CASE OF MAKHARBIYEVA 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;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicants are: 1) Ms Zura Makharbiyeva, born in 1951, 2) Mr Khamid Makharbiyev, born in 1943, 3) Ms Olga Grigoryeva, born in 1980, 4) Mr Movsar Makharbiyev, born in 1999, and 5) Ms Malika Makharbiyeva, born in 2001. The first and second applicants live in Grozny; the other applicants live in Gekhi in Urus-Martan district, Chechnya. The first and the second applicants are the parents of Adam Makharbiyev, who was born in 1973; the third applicant is his wife, and the fourth and the fifth applicants are his children. 6. At the material time the Urus-Martan district and the town of Grozny were under the full control of the Russian federal forces. Military checkpoints manned by Russian servicemen were located on all roads leading to and from the area, which was under a strict curfew. A checkpoint manned by policemen from the Special Task Unit of the Yaroslavl region (“the OMON”) was located on the road between the town of Urus-Martan and the village of Gekhi. The applicants and Adam Makharbiyev lived in Gekhi, in Urus-Martan district. In March 2001 Adam Makharbiyev was trying to get a job at the Zavodskoy district department of the interior (the Zavodskoy ROVD) in Grozny. 7. In the afternoon of 24 March 2001, on his way from Grozny to Gekhi, Adam Makharbiyev stopped at his cousins’ house in Chernorechye village on the outskirts of Grozny. On the same evening he drove back to Gekhi with his cousins, Mr I.M. and Mr L.M., in the latter’s black VAZ-2106 car. At the time Mr L.M. was a police officer at the Oktyabrskiy ROVD in Grozny. On their way Adam Makharbiyev, Mr I.M. and Mr L.M. passed through a number of checkpoints; Mr L.M. showed his police identity card and the car was allowed to pass through. The road to Gekhi went through the checkpoint manned by the OMON from the Yaroslavl region; the servicemen had previously seen Mr L.M. crossing the roadblock on a regular basis and knew that he was a police officer. 8. At about 5 p.m. the car with the three men was stopped for yet another identity check at the checkpoint manned by the OMON from Yaroslavl. The servicemen looked at the police identity card provided by Mr L.M. and asked for the passports of Adam Makharbiyev and Mr I.M. After the two men had produced their documents the servicemen surrounded them, blocked the passage through the checkpoint, handcuffed all three men and dragged Adam Makharbiyev inside the checkpoint building, while Mr I.M. and Mr L.M. remained outside. The servicemen also took away Mr L.M.’s service gun. Immediately after this the servicemen called someone on a portable radio and requested that representatives of the military commander’s office come to the checkpoint. 9. The detention of Adam Makharbiyev and his cousins was witnessed by two residents of Gekhi who happened to cross the checkpoint at the same time as the detained men. One of them went to the applicants’ house straight away and informed them about the incident. The first and second applicants immediately got into their car and drove to the checkpoint. 10. About fifteen minutes after the servicemen had called for representatives of the military commander’s office to attend, an armoured URAL lorry, two black VAZ-2109 cars with military registration numbers of the ‘11’ region and a white VAZ-2121 (‘Нива’) car arrived at the checkpoint. Adam Makharbiyev was forced into one of the VAZ-2109 cars; Mr I.M. and Mr L.M. were placed in the URAL lorry; black sacks were put over their heads. Mr L.M.’s black VAZ-2106 car was driven away by one of the abductors, who was in military uniform. 11. When the vehicles with the detained men were leaving the checkpoint, the first and second applicants pulled up at the scene. They followed the convoy of military cars, which went to the centre of UrusMartan. The applicants’ car was stopped at a checkpoint located on the bridge, in the vicinity of the town administration and the military commander’s office. The first applicant got out of the car and ran after the convoy, which drove into the yard of the Urus-Martan district military commander’s office (“the district military commander’s office”). The soldiers on duty stopped the first applicant from entering the building. Several minutes later the second applicant also arrived at the military commander’s office. The applicants asked the soldiers to let them speak with the district military commander. The servicemen refused and demanded that the applicants leave the premises, as curfew was just starting. 12. After the arrival at the district military commander’s office, Mr I.M. and Mr L.M. were taken to the third floor, where they were questioned for about two or three hours about involvement in the activities of illegal armed groups. Throughout the questioning they had sacks on their heads and were subjected to beatings. 13. After the questioning Mr L.M. was taken outside and placed in an UAZ minivan (‘Таблетка’). He recognised the model of the car by its engine sound and layout. His brother, Mr I.M., was also put into the vehicle which took them to the building of the Urus-Martan temporary district department of the interior (“the Urus-Martan VOVD”) located only a few hundred metres from the military commander’s office. 14. In the VOVD Mr L.M. was taken to an investigator’s office and the sack was removed from his head. Mr L.M. asked about his brother, Mr I.M., and his cousin, Adam Makharbiyev. The investigator told him that he and his brother had been brought over from the military commander’s office and that he did not know the whereabouts of Adam Makharbiyev. After that Mr L.M. and Mr I.M. were taken to a cell in which there were two other detainees. 15. On the following morning, 25 March 2001, the head of the Oktyabrskiy ROVD arrived in Urus-Martan and spoke with the head of the VOVD. As a result, Mr L.M. was released on the same day; during his release the VOVD officers mistakenly gave him Adam Makharbiyev’s official registration card. Mr I.M. was released a day later, on 26 March 2001. About eight days later Mr L.M. picked up his VAZ-2106 car, which had been taken away by the abductors, from the district military commander’s office. 16. On 27 March 2001 the first applicant managed to meet the district military commander, General G., and asked him whether his servicemen had taken away her son. He responded: “Yes, there is a detainee named Makharbiyev. We will question him and then release him.” A few days later the first applicant again spoke to the General and asked about her son. The latter told her that Adam Makharbiyev had absconded, taking a pistol from the district military commander’s office. 17. On an unspecified date in 2002 the first applicant lodged a claim with the Urus-Martan Town Court, requesting that Adam Makharbiyev be declared a missing person. On 22 March 2002 the court granted her claim and declared Adam Makharbiyev a missing person from 24 March 2001. 18. In support of their application the applicants submitted the following documents: a statement by the first applicant dated 22 April 2008; a statement by the second applicant dated 21 April 2008; a statement by Mr L.M. dated 16 April 2008, and copies of letters received from the authorities. 19. The Government neither challenged the version of events presented by the applicants nor provided their own version of the events. 20. On 25 March 2001 the applicants complained to the VOVD about the abduction of Adam Makharbiyev. They did not retain a copy of this complaint. 21. On 28 March 2001 the first applicant again complained to the VOVD about her son’s abduction. She stated that her son and his two cousins had been abducted by Russian military servicemen at the checkpoint located on the road between Urus-Martan and Gekhi, and that some time later Adam Makharbiyev’s cousins had been released, but he had remained in detention. She stressed that she could provide the authorities with a detailed description of the abductors’ vehicles and the names of witnesses to the abduction, and stated that at some point after the abduction her son had been taken to the Urus-Martan district department of the Federal Security Service (“the FSB”). 22. On 30 March 2001 the second applicant wrote to the Urus-Martan district prosecutor’s office (the district prosecutor’s office) about his son’s abduction, and on 4 April 2001 to the district military commander, General G. He stated that at about 5 p.m. on 24 March 2001 his son had been abducted by Russian military servicemen at the checkpoint located on the road between Urus-Martan and Gekhi. The applicant further provided a detailed description of the vehicles involved in the abduction and stated that there were witnesses to the events who could provide statements to the authorities. He stated that he had learnt that at some point after the abduction his son had been detained in the Urus-Martan FSB, and stated that his attempts to establish the whereabouts of his son by lodging complaints with the VOVD, the ROVD, the FSB and the local administration had been futile. 23. On 14 April 2001 the district prosecutor’s office instituted an investigation into the abduction of Adam Makharbiyev under Article 126 of the Criminal Code (kidnapping). The case file was given the number 25042. The applicants were informed of this on 12 July 2001. 24. On 8 June 2001 the second applicant again complained to the district prosecutor about his son’s abduction at the checkpoint. He stated, amongst other things, that his two relatives, who had been abducted with his son, had later been released from the VOVD and that one of them had been given Adam Makharbiyev’s registration card by mistake. The applicant further stated that he had applied to various authorities with numerous requests for an investigation to be initiated into his son’s abduction by the OMON officers who had been manning the checkpoint on 24 March 2001 and for them to be questioned about his son’s whereabouts. Finally, the applicant complained of a lack of information from the district prosecutor’s office and asked to be provided with an update. 25. On 18 June 2001 the second applicant wrote to the Chechnya prosecutor and the Russian Prosecutor General. He stated that his son and two of his cousins had been detained by Russian federal servicemen at a military checkpoint; that his cousins had been released later on from the VOVD and that one of them had mistakenly been given his son’s documents during the release. He further stated that his numerous complaints to various authorities had not produced any results and that the investigation of his son’s abduction had been ineffective. In particular, he pointed out that the investigators had failed to question the OMON officers who had been manning the checkpoint and taken away his son and that in spite of numerous witness statements the investigators had failed to establish the circumstances of his subsequent detention in the military prosecutor’s office and the VOVD. According to the applicant, with this information and evidence at hand the investigators could have solved the crime and established his son’s whereabouts shortly after the abduction and that such procrastination in the investigation demonstrated their lack of desire to identify and prosecute the perpetrators. The applicant requested that the authorities establish his son’s whereabouts, inform him of any charges pending against his son and identify the culprits. 26. On three occasions between July and August 2001 the district prosecutor’s office informed the applicants about the opening of criminal case no. 25042. 27. On 11 September 2001 the second applicant requested that the investigators grant him victim status in the criminal case. No response was made to this request. 28. On 20 September 2001 the second applicant again complained to the district prosecutor and challenged the investigator in the criminal case. The applicant stated that the investigator had failed to summon and question both the OMON officers who had been manning the checkpoint and the witnesses to the abduction; that the investigator had failed to include in the investigation file the witness statements given by him and the first applicant to the authorities; that during a conversation with the first applicant the investigator had told her: “it is not my fault that your son got killed”. The applicant requested that due to this statement demonstrating the investigator’s awareness of Adam Makharbiyev’s possible fate, the investigator should be held responsible for covering up his son’s murder. 29. On 16 February 2002 the district prosecutor’s office informed the applicants that they had suspended the investigation in the criminal case for failure to identify the perpetrators. 30. On 18 May 2002 the second applicant again complained to the district military commander about his son’s abduction by military servicemen and requested assistance in the search for his whereabouts. 31. On 21 May 2002 the first applicant complained to a number of local authorities, including the head of the ROVD and the district military commander, about her son’s abduction by military servicemen and requested assistance in the search for him. She pointed out that immediately after the abduction her son had been taken to the district military commander’s office and that the military commander had promised to release him after a check and that a day later the officer had told her that her son had absconded with a gun. 32. On 14 June 2002 the first applicant again complained about the abduction to the Prosecutor General. She stated that her son had been abducted by servicemen at the military checkpoint when he had been driving with his two cousins in a black VAZ-2106 car from Grozny to Gekhi; that after the abduction her son and his relatives had been taken to the district military commander’s office and that she and the second applicant had witnessed the abduction. She further provided a description of the abductors’ vehicles and pointed out that Mr L.M. and Mr I.M. had been released a few days after the abduction, and that about a week later Mr L.M. had returned his car, which had been taken away by the abductors; that during the release from detention Mr L.M. had mistakenly been given Adam Makharbiyev’s registration card; that the district military commander had promised to her that her son would be released, and that on the fourth day after the abduction the officer had told her that Adam had absconded from the military commander’s office with a gun. The applicant further complained that the investigation had had all the necessary information to identify the perpetrators, but that in spite of that they had failed to take even basic steps. In her opinion, the investigators were trying to cover up her son’s abduction by military servicemen. Finally, she requested that the Prosecutor General assist her in her search for Adam Makharbiyev. 33. On 1 July 2002 the first applicant complained to a number of State authorities, including the head of the Chechnya FSB, the Russian Defence Minister and the district prosecutor. She provided a detailed description of her son’s abduction by federal servicemen and his subsequent detention in the military commander’s office and the VOVD, and complained that the investigation had failed to examine the evidence proving the authorities’ involvement in her son’s abduction. In addition, she stated that on 5 June 2002 her son had been seen in a bus next to Chervlyenaya station in the Shelkovskoy district of Chechnya. According to a woman who had spoken with Adam Makharbiyev, he had told her that FSB officers were taking him in the bus to the Chernokozovo detention centre in Chechnya. According to the witness, Adam looked famished and was very pale. The applicant requested that the authorities establish her son’s whereabouts and release him from detention. 34. On five occasions between July 2001 and August 2002 the Chechnya prosecutor’s office forwarded the applicants’ complaints to the district prosecutor’s office. 35. On two occasions between August 2001 and August 2002 the Prosecutor General’s office informed the applicants that they had forwarded their complaints to the Chechnya prosecutor’s office. 36. On 30 July 2002 the first applicant again complained about her son’s abduction by federal servicemen to the district prosecutor’s office and requested to be granted victim status in the criminal case. On 9 August 2002 she was granted victim status in the case. 37. On 24 September 2002 the military prosecutor’s office of the North Caucasus Military Circuit informed the first applicant that they had forwarded her complaint about the abduction to the military prosecutor’s office of military unit no. 20102 in Khankala, Chechnya. 38. On 30 September 2002 the first applicant requested an update from the investigators on the investigation in the criminal case. 39. On 16 November 2002 the Chechnya prosecutor’s office informed the first applicant that according to their information received from the Chernokozovo detention centre Adam Makharbiyev had never been detained on their premises. 40. On 5 March 2003 the first applicant again complained to the district military commander. She stated that her son and his two cousins had been abducted by servicemen from a military checkpoint on the way from Grozny to Gekhi; that after the abduction the men had been taken to the district military commander’s office, and that she and the second applicant had witnessed the events. She further provided a description of the abductors’ vehicles and pointed out that Mr L.M. and Mr I.M. had been released a few days after the abduction and that about a week later Mr L.M. had returned his car which had been taken away by the abductors; that when being released from detention Mr L.M. had mistakenly been given Adam Makharbiyev’s registration card; that the district military commander had promised her that her son would be released, and that on the fourth day after the abduction the officer had told her that Adam had absconded with a gun from the military commander’s office. The applicant further complained that the investigation into the abduction had been ineffective, and requested assistance in her search for her son. 41. On 16 July 2003 the first applicant complained to the Military Prosecutor of the United Group Alignment (the UGA). She provided a detailed description of her son’s abduction by federal servicemen, his subsequent detention in the military commander’s office and the VOVD and complained that the investigation had failed to examine the evidence proving the authorities’ involvement in her son’s abduction. She stated that on 5 June 2002 her son had been seen in a bus next to Chervlyenaya station in the Shelkovskoy district of Chechnya. According to the woman who had spoken with Adam Makharbiyev, he had told her that the FSB officers were taking him in the bus to the Chernokozovo detention centre in Chechnya. The applicant requested that the authorities establish her son’s whereabouts and release him from detention. 42. Between July 2003 and February 2006 the applicants were not provided with any information concerning the investigation of the abduction. 43. On 21 February 2006 the first applicant wrote to the district prosecutor and complained that the investigation of her son’s abduction was ineffective. She requested an update on its progress and asked for the proceedings to the resumed. No reply was given by the authorities. 44. On 31 March 2001 the district prosecutor, on a complaint by the second applicant, requested that the head of the Urus-Martan FSB and the district military commander inform him whether they had detained Adam Makharbiyev and if so, where he had been taken afterwards. 45. On 14 April 2001 the investigators opened criminal case no. 25042 in connection with “... the detention of Adam Makharbiyev at the checkpoint located between Gekhi and Urus-Martan on 24 March 2001 and his subsequent removal in the direction of Urus-Martan ...” 46. On 17 April 2001 the ROVD officially registered the second applicant’s complaint about the abduction. 47. On an unspecified date in April 2001 the investigators questioned the first applicant, who provided a detailed description of her son’s abduction by servicemen at the military checkpoint and his subsequent removal to the military commander’s office. 48. On an unspecified date in April 2001 the investigators questioned the second applicant, whose statement about the circumstances of the abduction was similar to that made by the first applicant. In addition, he stated that a few days after the abduction he and his brother (the father of Mr L.M. and Mr I.M.) had spoken with the head of the administration, Mr Sh.Ya., who had told them that on 24 March 2001 their sons had been taken away from the checkpoint by servicemen of the Yaroslavl OMON and that later on Mr L.M. and Mr I.M. had been transferred to the VOVD, whereas Adam Makhashev had allegedly absconded from the military commander’s office. 49. On 7 June 2001 the investigators questioned the third applicant, who stated that in the evening of 24 March 2001 she had learnt about her husband’s abduction at the checkpoint, from a man who had arrived at her house. 50. On an unspecified date in 2001 the investigation in the criminal case was suspended for failure to identify the perpetrators. 51. On 24 June 2002 the investigators resumed the investigation in the criminal case. The text of the decision included the following: “... on 24 March 2001 during the crossing of the checkpoint located on the road between Gekhi and Urus-Martan Mr Adam Makharbiyev, Mr L.M. and Mr I.M. were detained for an identity check; after that the men were taken to the UrusMartan military commander’s office and from there they were transferred to the Urus-Martan VOVD, from where Mr L.M. and Mr I.M. were subsequently released, but the whereabouts of Adam Makhashev have not been known since ...” 52. On 27 June 2002 the investigators again questioned the second applicant, who stated that his son and his two cousins, Mr L.M. and Mr I.M., had been detained at the checkpoint by the OMON servicemen and that subsequently the detainees had been taken to the military commander’s office and that later on during the release Mr L.M. had noticed that he had mistakenly been given Adam Makharbiyev’s registration card. The applicant provided the investigators with a detailed description of the vehicles used to transport the detained men from the checkpoint to the military commander’s office, and pointed out that on the day after the abduction the military commander had confirmed to him that the servicemen had detained his relatives at the checkpoint. 53. On the same date the investigators questioned the second applicant’s brother, Mr R.M., who stated that his sons had been detained at the checkpoint together with Adam Makharbiyev. 54. On the same date the investigators questioned the applicants’ neighbour Mr A.B., who stated that he had heard that Adam Makharbiyev had been taken away from the checkpoint, and provided a positive character reference for him. 55. On 24 July 2002 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. 56. On 9 August 2002 the investigators granted the first applicant victim status in the criminal case but did not question her. 57. On 30 May 2003 the investigators again questioned the second applicant’s brother, Mr R.M., who confirmed his previous statement. 58. On 2 June 2003 the investigators questioned the first applicant, who stated that in June 2001 she had learnt that Mr Akh.I. had been detained with her son Adam Makharbiyev in the Chernokozovo detention centre. She had spoken with him and found out that her son had been detained in cell no. 24 and that the guards had given him the nickname “Stariy” (Old). Mr Akh.I. had identified Adam in the picture shown to him by the applicant. Several months later the applicant had learnt that Mr Akh.I. had been killed. The applicant also provided the investigators with a detailed description of the circumstances under which a woman named Zara had met her son Adam in the bus on his way to the Chernokozovo detention centre. 59. On 3 June 2003 the investigators questioned the head of the administration, Mr Sh.Ya., who stated that he did not remember the circumstances of his conversation with the second applicant (see paragraph 48 above). 60. On 13 June 2003 the investigators questioned the applicants’ relative Mr L.M., who stated that on 24 March 2001 he, his brother Mr I.M. and his cousin Adam Makharbiyev had been detained by servicemen at the checkpoint for an identity check. He and his brother Mr I.M. had been put into an armoured URAL vehicle; he had seen Adam Makharbiyev blindfolded and handcuffed. Adam had remained at the checkpoint and Mr L.M. and Mr I.M. had been driven to Urus-Martan. On the way there the brothers had also been blindfolded. About an hour later the brothers had arrived at the ROVD, where they had been questioned separately about their cousin Adam Makharbiyev. After that they had been put into cells and on the following day questioned about Adam again. A few days later Mr I.M. had been released, and a day later the witness had been released as well. According to the witness, he had collected his car, which had been taken away from him at the checkpoint, from the district military commander’s office. 61. On 16 June 2003 the investigators questioned the applicants’ relative Mr I.M., whose statement about the abduction was similar to the one given by his brother Mr L.M. 62. On 28 June 2003 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. 63. The investigation failed to establish the whereabouts of Adam Makharbiyev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The law-enforcement authorities of Chechnya had never arrested or detained Adam Makharbiyev on criminal or administrative charges, and therefore did not carry out a criminal investigation in his respect. 64. According to the Government, at the Court’s request they furnished the Court with copies of the entire contents of the investigation file in criminal case no. 25042 amounting to 46 pages. 65. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).