CASE OF GIRIYEVA AND OTHERS v. RUSSIA
Violation of Art. 2 (substantive aspect);Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicants are: Ms Zara Giriyeva, who was born in 1957, Mr Musost Aygumov, who was born in 1982, and Ms Zarema Aygumova, who was born in 1991. The first applicant lives in Grozny, the second and third applicants live in Avtury, Chechnya. The first applicant is the mother of Isa Aygumov, who was born in 1977; the second applicant is his brother and the third applicant is his sister. 6. At the material time Avtury village was under the full control of Russian federal forces. Military checkpoints manned by Russian servicemen were situated on the roads leading to and from the settlement. The military commander’s office was located in the village. The applicants, Isa Aygumov and other relatives lived at 13 Naberezhnaya Street (in the submitted documents the address was also stated as 11 Naberezhnaya Street) in Avtury, in the Shali district of Chechnya. The household consisted of two dwellings in one yard. 7. In the afternoon of 9 January 2002 Isa Aygumov, the second applicant and a number of their neighbours, including Mr S.Sh., Mr A.S., Mr Kh.D., Mr A.Kh., Mr M.S., Mr S.Kh., Mr I.Kh. and Mr S.-M.M., were helping the applicants’ family to saw up firewood in the area next to the courtyard. The first applicant was not at home that day. 8. At about 4 p.m. Isa Aygumov went to the courtyard to fetch a shovel. At that moment two UAZ vehicles arrived at the applicants’ gate. One of them had the registration number 635 with the regional number 95. Another two UAZ cars stopped about 100 metres away down the street. A large number of armed military servicemen in camouflage uniforms got out of the vehicles. Some of them were wearing masks; those not masked were of Slavic appearance. 9. The servicemen split into several groups. One of them ran into the courtyard. Isa Aygumov saw the servicemen and ran to the house of his neighbours, the M. family. He told Mr S.-M. M. and his wife Ms Z.M. that a group of military servicemen had broken into his household, that he was scared and wanted to hide in their house. Four servicemen ran after Isa Aygumov. They climbed over the neighbours’ fence and asked the neighbours in unaccented Russian where Isa was. Then the servicemen found him in one of the rooms, tied his hands behind his back and took him outside. 10. Meanwhile other servicemen quickly searched the applicants’ house. They did not explain their actions; they neither identified themselves nor produced any documents. They ordered the family members to stay quiet. As a result of the search they took Isa Aygumov’s passport. The officers also searched the dwelling of the applicants’ relative Mr A.A. Immediately after the search the servicemen shut the third applicant and her relatives in the house and propped a metal pipe against the door outside to keep it closed. 11. In the meantime another group of servicemen made all the men who had been sawing up firewood lie face down in the snow; a soldier stood over each of them. Mr I.Kh. asked the officers why they were there. In response, one of the officers pointed his gun at him and said that if he kept asking questions they would take him away. The officers did not ask the men for identity documents. One of the soldiers pulled the second applicant’s head up from the ground and asked his colleague whether they were supposed to take this man away. The other responded in the negative. 12. While they were shut in the house the applicants’ relatives saw from the window the four servicemen taking Isa Aygumov away from the neighbours’ yard and putting him into one of the UAZ vehicles. After that the cars drove away in the direction of Shali. 13. The abduction of Isa Aygumov was witnessed by the second and third applicants, their relatives and neighbours. 14. In support of their statements, the applicants submitted the following documents: a statement by Ms Zh.G. dated 20 February 2008; a statement by Mr S.Sh., undated; a statement by Mr Kh.D., undated; a statement by Mr I.Kh., dated 29 February 2008; and a statement by Mr S.-M.M., dated 29 February 2008. 15. The Government did not challenge the facts as presented by the applicants. They stated that the abduction had been perpetrated by unidentified armed men and that no special operations had been conducted in Avtury on 9 January 2002. 16. Immediately after the abduction, the applicants and their relatives complained about it to the head of the Avtury village administration. On the following day, 10 January 2002, the applicants complained about the abduction to the Shali district department of the interior (“the ROVD”) and the Shali district prosecutor’s office (“the district prosecutor’s office”). 17. On 31 January 2002 the district prosecutor’s office instituted an investigation into the abduction of Isa Aygumov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 59046. 18. Around 9 February 2002 a group of investigators from the district prosecutor’s office visited the applicants’ house and questioned some of the family members about the events of 9 January 2002. 19. On 19 February 2002 the first applicant wrote to the head of the ROVD and complained that her son Isa Aygumov had been abducted by Russian federal servicemen in four UAZ vehicles, one of which had had the registration number 635 95/RUS. 20. On 12 March 2002 the head of the ROVD replied to the applicant, stating that as of 9 January 2002 Isa Aygumov had not been detained in local detention facilities. The letter also included the following: “... based on the description of the car [provided by you to the authorities] the investigation identified one vehicle, which is currently being examined in connection with its possible involvement in your son’s abduction ...” 21. On 18 March 2002 the military prosecutor’s office of military unit no. 20116 informed the first applicant that their inquiry had not established whether federal servicemen were involved in her son’s abduction. 22. On 6 April 2002 the district prosecutor’s office informed the first applicant that the investigation in criminal case no. 53046 had been resumed because the ROVD had not carried out the necessary operational-search measures. 23. On 31 July 2002 the investigators informed the applicants that they had opened a criminal case in connection with the abduction of Isa Aygumov. 24. On 19 August 2002 the Chechnya Ministry of the Interior (“the Chechnya MVD”) forwarded the first applicant’s complaint about her son’s abduction to the Shali ROVD. 25. On 2 October 2002 the military prosecutor’s office of the North Caucasus Military Circuit forwarded the first applicant’s complaint about the abduction to the military prosecutor’s office of military unit no. 20116 for examination. 26. On 22 November 2002 the military prosecutor’s office of military unit no. 20116 informed the first applicant that they had forwarded information requests concerning detention of Isa Aygumov to the Chechnya Federal Security Service (“the FSB”), the Headquarters of the United Group Alignment (“the UGA”) and the Regional Headquarters of Counterterrorist Operations in the Northern Caucasus. 27. On 16 December 2002 the district prosecutor’s office informed the first applicant that they had resumed the investigation of the criminal case. 28. On four occasions between December 2002 and August 2005 the Chechnya prosecutor’s office forwarded the first applicant’s complaints to the district prosecutor’s office for examination. 29. On 16 January 2003 the district prosecutor’s office informed the first applicant that they had suspended the criminal investigation for failure to identify the perpetrators. 30. On 25 February 2003 the district prosecutor’s office informed the first applicant that they were verifying the information which she had provided in her complaint concerning the abduction. 31. On 4 March 2003 the Department of the Prosecutor General’s office in the Southern Federal Circuit forwarded the first applicant’s complaint about the abduction to the Chechnya prosecutor’s office. 32. On 7 July 2003 the military prosecutor’s office of the UGA forwarded the first applicant’s complaint about the abduction to the military prosecutor’s office of military unit no. 20116 for examination. 33. On 23 July 2003 the district prosecutor’s office informed the first applicant that they had resumed the investigation of the criminal case. 34. On 2 November 2006 the applicants’ representatives wrote to the district prosecutor’s office and requested to be provided with an update on the criminal investigation. In particular, they asked to be informed about the following: whether the owner of the UAZ car with the registration number 635 had been identified; whether the first applicant had been granted victim status in the criminal case; and whether she could be provided with access to the investigation file. 35. On 20 February 2008 the first applicant complained to the district prosecutor’s office that she had no information concerning the investigation of the criminal case. 36. On 20 February 2008 the district prosecutor’s office informed the first applicant that on 4 September 2003 they had suspended the investigation of the criminal case for failure to identify the perpetrators. 37. According to the applicants, none of the applicants’ neighbours who had witnessed the abduction were questioned by the investigators until November 2009. 38. According to the applicants, the investigation was suspended prematurely on numerous occasions. For instance, no proceedings were pending between 25 February 2003 and 13 November 2006, between 13 November 2006 and 20 February 2008, and between 14 March 2008 and 6 November 2009. 39. On 10 January and again on 23 January 2002 the first applicant complained to the district prosecutor about her son’s “arrest” at his house at about 3.35 p.m. on 9 January 2002. She stated that Isa Aygumov had not participated in the activities of illegal armed groups and requested the prosecutor to take measures to release him from detention. 40. On an unspecified date in January 2002 the applicants’ relative Mr A.A. (Isa Aygumov’s uncle) complained to the Shali district military commander and the Shali district military prosecutor about Isa Aygumov’s abduction by officers from the Shali ROVD. He stated that Isa had been abducted from his house and that the officers had arrived in two UAZ minivans (”Таблетка”). 41. On 31 January 2002 the district prosecutor’s office instituted an investigation into the abduction of Isa Aygumov. The text of the document was not clear, as it stated that the applicants’ relative had been abducted either from the local hospital or from his house: “... at about 8 p.m. on 9 January 2002 unidentified armed men in camouflage uniforms, armed with automatic weapons, took Isa Aygumov away from the Shali central district hospital, where he had applied [for medical assistance] in connection with a gunshot wound to his face; [the abductors ] took Isa Aygumov away from his house at no.11 in Naberezhnaya Street, Avtury ...” 42. On 31 January 2002 the investigators questioned the applicants’ relative Mr A.A., who stated that at about 3.30 p.m. on 9 January 2002 a group of masked men in camouflage and the grey uniforms usually worn by the police had arrived at Isa Aygumov’s house. The witness and a number of other relatives of the applicants as well as their neighbours had been present during the abduction. The abductors had put the witness and the other men face down in the snow and demanded their identity information. The abductors, who had arrived in several vehicles, including two UAZ minivans, had taken Isa Aygumov to the Shali ROVD. 43. On the same date, 31 January 2002, the investigators granted Isa Aygumov’s wife Ms Z.B. victim status in the criminal case and questioned her. She stated that at about 3.30 p.m. on 9 January 2002 her husband had been abducted from his house by a group of masked armed men in camouflage uniforms, who had behaved aggressively and searched the house. The abduction had taken place in the presence of the second and third applicants, their relatives and neighbours. The abductors had arrived in four vehicles, including two grey UAZ minivans. 44. On 31 January 2002 the investigators questioned the applicants’ relative Ms B.A., whose statement about the circumstances of the abduction was similar to the one given by Ms Z.B. In addition, the witness stated that the abductors had taken Isa Aygumov to the Shali ROVD. 45. On 10 February 2002 the investigators requested that the Shali FSB informed them whether they had detained the applicants’ relative. The text of the document included the following: “... the investigation established that at about 3.35 p.m. on 9 January 2002 four vehicles, including two UAZ minivans, one of them with the registration number 635, had arrived at [the applicants’] address. Men of Slavic appearance in camouflage uniforms had put Isa Aygumov in one of these vehicles and taken him to the Shali ROVD. His whereabouts have been unknown since. You are asked to inform us of the following: did any of your employees participate in the arrest of Isa Aygumov? Does your agency have a UAZ minivan with the registration number 635 and if not, do you know to which agency this vehicle might belong? Is Isa Aygumov registered by your agency as a member of illegal armed groups? ...” 46. On 19 February 2002 the first applicant complained to the Chechnya prosecutor about her son’s abduction. She stated that Isa Aygumov had been abducted by representatives of Russian federal forces who had arrived at her house in four UAZ vehicles, two of which were minivans, one of which had the registration number 635 95 RUS. 47. On 2 March 2002 the investigators granted the first applicant victim status in the criminal case. 48. On 13 March 2002 the first applicant again complained to the Chechnya prosecutor about her son’s abduction by representatives of Russian federal forces. On the same date she also lodged a similar complaint about the abduction with the district military commander’s office. 49. On 31 March 2002 the investigation in the criminal case was suspended for failure to identify the perpetrators. 50. On an unspecified date in April 2002 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature. The text of the document included the following: “... the examination of the investigation file demonstrated that the preliminary investigation has been conducted passively, and the circumstances of events established by the investigators had not been fully and objectively assessed by them. For instance, the investigators had not looked into the fact that Isa Aygumov had been abducted by men in camouflage uniforms who had driven around in UAZ vehicles. The investigators had failed to identify the neighbours and local residents who had witnessed the crime; they had not examined the crime scene and had not obtained replies to their information requests from the ROVD ... and the FSB ...” 51. On 4 May 2002, upon the supervising prosecutor’s instructions, the investigation in the criminal case was resumed. 52. On 6 May 2002 the supervising prosecutor instructed the Shali ROVD to comply with the investigators’ request for assistance in the search for Isa Aygumov of 1 February 2002. 53. On 25 May 2002 the Shali FSB informed the investigators that their employees had not been involved in Isa Aygumov’s arrest, that their agency did not have a UAZ minivan with the registration number 635, and that they did not have any compromising information concerning Isa Aygumov. 54. On various dates in the spring of 2002 the investigators asked a number of the district departments of the interior and the district prosecutors’ offices in Chechnya whether they had arrested or detained Isa Aygumov. Negative responses were received from all the agencies. 55. On an unspecified date in June 2002 the investigation in the criminal case was suspended for failure to identify the perpetrators. 56. On 12 July 2002 the investigators requested the Traffic Police Department of the Chechnya MVD to inform them of the identity of the owner of a grey UAZ minivan with the registration number 635 95 RUS. 57. On 1 December 2002 the supervising prosecutor overruled the decision to suspend the criminal investigation as unsubstantiated and premature. The prosecutor criticised the investigators and pointed out that they had failed to take a number of basic steps: “... the investigators failed to take all the necessary measures ... For instance, no plan of investigative action has been drawn up so far ...; Not all the theories concerning the identities of the perpetrators have been examined ... The investigator Mr G.A. had not taken a single investigative step [while in charge of the investigation] ... ... the crime scene has not been examined; The owners of the UAZ vehicle with the registration number 635 95 RUS, which was used by the abductors to take Isa Aygumov away, have not been identified; ... to remedy the above shortcomings of the investigation, it is necessary: To obtain responses to the information requests forwarded [to a number of law-enforcement agencies]; To request information from the MVD and the FSB concerning special operations on 9 January 2002, the units involved and the results of these operations; To identify and question additional witnesses; To find out whether the drivers of the vehicles with the registration numbers 635 95 RUS had been involved in the abduction ...” 58. On 16 December 2002, following orders from the supervising prosecutor, the investigation of the criminal case was resumed. 59. On 30 January 2003 the Chechnya MVD informed the investigators that they had not conducted any special operations in Avtury on 9 January 2002, that they had not detained Isa Aygumov and that they did not have a UAZ vehicle with the registration number 635 95 RUS. 60. On an unspecified date in January 2003 the FSB informed the investigators that they had not conducted any special operations in Avtury on 9 January 2002 and that they had not detained Isa Aygumov. 61. On 16 January 2003 the investigation of the criminal case was again suspended for failure to identify the perpetrators. 62. On 4 August 2003 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and ordered that the proceedings be resumed. The text of the decision included the following: “... the investigator Mr A.B. had suspended the investigation of the criminal case without having taken a single one of the steps ordered by the supervising prosecutor ...” 63. On 12 August 2003 the investigators examined the crime scene at the applicants’ household. Nothing was collected from the scene. 64. On 1 September 2003 the investigators questioned the applicants’ neighbour Mr S.-M.M., who stated that in January 2002 he had been at home when a group of masked armed men in camouflage uniforms ran into his yard looking for Isa Aygumov. They had entered the witness’s house, found Isa there and taken him away. 65. On 4 September 2003 the investigation in the criminal case was suspended again for failure to identify the perpetrators. The applicants were informed about it. 66. On 2 November 2006 the first applicant again complained to the district prosecutor about her son’s abduction by federal servicemen. She provided a description of the circumstances surrounding the events and requested assistance in the search. 67. On 13 November 2006 the investigators informed the applicants that they had suspended the investigation in the criminal case. 68. On 13 November 2006 the ROVD informed the first applicant that they were taking operational-search steps to establish the whereabouts of Isa Aygumov. 69. On 20 February 2008 the first applicant requested the investigators to inform her about the progress in the investigation and resume the proceedings. 70. On the same date, 20 February 2008, the investigators informed the applicants that the investigation in the criminal case had been suspended on 4 September 2003. 71. On 5 March 2008 the first applicant complained to the district prosecutor’s office, stating that her complaint had been fully allowed by the district court (see paragraph 89 below), but that the investigators had failed to comply with the court’s decision and carry out an effective investigation of the criminal case. She requested the investigators to comply with the court orders and resumed the investigation. 72. On 14 March 2008 the district prosecutor’s office rejected the first applicant’s complaint as unsubstantiated, stating that all the necessary investigative measures had been taken by the investigators. The applicant was informed about this decision. 73. On 6 November 2009 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and premature. The prosecutor criticised the investigation and ordered that the investigators took a number of basic steps which they had failed to take before. 74. On 11 November 2009 the investigators questioned the first applicant, who stated that on 9 January 2002 she had been visiting her parents when the second applicant had arrived at their house and informed her that Isa Aygumov had been abducted by a group of about fifteen armed military servicemen in camouflage uniforms, who had arrived at the applicants’ house in two UAZ vehicles. On that date Isa Aygumov and his seven male neighbours and relatives had been sawing up logs next to the applicants’ yard. When Isa saw the armed men he ran to the neighbours, while the seven other men were pushed face down in the snow by the intruders. The servicemen had searched the house, turning everything upside down, found Isa’s passport and taken it away with them. After the search the servicemen, who had spoken unaccented Russian, had blocked the entrance door, shutting the residents inside the house, and left, propping the door closed from outside with a metal pipe. The applicant’s relatives Ms Zh.G. and Ms Z.A. had seen from the window a group of servicemen taking Isa from the house of their neighbours, the M. family. Isa’s hands were behind his back. The servicemen had put Isa in the grey UAZ vehicle with a registration number containing the digits 635 and regional indication 95. Shortly after the abduction the first applicant and her relatives had complained to the head of the Avtury village administration, Mr I.U., who had promised to assist them in the search for their relative. On the next day the applicants had complained about the abduction to the district prosecutor’s office and the ROVD. 75. On 12 November 2009 the investigators questioned the first applicant’s sister, Ms Zh.G., and the second applicant, both of whom had witnessed the abduction of Isa Aygumov. Their statements were similar to the one given by the first applicant. 76. On 18 November 2009 the Chechnya FSB informed the investigators that they had not conducted any special operations on 9 January 2002 in Avtury and did not have any information as to whether Isa Aygumov was involved in illegal armed groups. 77. On 20 November 2009 the investigators questioned the applicants’ relatives Mr O.A., Ms Z.A. and Ms B.A., all of whom had witnessed the abduction of Isa Aygumov. Their statements were similar to the one given by the first applicant. 78. On 25 November 2009 the investigators questioned Mr I.M., who stated that he had had a 1973 UAZ vehicle with the registration number A635 BE95 RUS. The car was very old, required constant repair and therefore had hardly been used. In 2005 the witness had sold the car to a man in Zaki-Yurt, Chechnya. 79. On 25 November 2009 the Chechnya MVD informed the investigators that they had not conducted any special operations on 9 January 2002 in Avtury and that they did not have any information as to whether Isa Aygumov had been involved in illegal armed groups. 80. On various dates in November 2009 the investigators received replies to their information requests from various detention centres and regional departments of the interior in the Northern Caucasus. All of the agencies stated that Isa Aygumov had not been detained by their officers, that he was not listed as a detainee and that no corpse with features similar to those of Isa Aygumov had been found in their areas. 81. On 3 December 2009 the investigators questioned the applicants’ neighbour, Mr M.S., whose statement concerning the abduction was similar to the one given by the first applicant. 82. On 4 December (in the submitted documents the date was mistakenly stated as 4 November 2009), 5 and 7 December 2009 the investigators questioned the applicants’ neighbours Mr Ya.Sh., Mr Kh.D., Mr A.Kh. and Mr S.Kh., all of whom had witnessed the abduction of Isa Aygumov. Their statements were similar to the one given by the first applicant and the other witnesses. 83. On 7 December 2009 the investigators questioned the applicants’ neighbour Mr S.-M.M., whose statement about the circumstances surrounding Isa Aygumov’s abduction was similar to the one given by the first applicant. In addition, he stated that Isa had run into his house to hide from the abductors, but three or four of them, who were in camouflage uniforms and black masks, broke in, searched the premises, dragged Isa outside and took him away. 84. On 7 December 2009 the investigators again questioned Isa Aygumov’s wife Ms Z.B., whose statement about the circumstances of the abduction was similar to the one given by the first applicant. 85. The investigation failed to establish the whereabouts of Isa Aygumov. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of federal servicemen in the abduction. The law-enforcement authorities of Chechnya had never arrested or detained Isa Aygumov on criminal or administrative charges and had not carried out a criminal investigation in his respect. No special operations had been carried out in respect of the applicants’ relative. 86. According to the documents submitted by the Government, the investigation was suspended and resumed on several occasions, and has so far failed to identify the perpetrators. In a number of decisions to resume the investigation the supervising prosecutor criticised the progress of the proceedings, and ordered that a number of important investigative steps be taken without delay. 87. Despite a specific request by the Court the Government did not disclose the full contents of criminal case no. 59046, providing only part of the documents running up to 158 pages. The Government did not specify the reasons for their failure to provide the remaining documents. 88. On 4 May 2007 the first applicant complained to the Shali Town Court (“the Town Court”) that the investigation of the criminal case was ineffective. She stated that the investigation had been suspended and resumed on a number of occasions, that she had not been provided with information about its progress, and that in spite of the fact that it had gone on for a long time it had failed to identify the perpetrators of Isa Aygumov’s abduction. The applicant requested the court to order the district prosecutor’s office to conduct a thorough and effective investigation into her son’s disappearance and to provide her with access to the investigation file. 89. On 29 June 2007 the Town Court allowed the applicant’s complaint and ordered the district prosecutor’s office to conduct a thorough and effective investigation of the criminal case and provide the applicant with access to the case file. 90. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).