CASE OF IBRAGIMOV AND OTHERS v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Remainder inadmissible;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicants are: 1) Mr Umtazh Supyanovich Ibragimov, born in 1938; 2) Ms Tamara Saidovna Ibragimova, born in 1953; 3) Ms Zulikhan Umtazhovna Ibragimova, born in 1974; 4) Ms Yakha Umtazhovna Ibragimova, born in 1985; 5) Mr Magomed Umtazhovich Ibragimov, born in 1987; and 6) Ms Ayznat Umtazhovna Ibragimova, born in 1988. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The first and second applicants are the parents of Mr Rizvan Umtazhovich Ibragimov, born in 1977, and of the third, fourth, fifth and sixth applicants. At the material time the Ibragimovs lived at 26 Bezymyannaya Street, Urus-Martan, the Chechen Republic. Their house had burned down, and the family lived in a refurbished cattle shed consisting of two rooms. Since 1999 Rizvan Ibragimov had been working as a construction worker in the town of Malgobek, Ingushetiya. In December 2002 he came to visit his parents in Urus-Martan because he needed to complete some formalities with the military commissariat. 8. On the night of 28 to 29 December 2002 the Ibragimovs were sleeping at home, except for the third and fourth applicants. The first applicant was sleeping in the front room, while the second, fifth and sixth applicants and Rizvan Ibragimov slept in the next room. They were sleeping on the floor because all their furniture had been burned in the fire. 9. At about 2 a.m. a group of five men in camouflage uniforms forcibly entered the house. Three of them were wearing balaclava masks. They did not produce identity papers or any documents to justify their actions and gave no explanations. The applicants assumed that they were federal military or security servicemen because they spoke Russian without accent, their faces as far as the applicants could see had Slavic features and also because of their arrival during curfew hours, which was only possible with the military commander’s permission. 10. Three servicemen walked straight to the back room, and two others stayed in the front room. The first applicant was told to stay still on his bed and a machine gun was pointed at him. One serviceman then announced that it was an “identity papers check”. Another serviceman in the back room pointed at Rizvan Ibragimov and ordered him to get dressed. The first applicant handed a pullover to the serviceman to pass to Rizvan Ibragimov, but the serviceman threw it aside. Rizvan Ibragimov was asked where his identity papers were; when he answered that they were on the windowsill, the servicemen took them, with his driving licence. Two servicemen took Rizvan Ibragimov out to the courtyard. He did not put up any resistance. The second applicant was crying and asking the servicemen who they were and where they were taking her son. The first applicant was also asking them to what authority they belonged and where to make enquiries. The servicemen did not answer but told the first and second applicants to remain inside the building. When the first applicant tried to follow them into the courtyard, one of the servicemen ordered him to stop, threatening to shoot. 11. The first applicant nonetheless followed the servicemen, but one of them squatted down, put a bullet into his gun and told the first applicant that he would shoot. Having realised the seriousness of the threat, the first applicant stopped. 12. More than ten armed men in camouflage uniforms were standing in the courtyard, all of them unmasked but wearing bullet-proof jackets. More military were waiting outside the gates and across the street. 13. Across the street from the applicants’ courtyard there was a bakery which had a lamp above the entrance. One of the military shot the light out. His weapon made no sound, and the applicants concluded that it was equipped with a silencer. The street lamp was also off, but the moonlight enabled the servicemen’s movements to be seen. 14. The first applicant could see that the military were walking down the street in groups of four or five, taking Rizvan Ibragimov with them. The first applicant followed the servicemen until they crossed the bridge over the Martanka River, turned left and then right. They took Kuybysheva Street in the direction of Trudovaya Street. 15. Two armoured personnel carriers (“APCs”) and an Ural vehicle were parked at the corner of Kalanchatskaya Street and Trudovaya Street, 600-700 metres from the applicants’ house. 16. According to written statements by two eyewitnesses about the events of the night of 28 to 29 December 2002, at about 2 a.m. two APCs and one Ural vehicle, all with illegible registration numbers, stopped at the corner of Trudovaya Street, then around forty armed men in camouflage uniforms crossed the bridge, moving away from the town centre, and returned some 20-25 minutes later, bringing back a man who looked like Rizvan Ibragimov. The vehicles then drove away towards the centre of Urus-Martan. 17. The Government submitted that the Prosecutor General’s Office had established that at about 2.20 a.m. on 29 December 2002 unidentified persons armed with machine guns and wearing camouflage uniforms and masks had entered the house at 14, Beregovaya Street, Urus-Martan, the Chechen Republic, and kidnapped Rizvan Ibragimov, and that the latter’s whereabouts had not been established. 18. Since 29 December 2002 the applicants, primarily the first applicant, have been searching for Rizvan Ibragimov. They applied to various official bodies both in person and in writing, trying to find out his whereabouts and what had happened to him, arguing that he must have been detained by some representatives of State agencies, because the armed men had arrived in a large group during curfew hours and had worn uniforms similar to those used by the Russian troops. The applicants retained copies of some of their letters to authorities and the answers, which they submitted to the Court. Their attempts to find out the whereabouts of Rizvan Ibragimov can be summarised as follows. 19. In the morning of 29 December 2002 the first applicant visited the department of interior of the Urus-Martan District (“ROVD”), the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and the local administration. He was told there that they did not know who had detained his son or where he was. While visiting the ROVD, the first applicant filed a written declaration concerning the disappearance of his son and attached a description of the events. 20. On 15 January 2003 the first applicant complained of his son’s disappearance to the Office of the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic. Later his letter was forwarded to the district prosecutor’s office. 21. On 28 January 2003 the district prosecutor’s office opened criminal investigation file no. 34005 into the abduction of Rizvan Ibragimov by unknown armed persons. 22. On 4 February 2003 the first applicant was granted victim status in the criminal proceedings. 23. On 4 February 2003 the first applicant wrote to the prosecutor’s office of the Chechen Republic, the military prosecutor’s office of the Chechen Republic, the local military commander and to the head of the administration of the Chechen Republic, Mr Kadyrov, and asked for their assistance in finding his son. On 7 February 2003 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s letter to the district prosecutor’s office. 24. In March 2003 the district prosecutor’s office informed the first applicant that the investigation had been suspended. 25. On 3 April 2003 the first applicant complained to the prosecutor’s office of the Chechen Republic about inaction by the district prosecutor’s office’s. He requested that all requisite investigative measures be taken to establish Rizvan Ibragimov’s whereabouts. 26. On 4 April 2003 the first applicant asked the district prosecutor’s office for an update on the progress of the investigation. 27. On 5 April 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”). 28. On 9 April 2003 the district prosecutor’s office informed the first applicant of the suspension of the investigation. 29. On 15 April 2003 the district prosecutor’s office replied to the first applicant’s letter of 4 April 2003, reiterating that the investigation had been suspended on 28 March 2003. 30. On 21 April 2003 the unit prosecutor’s office informed the first applicant that there were no grounds to claim involvement of the military in the kidnapping of Rizvan Ibragimov. 31. On 4 May 2003 the first applicant, as part of a group of people whose relatives had disappeared, asked the district prosecutor’s office for assistance in obtaining documents certifying the past involvement or non-involvement of their disappeared relatives in the hostilities in the Chechen Republic. 32. On 12 May 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation in case no. 34005 had been resumed on 6 May 2003. The case was referred to as having been opened on 29 December 2002 and suspended on 29 February 2003 (as opposed to the earlier dates given, 28 January and 28 March 2003). It was acknowledged that the investigation conducted previously had not been comprehensive. 33. On 22 May 2003 the unit prosecutor’s office informed the first applicant that there was no involvement of the military in his son’s kidnapping. 34. On 7 June 2003 the district prosecutor’s office informed the first applicant that the investigation in case no. 34005 had been suspended for failure to identify those responsible. 35. On 18 June 2003 the first applicant sent a letter to the head of the Federal Security Service (“FSB”) alleging the involvement of federal forces, so-called “power structures” (силовые структуры), in the abduction of his son and requesting assistance in establishing his whereabouts. 36. On 30 June 2003 the first applicant wrote to the prosecutor’s office of the Chechen Republic alleging the involvement of the federal “power structures” in the abduction of his son and requesting that the investigation be resumed and measures taken to ensure the security of the applicants. 37. On 15 July 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation had again been resumed, that the investigation conducted previously had not been comprehensive and that instructions had been given as to which investigative steps were to be taken. 38. On 1 August 2003 the first applicant asked the district prosecutor’s office for an update on the progress of the investigation and requested them to transfer the case to a military prosecutor’s office. 39. On 15 August 2003 the Department of the FSB of the Chechen Republic informed the first applicant that they were taking all necessary steps to investigate the circumstances of Rizvan Ibragimov’s disappearance and to establish his whereabouts. It was stated that he had not been arrested by the FSB, that there had been no legal grounds for his arrest and that he was not suspected of any crime. 40. On 15 September 2003 the prosecutor’s office of the Chechen Republic informed the first applicant that the investigation had been resumed on 12 September 2003. 41. On 24 December 2003 the first applicant complained to the prosecutor’s office of the Chechen Republic of inaction by the district prosecutor’s office and requested that the investigation be accelerated. On 13 January 2004 the prosecutor’s office of the Chechen Republic forwarded that request to the district prosecutor’s office and ordered them to consider it on the merits, to intensify the investigation and to provide the first applicant with a detailed written report on the progress in the case. 42. On 15 January 2004 the district prosecutor’s office informed the first applicant that his complaint had been included in the case file and that since 12 October 2003 the investigation had been adjourned as the identities of the perpetrators had not been established. 43. On 18 February 2004 the first applicant requested the district prosecutor’s office to take certain investigative measures. On 23 April 2004 they replied that those measures had already been taken before the first applicant’s request. 44. On 21 June 2004 the first applicant requested the district prosecutor’s office to allow him access to the investigation file. 45. On 4 July 2006 the district prosecutor’s office resumed the investigation. 46. On 11 September 2006 the applicants requested the district prosecutor’s office to update them on the progress of the investigation. 47. On 14 September 2006 the district prosecutor’s office informed the applicants that all requisite measures had been taken to solve the crime and that the investigation had been suspended on 4 August 2006. 48. On 29 December 2002 the first applicant complained of his son’s abduction to the district prosecutor’s office. 49. On 31 December 2002 the district prosecutor’s office forwarded the first applicant’s complaint for a preliminary inquiry to the ROVD. 50. On 28 January 2003 the district prosecutor’s office instituted criminal proceedings related to the disappearance of Rizvan Ibragimov under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 34005. 51. On 4 February 2003 the first applicant was granted victim status. He was questioned on several occasions and submitted that on the night of 29 December 2002 unknown masked men armed with machine guns had entered his house and kidnapped his son. 52. Between 28 March 2003 and 11 September 2004 the investigation in case no. 34005 was suspended three times for failure to identify those responsible and then resumed. In particular, it was resumed on 7 May 2003. The first applicant was informed promptly of all decisions. 53. On 4 February 2003 the district prosecutor’s office questioned the second applicant as a witness. She submitted that at about 2 a.m. on 29 December 2002 armed men in masks had ordered her son to get ready and taken him away. She had not seen any cars or APCs. 54. On 15 April 2003 the prosecutor’s office of the Chechen Republic received a complaint by the first applicant of the district prosecutor’s office’s inaction, which stated that the unknown armed persons had arrived in two APCs, two Ural vehicles and a UAZ vehicle. 55. On 15 May 2003 Ms D., the applicants’ neighbour, questioned as a witness, submitted that at about 3 a.m. on the night of 28 to 29 December 2002 she had seen from her window around forty armed men in camouflage uniforms and masks who were escorting a man whose arms were tied. She had not seen any vehicles. 56. The district prosecutor’s office repeatedly requested information on Rizvan Ibragimov’s abduction from various law-enforcement agencies. On 28 February 2003 the Department of the FSB of the Chechen Republic replied that Rizvan Ibragimov had not been arrested by the FSB and no criminal proceedings against him had been instituted. The military commander of the Urus-Martan District and various branches of the Ministry of Interior of the Chechen Republic submitted that their servicemen had not arrested Rizvan Ibragimov and that the latter had not been kept in any temporary detention facilities. 57. In the course of the investigation the perpetrators were not identified and the hypothesis of involvement of special forces’ servicemen in the crime was not proved. 58. On 11 October 2004 the district prosecutor’s office once again suspended the investigation. 59. On 4 July 2006 the district prosecutor’s office quashed the decision of 11 October 2004 and resumed the investigation due to the need to verify some newly-established facts. The proceedings were being supervised by the Prosecutor General’s Office. 60. On 5 July 2006 the district prosecutor’s office questioned the third, fifth and sixth applicants. They submitted that on the night of 28 to 29 December 2002 they had seen five armed men in camouflage uniforms and masks who had taken their brother away. They had not heard any APCs. 61. On 5 July 2006 the district prosecutor’s office dismissed the applicants’ request to institute criminal proceedings in relation to the events of 29 December 2002 under Article 139 § 2 (unlawful violent intrusion into one’s dwelling) for expiry of the statutory limitation period. 62. On 7 July 2006 the local administration of Urus-Martan informed the district prosecutor’s office that there had never been any street named “Beregovaya” in the town of Urus-Martan and that the first applicant resided at 26 Bezymyannaya Street . 63. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34005, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of several notifications to the relatives of the suspension and resumption of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in criminal proceedings. 64. On 27 June or July 2004 (the exact date was disputed between the parties) the first applicant brought proceedings before the Urus-Martan Town Court (“the town court”) challenging the failure on the part of the district prosecutor’s office to carry out the investigation and requested that the investigative measures be carried out and that he be allowed access to the investigation file. 65. According to the Government, on 19 August 2004 a lawyer lodged on the first applicant’s behalf a similar complaint with the town court. 66. On 27 September 2004 the town court found that the investigation had already been resumed on 11 September 2004 and dismissed the first applicant’s complaint of the district prosecutor’s office’s inactivity. As for the alleged lack of access to the case file, the town court found that the right to have access to the materials of a criminal case file did not arise before the completion of the investigation. 67. On 8 October 2004 the first applicant appealed to the Supreme Court of the Chechen Republic, which upheld the town court’s judgment on 3 November 2004. 68. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.