Постановление европейского суда по правам человека от 26.07.2007 <дело мусаева и другие (musayeva and others) против россии> [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MUSAYEVA AND OTHERS v. RUSSIA
(Application No. 74239/01)
JUDGMENT <*>
(Strasbourg, 26.VII.2007)
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<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Musayeva and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs {N. Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 5 July 2007,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (No. 74239/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by three Russian nationals, Mrs Aminat Dautovna Musayeva, Mr Alamat Reshetovich Musayev and Mrs Elza Uvaysovna Zurapova ("the applicants"), on 20 September 2001.
2. The applicants, who had been granted legal aid, were represented by Mrs L. Khamzayeva, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicants complained, in particular, of the torture and death of their relatives following their unlawful detention, of the absence of adequate investigation into these events, and the lack of effective remedies in respect of those violations. They relied on Articles 2, 3, 5 and 13 of the Convention.
4. On 29 August 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court.
5. By a decision of 1 June 2006, the Court declared the application partly admissible.
6. The applicants and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.
THE FACTS
I. The circumstances of the case
7. The applicants were born in 1954, 1946 and 1977 respectively and live in the village of Gekhi, Urus-Martan District, Chechnya.
8. The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9 - 55). A description of documents submitted by the Government is contained in section B below (paragraphs 56 - 59).
A. The facts
9. The first two applicants are a married couple. They have four children, two of whom - Ali Musayev, born in 1972, and Umar Musayev, born in 1977 - lived together with their parents in a household comprising two houses in Gekhi. The third applicant was married to Ali Musayev.
1. Detention of Ali and Umar Musayev
10. On 8 August 2000 a Russian armoured personnel carrier (APC) was attacked and blown up in the vicinity of Gekhi and the military responded with a "sweeping" operation in the village.
11. During this operation an armed man, who was being pursued by soldiers, entered the applicants' house and hid in one of the rooms. According to the Government, the man was A., a member of an illegal armed group. The servicemen strafed the house, using machine-guns and grenade-launchers. Two daughters and a grandson of the first two applicants, the second applicant, the third applicant, Ali Musayev and Umar Musayev were inside the house at the time. A two-year-old grandson of the first two applicants was in a car parked in the courtyard.
12. A. was killed when the military threw nine grenades into the house and shelled it from the APC. The servicemen then wrapped the corpse in a blanket and put it into Ali Musayev's car, a white Zhiguli. They then searched the house. Umar Musayev, who had been feeling ill that day and was lying in bed, was blindfolded and ordered to step out of the house and lie down.
13. Major S., an officer in command, seized the identity papers, car documents and car key belonging to Ali Musayev, who was then forced into the car. Umar Musayev was put into an APC which had no visible vehicle number. They were both taken away.
14. The first applicant later found out that the APC number was 108 and belonged to the Main Intelligence Department of the Ministry of Defence of Russia (Главное разведывательное управление Министерства Обороны РФ).
15. Following their detention, Ali and Umar Musayev were brought to a temporary operational headquarters of the military commander's office situated near Gekhi. According to the first applicant, who referred to unnamed witness statements, Ali Musayev was beaten there by federal officers.
16. Thereafter the Musayev brothers were brought to the Urus-Martan Temporary Office of the Interior (временный ОВД Урус-Мартановского района, "the VOVD") and questioned. The first applicant submitted, with reference to the witnesses' accounts, that after the interrogation her sons and three other persons apprehended in Gekhi that day had again been brought to the temporary operational headquarters. At 5 p.m. the military released the other three persons, but not Ali and Umar Musayev, of whom there was no further news.
2. Search for Ali and Umar Musayev
17. Between 8 and 10 August 2000 federal troops sealed off the village of Gekhi. On the latter date, after restrictions were lifted, the first applicant went to Urus-Martan and notified the head of the district administration (глава администрации) of the detention of her sons.
18. She then went to the district military commander's office (районная военная комендатура) where she noticed her elder son's car in the courtyard. The first applicant applied to military commander G. with enquiries about her sons and the car. The military commander told the first applicant that he had no information concerning Ali and Umar Musayev and advised her to come back in two days. As regards the car, Mr G. stated that it was "unclean".
19. On the same date the first applicant also applied to the Urus-Martan prosecutor's office (прокуратура Урус-Мартановского района), claiming that her sons had been unlawfully detained.
20. On 11 or 12 August 2000 the first applicant went to the military commander's office again. Mr G. told her that he had not participated in the "sweeping" operation on 8 August 2000 and had no information about the whereabouts of her sons. Later, the military commander stated that the Musayev brothers had been taken to the main federal military base in Khankala. As to the car, Mr G. said that a database check had confirmed that it was "clean" and that the first applicant had to produce a power of attorney to recover the vehicle. The first applicant stated that she did not have this paper, as all the documents had been in the seized car, and the military commander refused to return the vehicle. In the first applicant's submission, the car was returned only on 4 October 2000, after her son-in-law had brought a copy of the power of attorney from a vendor from Dagestan.
21. During August and September 2000 the first applicant repeatedly applied to the military commander's office, the VOVD and prosecutors at various levels in connection with her sons' disappearance. She received hardly any substantive information from official bodies in reply to her enquiries. The responses were mainly formal ones stating that her requests had been forwarded to different prosecutor's offices.
22. In a letter of 11 September 2000 an acting prosecutor of the Urus-Martan District informed the first applicant that Ali and Umar Musayev were not detained in the VOVD, that they were not listed in the VOVD registration papers, and that no criminal proceedings had ever been brought against them. The letter further stated that information requests sent to military units had remained unanswered, and that the head of the Urus-Martan VOVD had been instructed to commence a criminal investigation into the disappearance of the Musayev brothers.
3. Discovery of the bodies of Ali and Umar Musayev
23. According to the applicants, on 11 August 2000 the Russian TV channel NTV showed Ali Musayev's body as that of a rebel fighter killed during the "sweeping" operation in Gekhi on 8 August 2000. The applicants did not submit a copy of that recording.
24. In early September a serviceman of a military unit stationed in the village of Tyangi-Chu produced a plan of a burial site near the cemetery of Gekhi, where, he claimed, Ali and Umar Musayev had been buried. According to the applicants, they had to pay for the indication of the site.
25. On 13 September 2000 the applicants notified the head of the administration of Gekhi, the Urus-Martan District Prosecutor's Office, the military commander's office and the district administration of Urus-Martan (администрация Урус-Мартановского района) that they were going to excavate the grave.
26. On the same date the second applicant exhumed the grave in the presence of a police officer and officials from the local administration and found four corpses, all of which showed signs of having met a violent death. He identified his sons' bodies by fragments of the remaining teeth. The other two bodies were identified as that of the man killed in the applicants' house on 8 August 2000 and that of a resident of Gekhi, who had been detained along with the Musayev brothers. It appears that the remains were examined by officials of the administration of Gekhi, who issued a certificate in this respect.
27. The police officer undertook no investigative actions at the excavation site. According to the Government, the applicants refused to submit the bodies for an autopsy on account of their national and religious traditions. The applicants buried the remains shortly afterwards, without taking photographs or inviting a medical doctor to attend before the burial.
28. On 7 September 2001 the Urus-Martan Town Court certified the death of Ali Musayev, upon the first applicant's request. The court heard evidence from two witnesses, who confirmed the first applicant's submissions about the detention of her son on 8 August 2000, the discovery of his body and his burial on 13 September 2000 at the Gekhi village cemetery. The court certified that Ali Musayev's death had occurred on 13 September 2000 in the village of Gekhi. It does not appear that a court certification of death was made in respect of Umar Musayev.
29. On 18 September and 9 October 2001 respectively the registry office of the Urus-Martan District issued death certificates for Ali Alamatovich Musayev, born in 1972, and Umar Alamatovich Musayev, born in 1977. The date and the place of death were recorded as 12 September 2000, Gekhi.
30. On 8 October 2001 a medical certificate of death was issued for Umar Musayev. Referring to the certificate of the administration of Gekhi and a certificate of the Urus-Martan prosecutor's office, the medical certificate stated that Umar Musayev's death had been caused by multiple stab wounds and severe injuries. The date and the place of death were recorded as 12 September 2000, Gekhi.
4. Official investigation
31. On 18 September 2000 the Urus-Martan VOVD refused to institute criminal proceedings in connection with the discovery of four bodies on 13 September 2000, referring to the absence of essential elements of a crime.
32. On 18 October 2000 the Urus-Martan prosecutor's office set aside the above decision and instituted criminal proceedings under Article 105 (2-a) of the Russian Criminal Code (murder of two or more persons). The case file was assigned the number 24047.
33. In a letter of 1 November 2000 the military prosecutor of military unit No. 20102 (военная прокуратура - войсковая часть 20102) informed the first applicant that a suspect in the blowing-up of the APC had been found in their house, and that her sons had been detained for an identity check in this connection. The letter confirmed that after being apprehended Ali and Umar Musayev had been brought to the Urus-Martan VOVD but stated that no further information about them was available, since they were not listed among the detained persons. The letter went on to say that on 13 September 2000 a burial site had been excavated by police officers who had found four male bodies there. Two of the bodies had been identified as those of the first applicant's sons. The letter also stated that Major S., the officer in charge of the operation, had left for his permanent location in Penza, and that efforts were being made to obtain information from him about the detention of Ali and Umar Musayev.
34. On 27 November 2000 the Urus-Martan prosecutor's office received a letter from a district prosecutor of the Penza Region informing him that on 15 November 2000 Major S. had been questioned about the operation of 8 August 2000. The transcript of this interview was enclosed. Major S. stated the following:
"From 18 June until 22 September 2000 I was seconded to the town of Urus-Martan, the Chechen Republic. ...
In addition to the Urus-Martan VOVD, military personnel of the troops of the interior and of the army (военнослужащие из внутренних и федеральных войск) and the military commander's company (комендантская рота) also took part in the operation [on 8 August 2000]. I cannot say which particular person was in command of the operation. From our department there was the head of the Urus-Martan VOVD, Lieutenant-Colonel Sh. There were also three generals, whose names I do not know, and military commander G. in the vicinity of the village of Gekhi.
Acting on the instructions of the superiors of the alignment, I and a group of 30 - 35 men arrived by bus and APC in Gekhi at around 11 a.m. ... About 20 men in the group were police officers, the rest were army servicemen. I was in charge of the police officers, and the [army] servicemen were under the command of an officer with the rank of captain, whose name I do not know. I do not know in which particular military units those servicemen served and at whose disposal the APC with the vehicle number 108 was.
During the "sweeping" operation we went to the courtyard of one of the houses. It was subsequently established that the house belonged to the Musayev family. ...
I approached one of the windows and looked inside. I