CASE OF ISAYEV AND OTHERS v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 13;Non-pecuniary damage - award
Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
7. The applicants are: Mr Lecha Isayev, born in 1967; Mr Khamzat Isayev, born in 1975; Ms Madina Alkhanova (subsequently changed her name to Isayeva), born in 1981; and Ms Lipa Dudusheva, born in 1981. 8. The applicants are Russian nationals and residents of the village of Goi-Chu, the Chechen Republic. 9. The first and second applicants are brothers of Mr Zelimkhan Isayev, who was born in 1979. The third and fourth applicants are his sisters-in-law. 10. At the time of the events described below the second to fourth applicants resided together with Zelimkhan Isayev at 24 Sverdlova Street in Goi-Chu. The first applicant resided at 17 Sverdlova Street in Goi-Chu. 11. The account of the events described below is based on the information contained in the application form, a written statement by the first applicant made on 28 October 2004, a written statement by the second applicant dated 30 October 2004, a written statement by the fourth applicant dated 23 October 2004 and a written statement by Mr Zelimkhan Isayev’s other brother, T.I., made on 25 October 2004. 12. In the evening of 9 May 2004 Zelimkhan Isayev and the fourth applicant and her child were at home at 24 Sverdlova Street. 13. At about 8.30 p.m. two UAZ vehicles arrived at 24 Sverdlova Street. A group of armed men wearing masks emerged from the vehicles and burst into the courtyard. Zelimkhan Isayev and the fourth applicant inferred that they belonged to the Russian security forces. 14. Zelimkhan Isayev stepped out of the house into the courtyard and the servicemen apprehended and handcuffed him. According to the fourth applicant, Zelimkhan Isayev showed no signs of resistance. Later on the servicemen took the handcuffed man back into the house. 15. According to the written statement of the fourth applicant, two armed men levelled their guns at her and asked her where the weapons were. They searched the room where the fourth applicant was. One of them tore down a carpet from the wall and checked everything in the room but found nothing. 16. The servicemen also searched the house and courtyard premises without producing any warrant but found no arms. Then they took Zelimkhan Isayev outside, forced him into one of the UAZ vehicles and drove away. 17. Immediately after Zelimkhan Isayev’s arrest the first and second applicants pursued the UAZ vehicles in a car, but in vain. They then visited the head of the local administration and told him that Zelimkhan Isayev had been apprehended. The first and second applicants also went to the department of the interior of the Urus-Martan District (“the ROVD”). The ROVD policemen told them that they had no information on Zelimkhan Isayev’s whereabouts. 18. In the afternoon of 10 May 2004 a group of servicemen from the Federal Security Service (“the FSB”) under the command of D.Ch., an investigator of the FSB Department of the Chechen Republic, arrived at 24 Sverdlova Street and showed the second applicant a search warrant. They searched the house in the presence of two servicemen of the military commander’s office of the Urus-Martan District (“the military commander’s office”) acting as attesting witnesses. D.Ch. asked the second applicant and Zelimkhan Isayev’s other brother, T.I., whether there were any arms in the house; they replied in the negative. 19. Having searched the rest of the house, the servicemen went to Zelimkhan Isayev’s room. According to the second applicant, he observed one of the servicemen stealthily place a grenade in his brother’s bed. Later the servicemen noted in the search report that they had found an explosive device in Zelimkhan Isayev’s room. The report was signed by the aforementioned attesting witnesses; when signing it, the second applicant and T.I. added that they had seen that the grenade had been planted by the servicemen. 20. On 10 May 2004 Zelimkhan Isayev was placed in the temporary detention facility of the ROVD. Later that day Mr A., a police officer of the ROVD, informed the applicants that Zelimkhan Isayev had been transferred from the Urus-Martan Division of the Federal Security Service (“the UrusMartan FSB”) to the ROVD and that he was in very poor health. 21. The applicants went to the ROVD, where they met D.Ch., the investigator who had commanded the FSB officers during the search of 10 May 2004. D.Ch. told them that Zelimkhan Isayev was unwell, that he had been injured during his detention and had a broken rib because he had resisted the servicemen when being arrested. 22. On 11 May 2004 ROVD officers invited a doctor to examine Zelimkhan Isayev because his state of health was growing worse, but they did not allow his transfer to a hospital. 23. On 12 May 2004 the applicants retained a lawyer, who visited Zelimkhan Isayev at the ROVD. The lawyer considered that her client needed urgent medical assistance. 24. On 12 May 2004 (in some of the documents enclosed by the applicants this date is also given as 13 May 2004) the Urus-Martan Town Court held a hearing on the investigators’ request to extend the term of Zelimkhan Isayev’s detention. The judge authorised the extension with reference to Zelimkhan Isayev’s confession and the testimony of his coaccused A.M. Zelimkhan Isayev argued that he had incriminated himself under torture and showed the injuries on his body in the court room. However, that fact did not prompt any reaction on the part of the judge. 25. At some point on 12 May 2004 (in some of the documents enclosed by the applicants the date is referred to as 13 May 2004) Zelimkhan Isayev was transferred to the Urus-Martan district hospital (“the Urus-Martan hospital”). The ROVD policemen guarded his ward. His brothers visited him and, unbeknown to the guards, took photographs of Zelimkhan Isayev’s body. 26. The three pictures submitted by the applicants to the Court represent a man sitting on a bed, his tee-shirt pulled up. Numerous abrasions and bruises can be seen on the man’s body, including his neck, wrists, arms, nipples, navel and a large bruise is visible on the right side of his lower back. 27. In the applicants’ submission, during their visits Zelimkhan Isayev told his brothers what had happened to him after his arrest (see below). 28. On 16 May 2004 Zelimkhan Isayev’s health deteriorated severely. He was spitting blood. The doctors said that they could not do anything for him and that he needed an artificial kidney. The applicants asked D.Ch. to authorise Zelimkhan Isayev’s transfer to a hospital in Nazran, Ingushetia, which, apparently, was better equipped than that of the Urus-Martan District. D.Ch. refused, but sent military doctors from the military commander’s office to examine the detainee. The military doctors measured Zelimkhan Isayev’s blood pressure and examined the X-ray pictures. After the check-up D.Ch. authorised Zelimkhan Isayev’s transfer to the Nazran Hospital. However, Zelimkhan Isayev’s relatives were not provided with an ambulance and had to pay 2,000 Russian roubles to hire one. D.Ch. told the ROVD policemen to accompany Zelimkhan Isayev, but they refused. The detainee was transported to Nazran unguarded. 29. At about 11.30 p.m. on 16 May 2004, shortly after his arrival at the Nazran Hospital, Zelimkhan Isayev died. 30. On an unspecified date Zelimkhan Isayev was buried by his relatives. 31. In the applicants’ submission, Zelimkhan Isayev described to his brothers the events between 9 and 13 May 2004 as follows. 32. When the servicemen apprehended Zelimkhan Isayev on 9 May 2004, they put a plastic bag over his head and forced him down on the floor of the UAZ vehicle. They drove for a while and arrived at the military commander’s office. They took the detainee to the third floor where, according to the applicants, the FSB headquarters were located. 33. Without taking the plastic bag off his head, the FSB officers ordered Zelimkhan Isayev to tell them “everything he knew”. He said that he had nothing to tell. They then gave him several documents to sign, which he refused to do. After that the officers turned on a tape recorder and some of them left the room. Those who remained kicked and beat Zelimkhan Isayev with truncheons and tortured him with electric shocks and cigarette burns. Among other things, they applied electric wires to his genitals and passed the current through them. 34. The servicemen asked Zelimkhan Isayev to disclose his sources of income. He replied that he was buying and reselling scrap. They beat him again and ordered him to sign the documents. Zelimkhan Isayev asked what the documents were. After that the servicemen put another plastic bag over his head and continued to torture him. At some point they filled his mouth with a foul-smelling liquid and forced him to drink it. The torture of Zelinkhan Isayev continued throughout the whole night. 35. On 10 May 2004 Zelimkhan Isayev agreed to sign the documents and did so without reading them. He was then transferred to the temporary detention facility of the ROVD. 36. An excerpt from Zelimkhan Isayev’s medical record issued by the Urus-Martan Town hospital and dated 12 May 2004 mentioned the following injuries: “...numerous bruises, abrasions and electrical burns to the body, upper and lower limbs, peritonitis ... Blunt trauma of the chest [and] the abdominal cavity. Injuries to the lungs and internal organs; major bruising of the thorax, the front abdominal wall and the upper limbs. First-degree burns of the nipples. Contusion of the internal organs? Broken ribs on the left side.” 37. According to the death certificate issued by the Nazran civil registry office and dated 27 June 2004, Zelimkhan Isayev’s death was caused by acute renal insufficiency, anuria and pulmonary oedema, as well as by blunt injuries to the abdomen and chest and broken ribs on the left-hand side. 38. On 8 May 2004 the Chechen Department of the FSB instituted criminal proceedings against A.M. on suspicion of participation in illegal armed groups and terrorist activities. The investigation established that a group including A.M., Zelimkhan Isayev and other members had on several occasions blown up vehicles of the Russian federal forces. It appears that the case file was assigned the number 37045. In some of the documents it is also referred to as no. 94/22. 39. At 4.55 p.m. on 10 May 2004 Zelimkhan Isayev was arrested on suspicion of having participated in illegal armed groups and carried out terrorist activities. 40. On the same day he was interviewed in the presence of counsel and stated that he was unable to testify owing to his bad state of health. 41. On 10 May 2004 the investigator in charge of the case applied to the Urus-Martan Town Court, seeking authorisation to search Zelimkhan Isayev’s home. The request was granted on the same day, following which the authorities searched Zelimkhan Isayev’s house and found a hand grenade there. 42. On 12 May 2004 the Urus-Martan Town Court granted the investigators’ request and ordered Zelimkhan Isayev’s placement in custody. In the Government’s submission, he did not complain about illtreatment at the hearing on his detention. 43. On 12 May 2004 Zelimkhan Isayev was admitted for in-patient treatment to the surgery department of the Urus-Martan Town hospital. 44. On 16 May 2004, following a decision of an investigator of the Chechen Department of the FSB and the recommendations of the doctors of the Urus-Martan Town hospital, Zelimkhan Isayev was transferred to the Nazran hospital where he died on the same day. 45. According to the death certificate of 16 May 2004, Zelimkhan Isayev was admitted to the intensive care unit of the Nazran Hospital from the Urus-Martan Town hospital with the diagnosis: blunt trauma of the chest and the abdomen, broken ribs on the left-hand side, major bruising of the body, oedema of the lungs, acute renal insufficiency. The death was recorded at 11.30 p.m. on 16 May 2004. 46. By a decision of 12 June 2004 D.Ch. discontinued criminal proceedings against Zelimkhan Isayev in view of his death. The decision stated that on 8 May 2004 a criminal investigation had been opened in respect of A.M., who was suspected of terrorist activities and participation in illegal armed groups. The case was assigned the number 94/22. The investigation established that in October 2000 A.M., together with several persons, including Zelimkhan Isayev, had blown up several vehicles of the Russian military. On 10 May 2004 Zelimkhan Isayev was arrested and placed in the temporary detention facility of the department of the interior of the Urus-Martan District. At some point Zelimkhan Isayev confirmed his involvement in the explosions and A.M. testified against him. On 16 May 2004 Zelimkhan Isayev was transferred to hospital and died. 47. On 20 July 2004 the first applicant requested the Prosecutor General’s Office of the Russian Federation and the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) to institute criminal proceedings against the servicemen of the Urus-Martan FSB in relation to the torture which had caused Zelimkhan Isayev’s death. The first applicant described in detail the circumstances of his brother’s arrest and detention and the treatment to which he had been subjected while in custody. He insisted that Zelimkhan Isayev had been arrested on 9 and not 10 May 2004, as stated in the official documents, and that a number of witnesses, including the neighbours of the Isayevs and the deputy head of the local administration, Z.D., could confirm that fact. In support of his submissions he enclosed the death certificate dated 16 May 2004, mentioning numerous injuries sustained by his brother, and the pictures of his body bearing marks of torture, taken during his visit to the hospital. He averred that although at the hearing on 10 May 2004 his brother had complained about the torture and shown the judge the marks of ill-treatment on his body, the Urus-Martan Town Court had disregarded his complaints and ordered his placement in custody. The first applicant stressed that, despite Zelimkhan Isayev’s grave condition, the authorities had not authorised his transfer to a proper hospital until 16 May 2004. 48. The first applicant further stated that on 9 May 2004 the FSB officers had unlawfully searched Zelimkhan Isayev’s home, without providing any further details. He also submitted that during a sweeping operation in Goi-Chu carried out on 11 June 2004, servicemen of the federal forces had harassed Zelimkhan Isayev’s other brothers by taking them to the outskirts of the village, interviewing them about ball bearings they had at home and making a video recording of the interview. The first applicant stated that the FSB servicemen who had tortured his brother were still working in the Urus-Martan FSB and that he considered that Zelimkhan Isayev’s relatives, as witnesses to the crime committed by the FSB officers, were in danger. Accordingly, he requested that the authorities provide for their protection. The first applicant also stressed that although the authorities had been made aware of the torture by 10 May 2004, Zelimkhan Isayev’s relatives had no information as to whether this fact had prompted the opening of an investigation into the torture. Lastly, he requested that he be admitted to any subsequent criminal proceedings as a victim. 49. On 3 August 2004 the republican prosecutor’s office forwarded the first applicant’s request to the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and ordered that the request be included in the investigation file in case no. 94/22 and that the applicants’ submissions be examined and they be informed of any decisions taken by 9 August 2004. 50. By a letter dated 18 August 2004 the district prosecutor’s office informed the first applicant that it had examined his complaint and had decided not to institute criminal proceedings against the FSB officers. The refusal to institute criminal proceedings was enclosed in the letter and, in so far as relevant, stated as follows: “... On 6 August 2004 the district prosecutor’s office received the [first applicant’s] request to institute criminal proceedings against FSB officers ... The complaint alleges that upon admission to the district FSB Zelimkhan Isayev was tortured with electric wires, beaten up and made to sign unspecified documents ... Following the examination of the submissions contained in the complaint it has been established: On 10 May 2004 ... Zelimkhan Isayev was arrested in the village of Goi-Chu ... in connection with the proceedings in criminal case no. 37045 ... During his arrest Zelimkhan Isayev offered resistance and the officers of the district division of the FSB had to apply physical force. According to statements of servicemen of the 13th military commander’s office of the Urus-Martan District ... E.L. and A.Sh., on 10 May 2004 they were invited to participate as attesting witnesses in a search of the Isayevs’ home in the village of Goi-Chu .... The investigator conducted the search in accordance with all requirements of the Code of Criminal Procedure. When it was established that Zelimkhan Isayev felt unwell, he was provided with medical assistance and on 16 May 2004 he was transferred for in-patient treatment to a medical institution. The fact of torture in respect of Zelimkhan Isayev is not confirmed by the materials in the criminal file. From the materials of criminal case no. 37045 ... it appears that suspect Zelimkhan Isayev offered resistance to the law-enforcement officers during his transfer, as a result of which physical force was applied to him and he sustained numerous injuries. Under Article 38 § 1 of the Criminal Code of Russia, inflicting of harm on a person who has committed a crime while arresting him with a view to having him brought before law-enforcement authorities and in order to prevent him from committing further offences, if there are no other means of arresting such person and if the use of force is not excessive, does not constitute a crime. Accordingly, the actions of the officers of the Urus-Martan Division of the FSB, who arrested Zelimkhan Isayev ... did not constitute a crime under Article 286 of the Criminal Code...” 51. The decision stated that it was open to appeal to a higher-ranking prosecutor or a court under Articles 124 and 125 of the Code of Criminal Procedure. 52. By a letter of 7 September 2004 the republican prosecutor’s office informed the first applicant, in reply to his complaint of 20 July 2004, that the military prosecutor’s office of military unit no. 20102 had refused to institute criminal proceedings against the FSB officers on 13 June 2004. The letter stated that on 12 May 2004 the Urus-Martan Town Court had authorised Zelimkhan Isayev’s detention on remand on suspicion of terrorist activities and participation in illegal armed groups. At the time of the arrest Zelimkhan Isayev had hit the FSB servicemen in attempting to escape and, in return, the servicemen had used force and injured him. Accordingly, their actions could be classified as use of force in excess of their powers within the meaning of Article 286 of the Russian Criminal Code. Nevertheless Article 21 of the Russian Federal Law on the Suppression of Terrorism authorised the injuring or killing of terrorists if necessary. The letter concluded that there had been no grounds for prosecuting the FSB servicemen. The letter did not mention that it contained any enclosures, including the decision of 13 June 2004, and there is no indication that the applicants were provided with a copy of the decision of 13 June 2004. 53. On 19 May 2004 the district prosecutor’s office forwarded the materials concerning the death of Zelimkhan Isayev to the military prosecutor of military unit no. 20102 for examination. 54. On 12 June 2004 criminal proceedings against Zelimkhan Isayev were discontinued owing to his death and on 8 July 2004 the deputy prosecutor of the Chechen Republic forwarded the materials of file no. 94/22 to the district prosecutor’s office for further investigation. There the case file was assigned the number 37045. 55. On 13 June 2004 the deputy military prosecutor of military unit no. 20102 decided not to institute criminal proceedings against the officers of the Urus-Martan FSB, finding no evidence of crime. The decision stated that the head of the Urus-Martan FSB and his subordinates had been in charge of Zelimkhan Isayev’s arrest. During his arrest he had attempted to escape and had offered resistance, hitting unspecified FSB officers. The latter had applied physical force to restrain him, as a result of which he had sustained bodily injuries. The above account of events was confirmed by the explanations of FSB officers N. and Ch. 56. On 21 January 2005 the acting prosecutor of the Urus-Martan district set aside the refusal to institute criminal proceedings against the FSB officers and ordered that an additional inquiry be conducted. The Government failed to specify which refusal to institute criminal proceedings had been quashed on that date but it appears that they referred to the decision by the military prosecutor issued on 13 June 2004. 57. On the same date an unspecified authority (apparently the district prosecutor’s office) refused to institute criminal proceedings against the officials of the temporary detention facility of the ROVD on suspicion of abuse of authority (Article 286 of the Criminal Code), finding no evidence of crime. On the same day the materials concerning the use of force by the officers of the Urus-Martan FSB against Zelimkhan Isayev were transferred for examination to the military prosecutor’s office. 58. On 17 February 2005 the deputy military prosecutor of military unit no. 20102 refused to institute criminal proceedings against the FSB officers, finding no evidence of crime in their actions. The related decision stated that during his arrest Zelimkhan Isayev had offered resistance to the FSB officers, following which they had had to apply physical force to restrain him. 59. On 16 November 2007 the deputy Main Military Prosecutor set aside the decision of 17 February 2005 and forwarded the relevant materials for examination to the investigative department of the Investigating Committee with the Prosecutor General’s Office of the Russian Federation. 60. On an unspecified date the relevant materials, as well as a report on the discovery of evidence of crime (“рапорт об обнаружении признаков преступления”) were forwarded to the head of the military investigating department of the United Group Alignment (“the investigating department of the UGA”) for examination. 61. On 21 November 2007 the investigating department of the UGA instituted criminal proceedings against the FSB officers under Article 286 § 3 (a) and (c) (abuse of office associated with the use of violence and entailing serious consequences). The case was assigned the number 34/00/0022-07. 62. In the Government’s submission, the investigation in case no. 34/00/0022-07 is pending. 63. Despite the Court’s repeated requests, the Government refused to produce any documents from the case file concerning the investigation of the death of Zelimkhan Isayev or the case files related to the inquiries into his death conducted by the district prosecutor’s office or the prosecutor of military unit no. 20102. They referred to Article 161 of the Russian Code of Criminal Procedure. 64. In the applicants’ submission, on several occasions D.Ch. invited the Isayev brothers to his office for questioning. They did not specify the dates of those interviews or their subject matter. 65. On 12 June 2004 the Russian military carried out a sweeping operation in the village of Goy-Chu. T.I. and the second applicant were seized and taken to a military base where the servicemen questioned them about ball bearings found in their house. Timur and Khamzat Isayev explained that they used the ball bearings in their work and denied any involvement in illegal activities. They recognised a serviceman who was filming the interrogation as one who had searched their house on 10 May 2004. 66. On an unspecified date D.Ch. questioned the second applicant as a witness. In the second applicant’s submission, the FSB officer pressured him in the course of the questioning. The second applicant provided no further details concerning the alleged pressure put on him. 67. On 12 August 2004 the head of the Goy-Chu village local administration, A.A., allegedly called the first applicant to his office and asked him whether he had complained about his brother’s death to the Prosecutor General. When the first applicant replied in the affirmative, A.A. told him that his complaint to the Prosecutor General might lead to dangerous consequences and advised him to turn for help to A.K., an official of the administration of the Urus-Martan District. 68. On an unspecified date the first applicant talked to A.K. and the latter advised him to withdraw the complaint, implying that the FSB servicemen might take revenge against the first applicant and other relatives of Zelimkhan Isayev. The first applicant replied that it was not possible to withdraw the complaint, which had been sent to Moscow and Grozny. A.K. told him that if the Isayevs stopped complaining about Zelimkhan’s death they would have no further problems with the FSB; the first applicant promised not to file any more complaints or appeals. 69. In the applicants’ submission, when they received the refusal to institute criminal proceedings of 18 August 2004 and the letter of 7 September 2004, they did not dare to take any further steps to challenge those decisions in view of the facts described above. 70. The Government furnished copies of two written statements by A.K. dated 21 November 2007 and 24 January 2008. 71. According to those documents, A.K. stated that he had been working in the local administration of Urus-Martan since 2000 and that he remembered Zelimkhan Isayev’s arrest in 2004 on suspicion of participation in illegal armed groups. However, A.K. had no information on his fate. Zelimkhan Isayev’s relatives had not applied to him in that connection and thus he could not have brought pressure to bear on them or forced them to refrain from lodging complaints against law-enforcement officials. At the material time, owing to a complicated situation in the region, there were many similar cases and A.K. always assisted the residents of the UrusMartan district in obtaining information on the fate of their relatives and the reasons for their detention. According to A.K., A.A. could not have influenced the applicants either, because he was not a law-enforcement officer and thus had no reason to do so. 72. Abuse of office associated with the use of violence and entailing serious consequences carries a punishment of three to ten years’ imprisonment and a ban on occupying certain positions for up to three years (Article 286 § 3 (a, c) of the Criminal Code of the Russian Federation (“the Criminal Code”)). 73. Article 21 of the Suppression of Terrorism Act (Law 130-FZ of 25 July 1998, with further amendments), as in force at the material time, provided that, in accordance with the legislation and within the limits established by it, damage could be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of an anti-terrorist operation. Servicemen, experts and other persons engaged in the suppression of terrorism were exempted from liability for such damage under Russian law. Law 130-FZ was abolished in 2006. 74. Under Article 124 of the Code of Criminal Procedure of the Russian Federation (“the CCP”), a prosecutor can examine a complaint concerning actions or omissions of various officials in charge of a criminal investigation. Once a complaint is examined, the complainant should be informed of its outcome and of possible avenues of appeal against the prosecutor’s decision. 75. Article 125 of the CCP provides that a decision of an investigator or a prosecutor refusing to institute criminal proceedings, as well as other decisions, acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice are open to appeal before a district court. The district court can examine the lawfulness and well-foundedness of the impugned decision, act or omission. Following the examination of the complaint, the district court is empowered to declare the decision, act or omission unlawful or unfounded and order the authority to rectify the shortcomings (Article 125 § 5). 76. Article 161 § 1 of the CCP prohibits the disclosure of details of the preliminary investigation. Such information can be disclosed only with the permission of a prosecutor or investigator and in the amount determined by them, and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings and does not prejudice the investigation (Article 161 § 3). 77. Under Article 1069 of the Civil Code of the Russian Federation, a State agency or a State official is liable towards a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury.