CASE OF DZHABRAILOVY v. RUSSIA
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicants are Mr Aslan (also known as Lukman) Dzhabrailov, who was born in 1979, Ms Umkusu Dzhabrailova, who was born in 1949 and Ms Larisa Dzhabrailova, who was born in 1977. They live in Grozny, Chechnya. The first applicant is the brother of Valid (also spelled as Volid and also known as Lecha) Dzhabrailov, who was born in 1973; the second applicant is his mother and the third applicant is his sister. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. At the material time the applicants and Valid Dzhabrailov lived at 104 Sovetskaya Street in the settlement of Pervomayskiy, in the Grozny district, Chechnya. At about 7 a.m. on 16 February 2003 (in the submitted documents the date was also referred to as 15 February 2003) the applicants and Valid Dzhabrailov were at home, when a group of armed masked men in camouflage uniforms arrived at their gate. The men arrived in a white GAZ car (“Газель”), a blue VAZ-2121 car (“Нива”), a khaki-coloured military UAZ car (“таблетка”) and a UAZ car. The men broke into the house and dispersed into different rooms. The intruders, who spoke unaccented Russian, neither identified themselves nor produced any documents. The applicants thought that they were Russian servicemen. 9. The intruders woke up the second and third applicants, lined them up against a wall and threatened to shoot them if they moved. After that the servicemen went into the room where the first applicant and Valid Dzhabrailov were sleeping. They woke them up, forced the brothers to the floor, handcuffed them and blindfolded Valid Dzhabrailov with the hood of his sweater. Then they took Valid and Aslan Dzhabrailov's passports, beat them, dragged them outside and forced them to the ground. When the second applicant asked the intruders where they were taking her sons, the servicemen told her that they were taking them to a local department of the interior (“в отдел”) for an identity check. After that they forced Valid and Aslan Dzhabrailov, who were already bleeding, into the military UAZ car and drove away to an unknown destination. While travelling in the car, the servicemen beat and kicked the brothers. 10. Upon arrival at the point of destination, the servicemen took Valid Dzhabrailov and the first applicant out of the car, put plastic bags over their heads and bound the bags with adhesive tape. The brothers did not know where they had been taken, but they could hear the sound of military vehicles and helicopters. The first applicant thought that they had arrived at the main base of the Russian military forces in Khankala, Chechnya. 11. After that Valid and Aslan Dzhabrailov were forced to crawl on their hands and knees into a basement where they were thrown on to a cement floor. The brothers were cold and bleeding. Some time later the abductors came into the cell. Valid Dzhabrailov asked them why they had been abducted. In response one of the servicemen gave him several blows to the head and in the stomach with his rifle butt. Valid Dzhabrailov fell unconscious and was dragged outside. After that the brothers were separated and placed into different cells. 12. The first applicant was taken into a small cell in a basement, measuring approximately 2 x 3 metres. The cell had an electric light, a bunk bed and no windows. From the cell he could hear his brother Valid Dzhabrailov being interrogated and screaming as a result of being beaten. 13. After a while two masked men in camouflage uniforms came into the applicant's cell. They asked him a number of questions, such as: whether he had ever laid any landmines and whether he had known any members of illegal armed groups in his village. They beat him with their fists, pistols and a heavy flashlight and kicked him with their heavy boots. The applicant was subjected to such interrogations and beatings several times. The men pressurised the applicant to confess to involvement in illegal armed groups. For two days of his detention in the basement the first applicant was not given any food or drink. 14. It appears that Valid Dzhabrailov was detained in the same building as the first applicant. Between 16 and 18 February 2003 he was subjected to interrogations and beatings. 15. On 18 February 2003 two officers took the first applicant out of the basement, put a plastic bag over his head, bound it and his hands with adhesive tape and pushed him into a military UAZ car. In the vehicle the first applicant felt someone's heavy, cold body on the floor. He realised that this was the body of his brother, Valid Dzhabrailov. 16. The two servicemen took the first applicant and the body of Valid Dzhabrailov to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny. One of them shot the first applicant in the head; the applicant was not killed, but wounded, and he was able to pretend to be dead. 17. The servicemen carried the first applicant and Valid Dzhabrailov's body into a pit and placed them under a piece of a construction block. Then they laid explosives on the first applicant and placed Valid Dzhabrailov's body on top of them. After that they lit the fuse. Having done that, they got back in the car and drove away. 18. The first applicant managed to set himself free and extinguish the burning fuse. He threw the explosives away before they exploded. He ran out into the street and stopped the driver of a passing car who drove him home. 19. Upon returning home the first applicant did not immediately seek medical help; that came at a later stage. The first applicant obtained the following medical statements and submitted them to the Court: 1) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 8 December 2003. The document stated that, as a result of a splinter wound to the head, Aslan Dzhabrailov was suffering from cephalgia (pain in the skull), asthenia and neurosis. 2) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that, as a result of a tangential wound to the head received in 2003, Aslan Dzhabrailov was suffering from asthenia and neurosis. 3) Medical statement issued by a surgeon at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that the applicant had undergone a medical examination of the tangential wound inflicted to his head in 2003. 20. On 18 February 2003 (in the submitted documents the date was also referred to as 17 February 2003) the applicants, their relatives and neighbours went to the Zavodskoy district of Grozny. They found Valid Dzhabrailov's body where it had been left by the first applicant and took it home. According to the witnesses, Ms L.M. and Ms A.M., the body showed traces of torture: it was black from the beatings; the wrists and ankles had been cut to the bone from the wearing of handcuffs and shackles; the palms and feet had been crushed and the head was hardly recognisable. They found a piece of metal wire on the neck but there was no trace of firearm wounds on the body. 21. Valid Dzhabrailov was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities. Two certificates were issued in connection with his death: the medical statement confirming Valid Dzhabrailov's death, dated 17 April 2003 and Valid Dzhabrailov's death certificate, stating that his death had occurred on 17 February 2003. 22. In support of their statements, the applicants submitted: an account by Ms L.M., dated 29 September 2003; an account by Ms A.M., dated 29 September 2003; an account by the first applicant, dated 29 October 2003; an account by the second applicant, dated 29 October 2003; an account by the third applicant, undated, and the three medical certificates, one dated 8 December 2003 and two dated 31 August 2004. 23. The Government did not challenge the facts as presented by the applicants. However, they pointed out that the investigation file contained neither a mention of the first applicant's beating in the car following the abduction nor his assertion that he had heard Valid Dzhabrailov screaming from being beaten while in detention. 24. Since 16 February 2003 the applicants have repeatedly applied in person and in writing to various public bodies, including the district department of the Ministry of the Interior (the ROVD) and prosecutors at various levels. They have been supported in their efforts by the NGO, SRJI. In their letters to the authorities the applicants referred to the events of 1618 February 2003 and asked for assistance and details of the investigation. Mostly, these enquiries have remained unanswered, or purely formal replies have been given in which the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted to the Court some of the letters sent to the authorities and their replies. These documents, as well as the documents submitted by the Government, are summarised below. 25. On 16 February 2003 the Grozny district prosecutor's office inspected the crime scene at the applicants' house. Nothing was collected from the scene. 26. On 17 February 2003 an officer of the Zavodskoy ROVD informed his superiors that at about 6 p.m. on that date the ROVD had received information about the discovery of Valid Dzhabrailov' body in an abandoned building on the premises of a chemical plant and of the first applicant with a gunshot wound in his head. The latter stated that he and his brother, Valid, had been abducted from their house at about 6 a.m. on 15 February 2003 by unidentified armed men in camouflage uniforms; that they had been detained in an unidentified place and then taken by the abductors to the chemical factory in a UAZ vehicle. 27. On 18 February 2003, under Article 126 § 2 of the Criminal Code (aggravated kidnapping), the Grozny district prosecutor's office instituted an investigation into the abduction of Valid and Aslan Dzhabrailov. The case file was given the number 42024 (in the submitted documents the number was also referred to as 42042 and 41026). 28. On 18 February 2003 the investigators examined the crime scene at the place where Valid Dzhabrailov's body had been discovered. The investigators inspected the body on the spot and drafted a report to this effect. As a result, it was established that Valid Dzhabrailov's skull, face, ribs and upper and lower limbs seemed intact; no metal wire was found on his neck. Nothing was collected from the scene. 29. On 18 February 2003 the Grozny town prosecutor's office instituted an investigation into the murder of Valid Dzhabrailov and the case file was given the number 30034. 30. On 19 February 2003 the first and third applicants were granted victim status in the criminal case concerning the abduction and were questioned. 31. During questioning on 19 February 2003 the third applicant stated that at about 7 a.m. on 16 February 2003 a group of military servicemen had arrived at their house in several vehicles and had broken in. They had been armed with automatic guns; their faces had been covered with masks. The intruders had woken up the first applicant and Valid Dzhabrailov, taken their passports and told the third applicant in Russian that they would check her brothers' identities and release them. After that the servicemen had pushed the brothers into a grey UAZ car and taken them away. On 18 February 2003 a woman had arrived at the applicants' house and told them that the first applicant and Valid Dzhabrailov had been in the Zavodskoy ROVD. The applicants had immediately informed the district police officer about it who had gone to Grozny and returned with the body of Valid Dzhabrailov and the first applicant. The body had had numerous injuries and the first applicant had received a gunshot wound to the head. The witness further stated that she had learnt from the first applicant that the brothers had been handcuffed and taken to a basement made of concrete box units. At some point later they had been separated and the first applicant had not seen Valid Dzhabrailov for about twenty-four hours. In the morning of 18 February 2003 a Russian-speaking man in a camouflage uniform had removed the handcuffs from the first applicant, bound his hands, put a sack over his head and bound it with adhesive tape. He had pushed the applicant into a UAZ vehicle beside a cold corpse; the first applicant had thought that it must have been the body of his brother, Valid. The car had been driven for about fifty minutes; then it had stopped and the first applicant had been taken out. He had been dragged about 10-15 metres away from the road; then he had been forced to the ground and shot in the head; he had pretended to be dead. After that they had put Valid Dzhabrailov's body on top of the applicant; then they had placed three pieces of trotyl between the brothers' bodies and lit them. One of the abductors had suggested to the other in Russian: “Lets wait until it explodes” but the other one had said that they'd better leave quickly. After that they had got back into the car and driven away. The first applicant had managed to extinguish the explosive device and made it to the road, where he had stopped a car which had taken him to the Zavodskoy ROVD. On 20 February 2004 the investigators again questioned the third applicant who provided a statement similar to the one given on 19 February 2003. She added that the abductors had told her that they had been taking Aslan and Valid Dzhabrailov to the Staropromyslovskiy ROVD for an identity check; that the abductors had been a group of about thirty men, five of whom had broken into their house. 32. During questioning on 19 February 2003 the first applicant stated that at about 7 a.m. on 16 February 2003 he and his brother, Valid, had been abducted from their home by a group of five armed military servicemen who had arrived in three grey UAZ vehicles, a white four-door “Niva” car and a white “Gazel” minivan. The abductors had blindfolded the brothers and pushed them into a UAZ vehicle. After that the abductors had driven for about fifty minutes and taken the brothers to a windowless basement, which measured approximately 5 x 7 metres and was divided into smaller cells. The first applicant had been taken to a cell with a wooden door where he had been kept for about thirty-six hours. In the evening of 17 February 2003 he had been taken outside by two armed servicemen in uniform, who had put a sack over his head and bound it with adhesive tape. Then they had pushed the applicant into a UAZ car, inside which was a cold corpse. The abductors had driven for about forty to fifty minutes. Then they had stopped, dragged the applicant out of the car and forced him to his knees against a wall. The corpse had been placed next to the applicant. After that the abductors had shot the applicant in the head; he had felt the pain but managed to pretend to be dead. Then the servicemen had placed an object between the applicant and the corpse and set it on fire, discussing whether it would be better to wait for the explosion or not. Next, the abductors had got back into the car and driven away. The applicant had pulled the sack off his head and seen that a pack of trotyl had been placed between him and the corpse of his brother, Valid. He had managed to extinguish the explosive device and throw it away. He had looked around and noticed that he had been taken to an abandoned building on the premises of a former chemical plant in Grozny. He had walked to the road, stopped a car and been driven to the Zavodskoy ROVD where he had informed the authorities about the events. 33. At a later date, on 3 March 2004 the investigators again questioned the first applicant whose second statement about the events of 1618 February 2003 was similar to the one given on 19 February 2003. In addition, he provided a more detailed description of the place of his detention and stated that the abductors had interrogated him and demanded that he confess to laying landmines; that they had beaten him with flashlights and rifle butts; that they had all been wearing uniforms and masks and had been armed with firearms and that one of them had been armed with a military “Makarov” pistol; that one of the abductors had addressed one of the men present during the interrogations in the basement as “Colonel” and that the latter had been wearing a specific reddish camouflage uniform with a peculiar blotted pattern and had been armed with a special sub-machine gun with a silencer; that the two men who had conducted the last interrogation of the applicant had not been wearing masks; that one of them was a large-built, fair-haired man with glasses, of about forty to forty-five years of age, whereas the other one had an Asian appearance, was about the same age and had a similar build to the first one; that these two men had taken the applicant to the premises of the former chemical plant where they had shot him in the head with a sub-machine gun, but the bullet had just grazed his head and he had managed to pretend to be dead; that the men had tried to blow up him and his brother's body; that after the abductors had left he had managed to stop an MAZ vehicle in which there had been two men who had driven him to a security lodge located in a yard with many garages; that three armed men in camouflage uniforms who had been present there had called the Zavodskoy ROVD via a portable radio and that about half an hour later a UAZ car had arrived and taken the applicant to the Zavodskoy ROVD. 34. On 19 February 2003 the investigators questioned the applicants' relative, Mr N.R., whose statement concerning the events of 16-18 February 2003 was similar to the ones given by the first and third applicants. 35. On 14 March 2003 the Grozny district prosecutor's office wrote to the Grozny district department of the Federal Security Service (the FSB) requesting information about the involvement of the first applicant in illegal armed groups. On 15 March 2003 the FSB replied that they had no such information. 36. On 14 March 2003 the Grozny town prosecutor's office joined the investigation in the criminal cases concerning the abduction and the killing. The joint criminal case was given the number 30034. 37. On 18 April 2003 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to identify the perpetrators. 38. On 3 February 2004 the Chechnya prosecutor's office informed the second applicant that her complaint about the killing of Valid Dzhabrailov had been examined and that on 3 February 2004 the investigation had been resumed. 39. On 2-3 March 2004 the Chechnya Bureau of Forensic Expert Evaluations conducted an expert evaluation of Valid Dzhabrailov's body based on the crime scene examination report of 17 February 2003. According to the expert's conclusions: “... The following injuries were found on Valid Dzhabrailov's body: - numerous extensive bruises of the body and the extremities; - circular abrasions on the wrist and ankle joints; 2. The injuries could have been caused by a number of impacts by a dull firm object (objects) two or three days prior to the death; 3. The corpse of V. Dzhabrailov was not examined; therefore, it is not possible to make further conclusions...” 40. On 6 March 2004 the Zavodskoy district prosecutor's office suspended the investigation in the criminal case for failure to identify the perpetrators and informed the applicants about it on 15 or 29 March 2004. 41. On 10 October 2004 the first applicant complained to the Zavodskoy district prosecutor's office that the investigation into Valid Dzhabrailov's murder had been ineffective, that there had been a lack of information about the progress of the investigation and that its suspension had been unjustified. 42. On 11 May 2005 the applicants' representatives wrote to the Grozny district prosecutor's office and the Grozny town prosecutor's office. They described in detail the circumstances of Valid and Aslan Dzhabrailov's abduction and their subsequent detention. In particular, they described the beatings and the ill-treatment to which the brothers had been subjected by the abductors and the abductors' attempt to kill the first applicant. They further complained that the investigations into the abduction and the murder had been ineffective and that there had been a lack of information about the progress of the proceedings, and asked to be provided with copies of a number of procedural decisions. 43. On 14 June 2005 the Zavodskoy district prosecutor's office informed the applicants that on an unspecified date the investigation into the abduction had been joined with the investigation into the murder and the joint criminal case had been given the number 30034. 44. On 21 July 2005 the applicants' representatives wrote to the Zavodskoy district prosecutor's office complaining that the investigation in the joint criminal case had been ineffective and that there had been a lack of information about the steps taken by the investigators. In particular, they pointed out that they had received no information as to whether an expert evaluation of the evidence discovered at the crime scene or a forensic examination of Valid Dzhabrailov's body had been carried out. They further asked that the first applicant be provided with access to the investigation file. 45. On 27 October 2005 and 25 June 2008 the decisions to suspend the investigation were overruled by the supervisory prosecutors for failure to take necessary investigative steps and the proceedings were resumed. 46. The applicants submitted that the authorities had failed to provide them with information concerning the investigation into the abduction and the subsequent killing of their close relative. 47. The Government submitted that the investigation in criminal case no. 30034 was still in progress. The perpetrators of the abduction and the killing had not been identified, but the domestic authorities were taking steps to have the crime resolved. The applicants had been duly informed of all decisions taken during the investigation. 48. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 30034. They submitted copies of several documents and 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 because the file contained personal data concerning the witnesses or other participants in the criminal proceedings. 49. On 23 September 2005 (in the submitted documents the date was also referred to as 23 September 2003 and 11 October 2005) the first applicant complained to the Zavodskoy district court of Grozny. He described in detail the events of 16-18 February 2003, including the beatings to which he had been subjected by the abductors, and complained that the investigation in criminal case no. 30034 had been ineffective and that its suspension had been unjustified. The applicant sought a ruling obliging the authorities to resume the investigation and provide him with access to the investigation file. 50. On 28 October 2005 the Zavodskoy district court rejected the complaint stating that the investigation in the criminal case had been resumed on 27 October 2005. 51. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).