CASE OF DZHAMAYEVA AND OTHERS v. RUSSIA
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural 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;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. The applicants are: 1. Ms Salamat Dudayevna Dzhamayeva, born in 1947; 2. Ms Khedisht Issayevna Dzhamayeva, born in 1974; 3. Ms Kheda Issayevna Dzhamayeva, born in 1971; 4. Mr Magomed Ismailovich Dzhamayev, born in 2001. They live in Staryye Atagi, the Chechen Republic. 5. The first applicant is the mother, the second and third applicants are the sisters and the fourth applicant is the son of Mr Ismail Issayevich Dzhamayev, born in 1981. They lived together in the village of Stariye Atagi, the Grozny District. Mr Ismail Dzhamayev was a student of mathematics. 6. According to the applicants, from 6 to 11 March 2002 federal military officers, under the command of General Borisov, conducted a sweeping operation (зачистка) in the village of Stariye Atagi involving around 10,000 servicemen, 50 armoured personnel carriers (“APCs”) and several military helicopters. 7. Throughout the said period the military besieged Stariye Atagi and restricted freedom of movement in the village. They organised a filtering point at the poultry-yard and the mill on the outskirts of Stariye Atagi where they kept the residents detained during the operation. 8. In total fifteen men residing in Stariye Atagi were apprehended between 6 and 11 March 2002. Whilst some of them were subsequently released, eleven residents disappeared. Relatives of ten of those who disappeared applied to the Court (see Arzu Akhmadova and Others v. Russia, no. 13670/03). 9. According to the applicants, Mr Ismail Dzhamayev was apprehended in the following circumstances. In the morning of 6 March 2002 the first applicant asked him to go and see his uncle who lived in the same village and buy something for him in the village shop. When Mr Ismail Dzhamayev was in the street apparently on the way from the shop to his uncle’s house, he saw two APCs approaching. He got frightened, turned around the corner to Bezymyannaya Street and dropped in at Mr B.’s, his acquaintance. Mr B.’s mother let him in. As soon as he entered, servicemen ran into the yard after him. They said that there was a sweeping operation in the village and that they would check the house. They searched the house. After the search they took Mr B. and Mr Ismail Dzhamayev with them. Mr B.’s mother asked them not to take the children away since they had all their documents with them. The servicemen checked the documents and then put Mr B. and Mr Ismail Dzhamayev in an APC. When Mr B.’s mother tried to intervene, however, the servicemen pushed her aside, hit her against the wall and left her lying on the ground. 10. The next day Mr B. was released. He said that after they had been apprehended, the servicemen took them around the village in the APC for approximately two or three hours while they checked other houses. They were thrown on the floor of the APC and the servicemen put their feet on them. Then they were taken to the filtration point. Mr B. said that he had heard Mr Dzhamayev’s voice when the latter had been questioned. They had asked him what he had been doing at B.’s house, and Mr Dzhamayev had explained that he had gone to the shop and had just dropped by. When Mr B. heard that Mr Ismail Dzhamayev had not returned home he was surprised because he had heard nothing during the night and thought that Mr Dzhamayev had been released. 11. Upon his release Mr B. was barely alive because of the beating he had received from the servicemen. He died six months later. 12. On 7 March 2002 the residents of Stariye Atagi found several bodies in an abandoned house in the village. The applicants heard others saying that the people had first been blown up and then burned. It was impossible to identify them. However, somebody said that the bodies of some of the persons apprehended on 6 March 2002 had been seen. 13. The applicants also heard that a car had been burned on 9 March 2002. 14. On 10 March 2002 Mr T. Kh., Mr R. D. and Mr V. D. were apprehended and then held at a mill. They were put in a pit where they saw an inscription on the wall “Maka and Amir were here”. Although Mr Dzhamayev’s name was Ismail, everybody had called him Maka since his childhood. One of the servicemen confirmed that Mr Dzhamayev and Mr Amir Pokayev had been held there and said that they had been released in the afternoon the previous day, 9 March 2002. 15. The applicants concluded that Mr Dzhamayev could not have been one of the persons whose burnt bodies had been found in the burnt house on 7 March 2002 or in the car burnt on 9 March 2002. They alleged that on 9 March 2002, instead of being released, he had been transferred elsewhere. 16. The Government confirmed that a sweeping operation had been conducted in the village of Stariye Atagi from 6 to 13 March 2002. The aim of the operation had been to find and arrest members of illegal armed groups who had abducted and killed four servicemen of the FSB on 12 February 2002. 17. On 7 March 2002, at around 2 p.m., a fight broke out between members of the illegal armed groups and federal servicemen in a house at 81 Nagornaya Street. As a result of the use of small arms and grenade dispensers, four members of the illegal armed group were killed. Since the house was set on fire, bodies were severely burnt; after an inspection by law-enforcement officers they were handed over to the local administration for burial. 18. On 9 March 2002 a group of servicemen of military unit no. 3228 at a checkpoint situated within three kilometres from Stariye Atagi was fired at from a car that approached the checkpoint. The servicemen fired back. The explosives contained in the car were blown up, the car was set on fire and the three members of an illegal armed group in it were killed. Their bodies were also severely burnt and handed over to the local administration for burial. An AKM machine gun without its wooden parts, RGD-5 grenades without fuses, a makeshift hand grenade launcher, and other components of AKM machine guns and cartridge cases were found in the car and seized. 19. After the operation had been completed, village residents lodged applications concerning the apprehension and subsequent disappearance of eleven residents of Stariye Atagi, including Mr Ismail Dzhamayev. 20. On 13 March 2002, after the special operation was over and the restrictions were lifted, the villagers brought all the unidentified corpses to Grozny. It appears that they did not manage to contact the authorities, and later that day they returned the bodies to Stariye Atagi. 21. On 14 or 15 March 2002 officers of the Grozny district office of the Interior (РОВД Грозненского района) took the corpses to the village of Tolstoy-Yurt intending to send them on to Mozdok for a forensic examination. 22. On 1 April 2002 D., an investigator from the Prosecutor’s Office of the Chechen Republic, delivered the bodies back to Stariye Atagi. The corpses were wrapped in bags and were decomposed. They remained unidentified. D. explained to the villagers that the prosecutor’s office had insufficient funds to conduct the forensic examination of the corpses and that the refrigerators in the forensic examination department in which they had been kept had been out of order. 23. On 3 April 2002 the residents of Stariye Atagi buried the unidentified bodies. 24. Immediately after Mr Ismail Dzhamayev had been apprehended, the applicants started searching for him. They lodged numerous applications with prosecutors of various levels, public bodies and regional administrative authorities. They also visited a number of State bodies. The applicants mainly received formal responses informing them that their requests had been forwarded to various prosecutor’s offices for examination. 25. On 13 March 2002 the Prosecutor’s Office of the Grozny District (прокуратура Грозненского района) instituted a criminal investigation under Article 105 § 2 (a) of the Criminal Code of Russia (murder of two or more persons) in respect of the disappearance of 13 residents of Stariye Atagi, including Mr Ismail Dzhamayev, between 6 and 11 March 2002. The file was assigned no. 56031. 26. According to the applicants, on an unspecified date Mr B. and his mother were questioned. The second applicant went for questioning together with them and the relevant records should be in the criminal file. 27. According to the Government, on unspecified dates two of the applicants were granted victim status in the proceedings. 28. On 5 April 2002 the local administration of Stariye Atagi (местная администрация села Старые Атаги) issued the applicants with a certificate confirming that Mr Ismail Dzhamayev and nine other residents of Stariye Atagi had been apprehended and taken away by federal military officers between 6 and 11 March 2002 and had then disappeared. The certificate was signed by the acting head of administration of Stariye Atagi and bore an official stamp of the administration. It read, in so far as relevant, as follows: “[The present] certificate is issued by the local administration of the village Stariye Atagi in respect of written applications by the village’s residents, whose children were apprehended and taken for passport check in the period between 6 and 10 March 2002 during the special operation conducted by the federal troops. The local administration thereby confirms that: 1. The following residents of Stariye Atagi were apprehended by the federal troops and taken to an unknown destination: on 6 March 2002 ... Dzhamayev Ismail Issayevich, born in 1981 ... 2. On 13 March 2002 the Grozny Military Prosecutor’s Office instituted criminal proceedings no. 56031 in respect of the disappearance of the above-named persons following their relatives’ applications; the investigation is under way. 3. A governmental commission headed by the deputy chairman of the Government of the Chechen Republic, Magomadov Nasrudin Nozhayevich, was created (by governmental decree no. 188-rp of 13 March 2002) [to investigate] the events.”. 29. On 11 March 2004 the Ministry of the Interior informed the first applicant that, since so far the investigation had failed to establish her son’s fate, the Southern Federal District Office of the Interior was engaged in the search for him. 30. On 17 June 2004 a report of a forensic molecular-genetic expert examination was drawn up according to which Mr Ismail Dzhamayev’s body was among the remains of six bodies found at the cemetery. 31. On 26 March 2007 the investigation was discontinued on account of the absence of any indication of a crime allegedly committed by servicemen. 32. In their submissions the parties referred to the information provided in relation to the above case. The Court shall set out below the facts relevant to the present case. 33. On 7 April 2002 the Prosecutor’s Office of the Chechen Republic answered a request received from Memorial, stating that on 13 March 2002 a criminal investigation had been instituted under Article 105 § 2 (a) of the Russian Criminal Code into the disappearance of 13 residents of Stariye Atagi, including Mr Ismail Dzhamayev, between 6 and 11 March 2002. The letter also stated that: “On 9 March 2002, at around 3 p.m., a VAZ 21099 vehicle approached a checkpoint of military unit 3179 situated about 4 km away from the outskirts of Stariye Atagi on the road between Chechen-Aul and Stariye Atagi. In response to [the servicemen’s] order to stop the car and produce identity papers, shots were fired from the car. During the shoot-out four passengers were killed and the car was burnt. During the examination of the vehicle the remains of a AKM machine gun, a hand grenade launcher and RGD-5 grenades without fuses were found and seized. In this connection, on 12 March 2002 the Prosecutor’s Office of the Grozny District initiated criminal proceedings in case no. 56030 under Article 317 of the Russian Criminal Code. The identities of the persons killed in the car have not yet been established.” 34. On 21 August 2002 the military prosecutor of military unit no. 20102 informed the applicants that their allegations that Mr Ismail Dzhamayev and other residents of Stariye Atagi had disappeared during the sweeping operation had been investigated and that criminal proceedings in criminal cases nos. 14/33/0184-02 and 14/33/0185-02 had been instituted in connection with the combats between the servicemen and the members of the illegal armed groups and as regards the discovery of four bodies bearing signs of a violent death in a burnt car on the road from Chechen-Aul to Stariye Atagi. The letter continued as follows: “The preliminary investigation established that on 9 March 2002, during the special operation in the village of Stariye Atagi, the servicemen of military unit no. 3228 under the command of Senior Lieutenant Z. were checking vehicles going out of the village of Stariye Atagi, since, in accordance with intelligence received, members of illegal armed groups stationed in Stariye Atagi were planning an attack on this road. At around 3 p.m. a VAZ 21099 car approached the servicemen of military unit no. 3228 under the command of Z. In reply to the servicemen’s order to stop, machine-gun fire was opened from the car. The servicemen opened return fire with the result that the car started burning. Subsequently three burnt corpses of unidentified persons were found in it. On 18 May 2002 the criminal proceedings brought in connection with the servicemen’s use of firearms were discontinued... Accordingly, no involvement on the part of the servicemen in the abduction of [the applicants’ relatives] has ever been established ...” 35. On 9 October 2002 the Prosecutor’s Office of the Grozny District sent the case file to the military prosecutor of military unit no. 20102 for investigation. The case file was given the number 34/33/0657-02. 36. On 26 October 2002 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to establish the identity of the culprits. The decision read, in particular: “During the period from 6 to 10 March 2002, in the course of a special operation in the village of Stariye Atagi, unidentified servicemen abducted thirteen residents of the village: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, [V. D.], [R. D.], N. Zakayev. Upon the completion of the operation on 13 March 2002 [V. D.] and [R. D.] were released. The whereabouts of the other residents of Stariye Atagi who were apprehended has not been established... In the course of the investigative actions ... person(s) who had committed the offence were not identified...” 37. The applicants and relatives of other disappeared persons were notified of the decision to suspend the investigation. 38. On 14 December 2002 the Military Prosecutor’s Office of the United Group Alignment (UGA) quashed the decision to suspend the investigation for the following reasons: “The decision was unfounded since in the course of the preliminary investigation not all the investigative measures aimed at identifying persons involved in the disappearance of the named residents of Stariye Atagi were taken. [In particular,] the military units that had conducted the special operation in the village were not identified, the commanders of these units were not questioned, the persons who had conducted a check and apprehended the [disappeared residents] were not identified. Therefore, the preliminary investigation should be reopened.” 39. On 23 December 2002 the case was taken up again by the military prosecutor of military unit no. 20102. Relatives of the disappeared persons were notified of the reopening of the investigation. 40. On 23 January 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision to suspend the investigation. 41. By letter of 18 March 2003 the military prosecutor of military unit no. 20102 replied to a query lodged by the SRJI on the applicants’ behalf and stated that in the file of criminal case no. 56031 opened in relation to the abduction of Mr Ismail Dzhamayev and other persons there was no indication that the federal servicemen had been involved in the alleged offence. 42. On 2 April 2003 the military prosecutor of military unit no. 20102 notified the SRJI that the case file of the investigation instituted in connection with the disappearance of Mr Ismail Dzhamayev and other persons had been returned to the Prosecutor’s Office of the Chechen Republic, as the military prosecutor had no competence over the case in the absence of evidence of the military personnel’s involvement in the alleged offence. 43. On 26 June 2003 the military prosecutor of military unit no. 20102 quashed the decision of 23 January 2003 and reopened the investigation. Relatives of the disappeared persons were notified of the reopening. 44. On 27 July 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision. 45. On 7 August 2003 the SRJI applied to the Military Prosecutor’s Office of the UGA requesting, inter alia, exhumation of the remains of the unidentified bodies buried by the residents of Stariye Atagi in a common grave and a forensic examination with a view to their identification. 46. On 29 October 2003 the Military Prosecutor’s Office of the UGA quashed the decision of 27 July 2003 to suspend the investigation on the ground that the whereabouts of unspecified witnesses had been established which required further investigative actions. Relatives of the disappeared persons were notified of the reopening. 47. On 19 March 2004 the Military Prosecutor’s Office of the UGA suspended the investigation. The decision read, in particular: “During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group and the search for four servicemen of the FSB who had gone missing. ... During the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted [the following] residents of Stariye Atagi: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev. Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].” 48. Relatives of the disappeared persons were notified of the decision to suspend the investigation. 49. On 22 May 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly. 50. On 22 June 2004 the Military Prosecutor’s Office of the UGA again suspended the investigation. The decision read, in so far as relevant: “During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group and the search for four servicemen of the FSB who had gone missing. ... At around 4 p.m. on 9 March 2002 in Stariye Atagi servicemen of military unit 3179 killed three members of the illegal armed group who were in a car. [Their] bodies were severely damaged and burnt. No measures were taken to identify them. At the same time, according to applications and statements by residents of Stariye Atagi, during the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev. In the course of the investigation the bodies of the members of the illegal armed groups buried in the cemetery of Stariye Atagi were exhumed and body tissue taken from them; blood samples were taken from relatives of the abducted persons. According to the medical opinion no. 52/2004, the forensic (molecular-genetic) expert examination showed that the remains found at the cemetery were those of I. A. Chagayev, A. Sh. Pokayev, S.-S. Kanayev, I. Dzhamayev, A. P. Akhmadov and I. S. Magomadov... Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].” 51. On 6 November 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly. 52. On 6 December 2004 the Military Prosecutor’s Office of the UGA suspended the investigation again. Relatives of the disappeared persons were notified of the decision. 53. On 10 January 2006 the Military Prosecutor’s Office of the UGA quashed the decision of 6 December 2004 and reopened the investigation on the following grounds: “In the course of the investigation significant discrepancies between statements by residents of Stariye Atagi and servicemen concerning the detention of the [disappeared] persons and their possible death as a result of the fighting on 7 and 9 March 2002 ... were not resolved. Witness statements in this regard were not duly verified and recorded. The investigating authorities did not take comprehensive measures in order to establish the specific places where the bodies of A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev, and I. S. Magomadov, who, according to their relatives, had been apprehended together with the other residents of the village, had been found. Up until now the whereabouts and the fate of other residents of Stariye Atagi who have been missing since the operation was conducted in March 2002 have not been established. In such circumstances the decision to suspend the preliminary investigation should be quashed and the investigation resumed.” 54. On 9 September 2006 the Military Prosecutor’s Office of the UGA ordered another forensic molecular-genetic expert examination aimed at establishing the fate of several other disappeared persons. The order contained the following passage: “...In the course of the operation a house situated in Nagornaya Street was shelled and blown up, a red VAZ 21099 car with members of an illegal armed group in it was burned and crushed by an APC. ...” Despite specific requests made by the Court to submit a copy of the file in criminal case no. 56031 (at present no. 34/00/0014-03), the Government did not provide any documents from the case file. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of documents of a confidential nature and without the right to make copies. 55. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 56. Article 125 of the new CCP lays down a judicial procedure for the consideration of complaints. Orders of an investigator or prosecutor refusing to institute criminal proceedings or to terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice may be appealed against to a local district court, which is empowered to check the lawfulness and grounds of the impugned decisions. 57. Article 161 of the new CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation. Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited. 58. Federal Law no. 130-FZ of 25 July 1998 on the Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows: “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities; ‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...” “1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled: ... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification; (3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation; (4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health; (5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...” “...2. Information that cannot be released to the public includes: (1) information disclosing the special methods, techniques and tactics of an anti-terrorist operation; ... (4) information on members of special units, officers of the operational centre managing an anti-terrorist operation and persons assisting in carrying out such operation. In accordance with the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 59. Federal Law no. 1026-1 of 18 April 1991 on the Police governs various aspects of the police service. 60. Presidential Decree no. 1255c of 23 September 1999 on Measures Enhancing the Efficiency of Counter-Terrorist Operations in the Territory of the North Caucasia Region provides for the creation of the UGA and contains general provisions concerning its structure and operation. It also provides for additional measures to be taken by local authorities and the FSB to maintain public order and security in the region.