

On 5 April 2003 the applicant complained to the Shali District Prosecutor’s Office. She stated that she had not received any information about the course of the investigation, requested updated information about its progress and that she be granted victim status.

On 15 April 2003 the Shali District Prosecutor’s Office wrote to the applicant informing her that criminal case no. 59155 had been suspended. Actions aimed at locating Movsar Taysumov’s whereabouts were continuing. The applicant was also informed that she had been granted victim status in the proceedings.

On an unspecified date Abdula Datsayev, the head of the Novye Atagi village administration, addressed the Special Representative of the Russian President in the Southern Federal Circuit, asking him to intervene and help find Movsar Taysumov.

On 25 November 2004 the fourth applicant was granted victim status in the criminal investigation no. 59155 into her son’s abduction.

(c) Correspondence maintained by the sixth applicant

On 5 June 2002 the sixth applicant prepared a letter to the military prosecutor of military unit no. 20116 about the detention of her son Idris Abdulazimov. The complaint was submitted on 19 June 2002.

On 5 June 2002 the sixth applicant complained about her son’s detention and requested his release and information about his whereabouts from the Shali District Prosecutor’s Office, the military commander and the head of the interior department of the Shali district.

On 2 July 2002 the sixth applicant received a copy of the letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor’s Office, which stated that there was no evidence to believe that the criminal acts had been committed by the servicemen of the joint group forces.

On 16 July 2002 the Shali District Prosecutor’s Office informed the applicant that an investigation had been opened by their office in relation to the kidnapping of her son under Article 126 part 2 of the Criminal Code.

On 8 August 2002 the applicant was informed by the Shali District Prosecutor’s Office that a criminal investigation file concerning her son’s kidnapping had been opened under file no. 59159.

On 23 August 2002 the Chechnya Prosecutor’s Office forwarded the applicant’s complaint to the Shali District Prosecutor’s Office.

On 3 September 2002 the Chechnya Government informed the applicant that her complaints had been forwarded to the criminal department of the Chechen police, the prosecutor’s office and police of the Shali district, the military prosecutor’s office and the Chechnya Prosecutor’s Office.

On 4 September 2002 the Shali District Prosecutor’s Office informed the applicant that they were investigating criminal case no. 59159 and taking steps to establish her son’s whereabouts.

On 16 September 2002 the Shali District Prosecutor’s Office informed the applicant that the investigation into her son’s kidnapping had been suspended, without giving any further details.

On 2 October 2002 the military prosecutor for the Northern Caucasus Military Circuit forwarded the applicant’s complaint to the military prosecutor of military unit no. 20116.

On 22 November 2002 the military prosecutor of military unit no. 20116 informed the applicant that they had requested information about Idris Abdulazimov from the head of the Chechnya department of the FSB, the commander of the joint group forces and the head of the operative headquarters on coordination of the anti-terrorist operation in the Northern Caucasus.

On 16 January 2003 the Chechnya department of the FSB replied to the applicant that it had no information about the whereabouts or activities of her son. It further informed the applicant that her complaint had been forwarded to the military prosecutors.

On 6 February 2003 the Chechnya Prosecutor’s Office forwarded complaints by three applicants (Utsayeva, Tovmerzayeva and Abdulazimova) to the prosecutor’s office of the Shali District. On 12 February and on 14 March 2003 the three women were informed by the district prosecutor’s office that their complaints would be investigated.

On 5 April 2003 the applicant wrote to the Shali District Prosecutor’s Office. She stated that she had not received any reliable information about the course of the investigation, requested updated information about its progress and that she would be granted victim status.

On 6 June 2003 the Shali District Prosecutor’s Office replied to applicant saying that the criminal investigation into the kidnapping of her son had been suspended. Actions aimed at locating Idris Abdulazimov’s whereabouts were continuing.

On an unspecified date Abdula Datsayev, the head of the Novye Atagi village administration, addressed the Special Representative of the Russian President in the Southern Federal Circuit, asking him to intervene and help find the sixth applicant’s son.

(d) Correspondence maintained by the seventh applicant

On 2 July 2002 the seventh applicant received a copy of the letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor’s Office, which stated that there was no evidence to believe that the criminal acts had been committed by the servicemen of the joint group forces.

On 16 July 2002 the Shali District Prosecutor’s Office informed the applicant that an investigation had been opened by their office in relation to the kidnapping of Masud Tovmerzayev under Article 126 part 2 of the Criminal Code.

On 2 August 2002 the Shali District Prosecutor’s Office informed the applicant that a criminal investigation into her son’s kidnapping had been opened under file no. 59154.

On 4 September 2002 the Chechnya Prosecutor’s Office informed the seventh applicant in reply to her complaint that the Shali District Prosecutor’s Office was investigating criminal case no. 59154 and taking steps to establish her son’s whereabouts.

On 10 September 2002 the Government of Chechnya informed the applicant that her complaints had been forwarded to the Shali District Prosecutor’s Office.

On 16 September and on 23 September 2002 the Shali District Prosecutor’s Office informed the applicant that the investigation into her son’s kidnapping had been suspended and that she could appeal against the decision to a prosecutor or to the court.

On 17 September 2002 the applicant wrote to the head of the village administration of Novye Atagi and asked for his help to find and release her son.

On 2 October 2002 the military prosecutor for the Northern Caucasus Military Circuit forwarded the applicant’s complaint to the military prosecutor of military unit no. 20116.

On 6 November 2002 the military prosecutor of military unit no. 20116 informed the applicant that they were not aware of Masud Tovmerzayev’s detention and had not issued any documents in that respect. The letter further stated that a request about the applicant’s son’s whereabouts had been forwarded to the headquarters of the joint group forces in the Northern Caucasus and that she should contact the local department of the interior for issues related to the search for the missing persons.

On 16 January 2003 the Chechnya department of the FSB replied to the applicant that it had no information about the whereabouts of her son. It further informed the applicant that her complaint had been forwarded to the military prosecutors.

On 6 February 2003 the Chechnya Republican Prosecutor’s Office forwarded complaints by the three applicants (Utsayeva, Tovmerzayeva and Abdulazimova) to the prosecutor’s office of the Shali District. On 12 February and on 14 March 2003 the three women were informed by the district prosecutor’s office that their complaints would be investigated.

On 5 March 2003 the applicant’s letter, bearing the date of 5 June 2002, was accepted by a military prosecutor of the joint group forces. The letter stated the circumstances of her son’s detention and requested information about his whereabouts and reasons for detention.

On 5 April 2003 the applicant wrote to the Shali District Prosecutor’s Office. She stated that she had not received any reliable information about the course of the investigation, requested updated information about its progress and to be granted victim status.

On 16 April 2003 the Shali District Prosecutor’s Office responded that the investigation in the criminal case no. 59154 had been suspended.

On an unspecified date Abdula Datsayev, the head of the Novye Atagi village administration, addressed the Special Representative of the Russian President in the Southern Federal Circuit, asking him to intervene and help find the sixth applicant’s son.

(e) Summary of the above proceedings

The applicants were thus informed that criminal investigations had been opened in respect of the kidnappings of their relatives: no. 59176 in respect of Islam Utsayev, no. 59155 in respect of Movsar Taysumov, no. 59159 in respect of Idris Abdulazimov and no. 59154 in respect of Masud Tovmerzayev. From the letters received from different authorities the applicants could also understand that at some point the investigation was joined under no. 59140, initially opened in relation to the kidnapping of Said-Magomed Imakayev. The applicants were not informed by the prosecutors which steps had been taken in order to find their relatives, nor were they allowed access to the case-files. In June 2003 the first applicant was informed by the Chechnya Republican Prosecutor’s Office that the decision to suspend investigation into her son’s kidnapping had been quashed and that the investigation was reopened. None of the applicants were informed of the progress in the investigation after that date.

The applicants also understood that in October 2002 the investigation was transferred from the Shali District Prosecutor’s Office to the military prosecutors. Then at some point the case-file was returned to the Shali office. However in August 2003 the military prosecutor of the military unit no. 20116 invited the first applicant to visit the office and informed her that the file was with them. The letter did not indicate whether the proceedings were pending or suspended at that time.

(f) Information provided by the Government

In their observations submitted in December 2004 the Government did not dispute the information concerning the apprehension and the investigation into the kidnapping of Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev. Referring to the information obtained form the General Prosecutor’s Office, the Government stated:

“On 2 June 2002 at about 5.30 a.m. unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons, supported by armoured vehicles, had arrived to Novye Atagi and detained Utsayev I.A., Taysumov M.M., Abdulazimov I.A., Tovmerzayev M.E. and Imakayev S.-M.U. These men were subsequently taken by the unidentified persons to an unknown direction.

On 28 June, 15 July and 31 July 2002 the Shali District Prosecutor’s Office opened five criminal investigation files into the kidnappings: nos. 59176, 59155, 59159, 59154 and 59140 under Article 126 part 2 (a) and (g) of the Criminal Code.

Criminal investigation file no. 59140 concerning the kidnapping of Imakayev S.- .U. had been transferred for investigation to the military prosecutor of the UGA.”

The Government also stated that the investigation had not confirmed the involvement of the federal servicemen in the kidnapping of the applicants’ relatives. The indicated hull numbers of the APCs were not listed in the relevant registers. The investigation was adjourned and reopened on several occasions and was most recently resumed on 30 September 2004. Its progress was monitored by the General Prosecutor’s Office.

In their additional Memorandum submitted in April 2005 the Government submitted further details of the investigations. According to them, criminal case file no. 59176 had been initiated on 31 July 2002 into the kidnapping of Islam Utsayev. On the same day the first applicant had been questioned and granted victim status. She was again questioned on 22 June 2003, 30 August 2003 and 18 October 2004. The second applicant was questioned on 18 October 2004 and confirmed the circumstances of his son’s detention. Two neighbours were questioned but could not indicate the identity of the kidnappers. The site of the crime was inspected at some point, but no relevant clues were discovered.

According to the Government, criminal case file no. 59155 into the abduction of Movsar Taysumov was initiated on 15 June 2002. The fourth applicant was questioned on 16 July 2002, 30 August 2003 and 18 October 2004. She was also granted victim status. In September 2004 two neighbours were questioned by the local police, but they were not aware about the identity of the perpetrators of the crime.

The Government further specified that on 15 July 2002 criminal investigation file no. 59159 was opened into the abduction of Idris Abdulazimov. The sixth applicant was questioned on 16 July 2002 and on 27 September 2004. She was also granted victim status in the proceedings. Three of her neighbours and the former military commander of the Shali district, General Nakhayev, had also been questioned. An inspection of the site of the crime took place, but produced no results.

Finally, they submitted that on 15 July 2002 criminal case no. 59140 [should probably be no. 59154] had been opened into the abduction of Masud Tovmerzayev. The seventh and the eighth applicants were questioned and granted victim status on 16 July 2002 and on 18 November 2004, accordingly. The investigation also questioned five of their neighbours and relatives, the head of the Administration of Novye Atagi, General Nakhayev and a serviceman of the military commander’s office. The inspection of the site of the crime had produced no results.

No other witnesses of the crimes were identified by the investigation.

According to the Government, in 2002 - 2004 a number of information requests were forwarded to the relevant bodies concerning special operations carried out by the military forces. Despite these efforts, no information was obtained which would imply that the four men had been detained by the federal forces. Their names were not found in the registers of the persons detained on suspicions of committing a criminal offence or arrested by way of administrative procedure.

The Government conceded that the four investigations had been repeatedly suspended and reopened, due to the failure to identify the culprits. They alleged that the victims had been informed of all the decisions made. The proceedings in criminal case no. 59176 had been reopened on 24 March 2005, and in criminal cases nos. 59154, 59155 and 59159– on 1 April 2005.

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”.

3. Information concerning the kidnapping of Said-Magomed Imakayev

Marzet Imakayeva, the wife of Said-Magomed Imakayev, the fifth man detained on 2 June 2002 in Novye Atagi, applied to the European Court of Human Rights (see Imakayeva v. Russia, no. 7615/02, 9 November 2006). Within these proceedings the Government first denied that Said-Magomed Imakayev had been apprehended by law-enforcement or security bodies and suggested that he had been abducted by members of a terrorist organisation with a view to discrediting the federal forces.

Later both parties submitted to the Court that on 9 July 2004 the criminal investigation into the abduction of Said-Magomed Imakayev was closed on the ground that no criminal offence had been committed. The applicant was informed at that stage that in fact her husband had been detained by military servicemen, but the detention had been carried out in accordance with the Federal Laws on the Suppression of Terrorism and on the Federal Security Service and he had been subsequently released. On 9 July 2004 her victim status was withdrawn. According to the Government, on 2 June 2002, military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. His involvement was not established, however, and he was transferred to the head of the Shali administration (who later died) to be returned home. No abduction had been committed and the actions of the servicemen who had detained Mr Imakayev did not constitute an offence. Mr Imakayev’s further absence from his place of residence was not connected to his detention by military servicemen, so the applicant had suffered no pecuniary or non-pecuniary damage. The Government did not submit any documents of substance from the investigation file concerning Said-Magomed Imakayev’s abduction.

In its judgment the Court found it established to the standard of proof “beyond reasonable doubt” that Said-Magomed Imakayev had been detained by the security forces on 2 June 2002. No records had been drawn up in respect of his detention, questioning or release. After that date he “disappeared” and his family had had no news of him.

4. Alleged harassment of the applicants

In August 2004 the applicants informed the European Court of Human Rights about two security incidents in respect of the second applicant. According to the applicants’ representatives, on 4 July 2004 and then again on 30 July 2004 a large group of military personnel arrived at the first and second applicants’ house at 22, Nizhnya Street in Novye Atagi. On both occasions the servicemen arrived in the early hours of the night in several APCs, broke into the house without identifying themselves or giving any reasons for the intrusion, conducted an unsanctioned search and confiscated a number of items.

According to the applicants, on 4 July 2004 the servicemen severely beat the second applicant, who is a pensioner and disabled (he is blind in one eye), on his head and torso, knocking him unconscious. They also threatened to shoot the first applicant, her daughter-in-law and two-year old granddaughter. When leaving they took with them household items of some value and a copy of the application to the European Court as well as the file with correspondence with various authorities maintained by the first applicant in relation to her son’s disappearance.

The second applicant submitted that he had been severely physically traumatised by the beatings and had difficulty in walking. He submitted that he had visited three hospitals where doctors performed X-rays and confirmed concussions to the ribs and spinal column, but refused to issue him any medical documents fearing reprisals. The first applicant also submits that immediately after the incident she applied to the prosecutor’s office, but they refused to accept her complaint or to conduct an investigation upon it.

On 30 July 2004 the servicemen who arrived to the Utsayevs’ family house in masks again searched the house, hit the second applicant in the back several times, dragged him into the garden and dropped him there face down.

On 18 August 2004 the Court, in accordance with Rule 40 of the Rules of Court, gave notice of the application and of the complaint about harassment to the Russian Government. In their observations the Government stated that a prosecutor’s check has been conducted into these complaints. Within this check the first and the second applicants were questioned but denied that they had applied to the European Court with such complaints. They allegedly stated that on the said dates the military servicemen had conducted an identity check in their house, but that no unlawful actions had been committed. On 8 November 2004 the Shali District Prosecutor’s Office refused to initiate criminal proceedings due to absence of corpus delicti. The Government did not submit any documents relating to these proceedings.

In their submissions of March 2005 the fourth applicant alleged that a number of checks had been carried at her house in December 2004 by the security servicemen. They failed to identify themselves or to present her with the reasons for the searches. She submitted that on 24 December 2004 she had been detained by the servicemen of the security guards under command of Mr Ramzan Kadyrov, the Deputy Prime Minister of Chechnya, at their base in Shali, from 6 a.m. to 4 p.m. She was twice questioned and accused of housing and feeding extremists at her house. The applicant denied any wrongdoings and was eventually released.

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 submitted that the known circumstances of their relatives’ detention and absence of any news from them since 2 June 2002 gave rise to a strong presumption that they had been extrajudicially executed by the Russian servicemen, in violation of Article 2 of the Convention. They also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev, in violation of the procedural obligations under Article 2 of the Convention.

2. The applicants submitted that the anguish and distress suffered by them as a result of “disappearance” of their close family members and the lack of an adequate response on behalf of the authorities amounted to treatment in violation of Article 3 of the Convention.

3. The second and the third applicant complained about beatings and mistreatment inflicted upon them by the servicemen on 2 June 2002 while arresting Islam Utsayev, as a result of which the third applicant had had a miscarriage. In addition, the complaint was brought by the first three applicants about ill-treatment and beating of Islam Utsayev during his arrest.

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

5. The applicants submitted that they were deprived of access to a court, contrary to the provisions of Article 6, because their civil claim for damages would entirely depend on the outcome of the criminal investigation into the disappearances. In the absence of any findings, they could not effectively apply to a court.

6. The applicants complained that the searches conducted in their homes on 2 June 2002 were in violation of the provisions of Article 8.

7. The applicants complained that they had no effective remedies in respect of the above violations, as guaranteed by Article 13.

8. The applicants alleged, in their latest submissions, that the Government’s failure to produce copies of the criminal investigation files constituted a violation of Article 38 (1) of the Convention.

THE LAW

The applicants raised complaints set out above relying on Articles 2, 3, 5, 6, 8 and 13 of the Convention.

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 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 application to a civil court would not be an effective remedy against the type of violations alleged. As to criminal-law remedies, the applicants argued that 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.

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. Submissions by the parties

The Government relied on a reply from the Prosecutor General’s Office, stating that the investigation had not established the involvement of the military personnel in the abduction of Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev. They further argued that there was no convincing evidence that the applicants’ 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 in line with the standards of the Convention and of the domestic law.

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 four relatives on 2 June 2002 had represented federal forces. They referred to the official acknowledgement of detention of Said-Magomed Imakayev and argued that their relatives had been detained within the same security operation. They underlined the non-disputed involvement of armoured vehicles, one of which had been later spotted by them at the local military commander’s office, and which could not have been available to the illegal armed groups. They questioned the credibility of the Government’s assertion about the absence of the APCs’ numbers in the relevant registers, given that the Government had failed to explain how they had reached this conclusion and the absence of any relevant documents.

The applicants stated that the investigation carried out into the disappearances had been inadequate and ineffective. They noted that they were not aware of any meaningful steps taken by the law-enforcement bodies to resolve the abductions. They referred to the delays in taking the most trivial steps, such as granting the victim status to them and other family members. In support of their argument regarding the inefficiency of the investigation, the applicants also referred to the Government’s refusal to submit any documents from the files in the criminal cases concerning their relatives’ disappearance.

The Government further contended that there was no evidence that Islam Utsayev or the applicants had been subjected to treatment prohibited by Article 3 of the Convention. They noted that the whereabouts of the third applicant could not be established and thus she could not be questioned, while other relatives had refused to give testimonies about the incident. As to the applicants’ allegations about harassment, the Government submitted that they were unsubstantiated. The applicants alleged that no proper investigation of these complaints has taken place and pointed out that they, as other victims of serious human rights violations in Chechnya, were fearful for their safety and reluctant to talk to the State representatives.

As regards Article 5, the Government argued that there was no evidence to conclude that the applicants’ relatives had been apprehended by the State representatives. The applicants stated that unacknowledged detention of their relatives run contrary to the principles of Article 5.

The Government stated that under Article 8 there was no evidence to conclude that the servicemen of the federal forces had entered the houses of the applicants and conducted unlawful searches there. The applicants insisted on their complaints under this heading.

Finally, the Government contended that the applicants 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. The Government insisted that the applicants, as participants in criminal proceedings, 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. They could also apply to the courts in Chechnya or in the neighbouring regions with complaints about allegedly unlawful actions of the State bodies. The applicants disputed this assertion.

2. 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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