CASE OF NASUKHANOVY v. RUSSIA
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The first applicant was born in 1953, the second applicant was born in 1958 and the third applicant was born in 1983. They live in the village of Starye Atagi, the Groznenskiy District, in the Chechen Republic. 6. The first and second applicants are spouses and the parents of Mr Movsar Nasukhanov, born in 1980, Mr Movladi Nasukhanov, born in 1981, and the third applicant. 7. Between 14 and 18 February 2002 the Russian federal military carried out a special “sweeping” operation in the village of Starye Atagi. 8. At about 9.30 a.m. on 14 February 2002 an armed clash commenced between a group of insurgents and the Russian servicemen. The insurgents hid inside a house at Argunskaya Street located in the vicinity of the applicants' family home and fired at the military. At some point Russian servicemen killed the insurgents and started checking other houses in the area. 9. At that time the applicants, Movsar and Movladi Nasukhanov and the first applicant's two daughters were inside their house. At some point a group of servicemen wearing blue camouflage uniforms and masks arrived at the applicants' house in armoured personnel carriers (“APCs”) and entered it. The first applicant believed that the men belonged to the State Intelligence Department (“GRU”). The servicemen in blue uniforms checked the Nasukhanovs' identity papers, asked why they had been hiding insurgents and left. 10. Another group of armed men who had arrived in UAZ vehicles entered the applicants' house. Those men had badges with a “B” letter and an eagle pinned to sleeves of their camouflage uniforms. The first applicant inferred that they were members of the Pennant unit (подразделение «Вымпел»). They ordered the male members of the Nasukhanov family to lie down on the floor, lined up the women next to a wall, checked the identity papers and left. 11. A few moments later a group of armed and masked men in yellow camouflage uniforms arrived at the applicants' house in UAZ vehicles with illegible registration plates. The first applicant peeked out of the window and saw a motorcade of military vehicles and several APCs parked outside his house. The servicemen in the yellow uniforms checked the identity papers of the first applicant's sons and asked them if they knew any insurgents. The young men replied in the negative. The servicemen in yellow uniforms said that it was necessary to run a check on them, and took the third applicant and Movsar and Movladi Nasukhanov away. 12. Shortly after the arrest of their sons the first and second applicants learned that the Russian military had established a filtration point near a poultry-house and a mill in Starye Atagi. Some 500 persons were being kept at the filtration point. 13. On the day following the arrest the second applicant went to the poultry-house. Relatives of other detained persons had gathered near the building to wait for news of their family members. 14. The servicemen started releasing the detainees. Some of them told the second applicant that her three sons were being kept inside the poultryhouse. The second applicant waited for her sons' release for the next three days. 15. On 16 February 2002 the third applicant was released. He had been severely beaten by the servicemen and could not walk, so he had to be carried home. His body was bruised. Once at home, the third applicant said that for three days the servicemen had questioned and beaten him. Before the release they had made him sign a declaration stating that he had no complaints. The third applicant had not seen his brothers after the arrest but knew that they had been transferred to the mill where the headquarters of the federal military was located. 16. On 19 February 2002 the special “sweeping” operation ended. 17. On 20 February 2002 the first and second applicants went to the village of Mesker-Yurt of the Shali District and examined two dead bodies, which had been burned from head to waist. The first and second applicants recognised their sons' shoes and trousers and identified the dead as Movsar and Movladi Nasukhanov. On the same day the first and second applicants took the bodies home. 18. On 18 February 2002 the Shali district temporary department of the interior (“the VOVD”) received a report that four men had been killed by servicemen of military unit no. 3179 in crossfire on the outskirts of MeskerYurt. Upon inspection of the scene of the incident four charred corpses and two AK-74 machine guns were discovered in the basement of a destroyed house. 19. The first applicant did not apply to a prosecutor's office after the discovery of Movsar and Movladi Nasukhanov's dead bodies as he feared for the safety of the third applicant. 20. On 18 February 2002 the Shali district department of the interior (“the ROVD”) received a report that four charred male corpses had been discovered in the basement of a house on the outskirts of Mesker-Yurt. Later two of those bodies were identified as Movsar and Movladi Nasukhanov. 21. On 18 February 2002 the prosecutor's office of the Shali District (“the district prosecutor's office”) instituted an investigation into the killing of Movsar and Movladi Nasukhanov under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case was assigned the number 59054. 22. On 25 February 2003 the district prosecutor's office issued a report on the investigation, stating the following: “At about 1 p.m. on 18 February 2002 the Shali district department of the interior received a report that four charred male corpses had been found in the basement of a residential house on the outskirts of the village of Mesker-Yurt. Later the three bodies were identified as villagers of Starye Atagi, namely, Movsar Nasukhanov, born in 1980, Movladi Nasukhanov, born in 1981, and Ruslan Nasukhanov, born in 1963. An investigation into this matter was opened by the Shali district prosecutor's office in criminal case no. 59054 under Article 105 § 2 of the Russian Criminal Code on 18 February 2002.” 23. On 5 March 2003 the head of the local administration of Starye Atagi described the circumstances of the Nasukhanov brothers' arrest and the discovery of their dead bodies to the district prosecutor's office. He stated that on 14 February 2002 the servicemen of the United Group Alignment had carried out a special operation to arrest insurgents, that the latter had opened fire and then had been killed and that Movsar and Movladi Nasukhanov had been taken away by the servicemen and then killed. The head of the local administration also mentioned that Movsar and Movladi Nasukhanov had not participated in illegal armed groups. 24. On 15 December 2003 the first applicant complained to the prosecutor's office of the Chechen Republic about the ineffectiveness of the investigation in case no. 59054. 25. On 4 January 2004 the prosecutor's office of the Chechen Republic informed the applicants that on an unspecified date the investigation had been resumed and was pending before the district prosecutor's office. 26. On 10 February 2004 the first applicant was summoned to the district prosecutor's office. An investigator told him that the servicemen had made a deposition explaining that his sons had been killed as they had been inside a house from which insurgents had fired at military vehicles. However, according to a statement by the owners of that house, the servicemen had killed the Nasukhanov brothers, brought their bodies to the village's outskirts and set the house on fire. The first applicant read that statement, but was not allowed to make a copy of it. 27. On 15 February 2004 the district prosecutor's office suspended the investigation in case no. 59054 for failure to identify those responsible. 28. On 24 July 2004 the military prosecutor's office of the United Group Alignment forwarded the first applicant's complaint to the prosecutor's office of the Chechen Republic stating that an investigation into the killing of Movsar and Movladi Nasukhanov was not pending before them. 29. On 2 November 2004 the prosecutor's office of the Chechen Republic forwarded the first applicant's complaint to the district prosecutor's office and ordered that the investigation be carried out more vigorously. 30. On 29 April 2005 the acting head of the department for supervision on criminal investigations of the prosecutor's office of the Chechen Republic informed the first applicant of the following: “The prosecutor's office of the Chechen Republic studied the criminal case materials, quashed the decision of the investigator of the Shali district prosecutor's office on suspension [of the investigation] and resumed the investigation. You should address all further queries related to the investigation of this case to the Shali district prosecutor's office”. 31. On 15 February 2006 the SRJI requested an update on the progress of case no. 59054 from the district prosecutor's office. 32. On 3 March 2006 the prosecutor's office of the Chechen Republic informed the first applicant that the investigation in case no. 59054 had been suspended on 15 February 2004 for failure to identify those responsible and noted that the first applicant had the right to study non-classified documents from the case file on the district prosecutor's office's premises. 33. On 16 November 2006 the district prosecutor's office received from the SRJI a request for access to the entire investigation file in case no. 59054. 34. On 17 November 2006 the request was dismissed since pursuant to domestic laws a victim had no right to study a case file in its entirety prior to the completion of the investigation. 35. On 19 June 2009 the applicants were informed that the investigation had been resumed. 36. On 18 February 2002 the district prosecutor's office instituted an investigation in case no. 59054 into the killings of the four men found dead in Mesker-Yurt under Article 105 § 2 of the Russian Criminal Code (aggravated murder). 37. The investigators inspected the scene of incident and found inside a half-demolished house four seriously burned dead bodies showing signs of a violent death, two AK-74 machine guns with spent cartridges and a MOH50 mine. Next to the house they found forty-nine shells for 7.62 calibre bullets and two shells for 9 mm calibre bullets. 38. On 18 February 2002 the bodies were transferred to the deputy head of the Mesker-Yurt local administration, Mr M. 39. On 18 February 2002 the investigators questioned a serviceman from military unit no. 3179, Mr I., who stated the following. On 18 February 2002 a group of servicemen had been travelling past Mesker-Yurt when they were fired at from machine guns. Their senior officer had decided to block off the area from which the firing had come; the servicemen had fired back. Then a storm unit had moved forward and found four charred corpses in the ruins, two machine guns and a mine. Some servicemen had stayed at the scene of incident, and others had gone to Mesker-Yurt to bring in investigators. 40. On the same date Mr M. was questioned and stated that on 18 February 2002 he had heard sounds of an explosion and machine-gun fire. Then some servicemen had come to his office and told him that he had been called out by the military commander of the Shali District. They had arrived at the half-demolished house owned by Mr Kh. The servicemen had told Mr M. that they had discovered four charred corpses. He had not seen the bodies himself. 41. On 18 February 2002 an officer of military unit no. 3179 (his name has not been disclosed) was questioned as a witness and stated the following. On 18 February 2002 his unit had been travelling from Khankala in four armoured personnel carriers and ten lorries after having participated in the special operation carried out there. In the vicinity of Mesker-Yurt their vehicles had been fired at. The officer had ordered the APCs to surround those who had opened fire. Four or five men had run towards a red-brick building. The servicemen had surrounded the building and fired back. At some point the servicemen had sent two missiles from a grenade launcher; the building had been set on fire. The officer's subordinates had taken two machine guns out of the building and left as they had been unable to inspect the scene more closely because of the mines scattered there. The servicemen's actions had been strictly necessary. Other servicemen from the officer's unit were also questioned and made identical depositions. 42. A resident of Mesker-Yurt was questioned and stated that Mr Kh.'s house had been demolished in the course of a special operation on 8 February 2002. 43. On 19 February 2002 the district prosecutor's office instructed the police to find witnesses and identify the deceased, but to no avail. 44. On 26 March 2002 the district prosecutor's office sent a letter to the Groznenskiy district prosecutor's office, which read, in so far as relevant, as follows: “On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to the statements by the servicemen of military unit no. 3179, those men had been killed by them in the course of an armed clash. The Shali district prosecutor's office instituted criminal proceedings in case no. 59054 ... Upon assessment of the results of an inspection of the scene of the incident it is possible to conclude that the corpses had been transferred from another place and set on fire there [in the half-demolished house in Mesker-Yurt].” 45. On an unspecified date in 2002 (the exact date on the copy of the document at the Court's disposal is illegible) the district prosecutor's office sent a letter to the VOVD and the ROVD, which read, in so far as relevant, as follows: “On 18 February 2002 four charred corpses of unidentified men were found in a demolished house ... in Mesker-Yurt. According to statements by the servicemen of military unit no. 3179, they killed the said men in the course of an armed clash. ... There are grounds to assume that the bodies were transferred to the said place in order to stage armed resistance to hide evidence of a murder. Accordingly, I would ask your unit to take the following investigative measures: ... 2. To identify the killed men (they were most probably brought from Starye Atagi, where a special operation had been taking place)...” 46. On 18 April 2002 the district prosecutor's office suspended the investigation. 47. On 17 May 2002 the Groznenskiy district civil registrar's office issued death certificates in respect of Movsar and Movladi Nasukhanov, stating that they both died on 14 February 2002. Gunshot wounds to their bodies and heads were specified as the cause of the death in both cases. 48. In March 2003 ballistic expert examinations of the bullets and shells found at the scene of incident were carried out. They did not match those in the ballistic database of the Chechen Republic. 49. On an unspecified date in August 2003 (the exact date on the copy of the first page of the document at the Court's disposal is illegible) the prosecutor's office of the Chechen Republic quashed the decision on suspension of the proceedings for the reason that “the investigation [had] not actually been carried out, the decision on suspension [had] been taken by an investigator prematurely and unlawfully”. It was noted that the bodies had not been formally identified and that the relatives of the Nasukhanov brothers who had stated that the dead bodies belonged to their family members had not been questioned. Moreover, a post-mortem examination of the bodies had not been ordered and carried out. 50. It appears that at some point the proceedings were resumed. 51. On 20 January 2004 the district prosecutor's office ordered a postmortem examination of the four bodies to be carried out. 52. On 22 January 2004 Mr S.Kh., a resident of Starye Atagi, was questioned as a witness. He stated that in February 2002 there had been an armed clash between the federal troops and insurgents in his village. The federal servicemen had also carried out a special “sweeping” operation, in the course of which his son and the three Nasukhanov brothers and their cousin had been arrested. The detainees had been brought to the mill where the military unit had been stationed. At the request of the local authorities the servicemen had released his son and Vakha Nasukhanov. The two Nasukhanov brothers and their cousin, as well as twelve other residents of Starye Atagi, had not been released and their fate had been unknown. Two or three days later, after the special operation in Mesker-Yurt, Mr S.Kh. had heard that four unidentified dead bodies had been found there. Together with the Nasukhanovs' relatives, Mr S.Kh. had identified three of the bodies as the Nasukhanov brothers and their cousin; the fourth body had not been identified. All the four bodies had been charred and covered in blood but Mr S.Kh. had not seen any firearm wounds on them. 53. On 27 January 2004 the first applicant was granted victim status in case no. 59054 and questioned. He stated that on 14 February 2002 the armed clash between the federal troops and insurgents had commenced in his village. The servicemen had taken away his sons and their cousin, Ruslan Nasukhayev for an identity check. On the evening of 16 February 2002 his son Vakha had been released. On 17 February 2002 he had been told that four dead bodies had been found. On 20 February 2002 the first applicant, together with the second applicant and Mr S.Kh., had seen the burned bodies. The first applicant was only able to identify Movsar and Ruslan by their clothes and shoes. Firearm wounds had been visible on the bodies. 54. On 9 February 2004 the investigators questioned Ms N., a sister of Ruslan Nasukhayev, who stated that her brother and his cousins had been arrested and detained in the mill. Later Vakha had been released but Ruslan, Movladi and Movsar had been found dead. 55. On 11 February 2004 Mr Sh.Kh., a deputy prosecutor of the town of Argun, was questioned as a witness and stated that on 18 February 2002 he had visited the scene of incident together with an investigating team. They had found two machine guns, which had been dirty and had not been used for a while. There had been gunshot wounds on the bodies. In his opinion, the deaths had occurred some five to ten hours before his arrival. 56. On 15 February 2004 the district prosecutor's office suspended the investigation for failure to identify those responsible. 57. On 9 March 2006 the district prosecutor's office received a letter from the SRJI; they replied to it on 10 March 2006. 58. On 16 November 2006 a lawyer requested the district prosecutor's office for access to the investigation file. On 17 November 2006 the request was dismissed. 59. In the Government's submission, after 15 February 2004 the investigation remained suspended. No decisions to resume or suspend the investigation were taken on 29 April 2005 and 17 November 2006. 60. On 18 June 2009 the investigating unit of the Investigating Committee of the Russian Prosecutor's Office for the Chechen Republic (“the investigating unit”) resumed the investigation in case no. 59054. 61. On 1 July 2009 the investigating unit ordered an investigating group to be set up with the participation of civilian and military prosecutors to deal with case no. 59094. The decision read, in so far as relevant, as follows: “At about 9.30 a.m. on 14 February 2002 in the village of Starye Atagi there was a skirmish between unidentified military servicemen and unidentified members of illegal armed groups. After the skirmish the unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the house at 34 Nuradilov Street. At about 12 noon on 18 February 2002 (the exact time has not been established by the investigation) the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, as well as that of an unidentified man, were found inside a partially constructed house on the north-east outskirts of the village of Mesker-Yurt. ... Having studied the case materials, [the investigators] established that sufficient grounds existed to assume that the crime had been committed with the participation of the servicemen of the Russian federal armed forces, which, in particular, is proven by the fact of the skirmish between the servicemen of military unit no. 3179 and unidentified persons.” 62. On 9 July 2009 an official of the investigating unit requested his hierarchical superiors to extend the term of the investigation in case no. 59054. The request read, in so far as relevant, as follows: “Between 12 and 19 February 2002 in the village of Starye Atagi of the Groznenskiy District unidentified military servicemen and officers of law-enforcement agencies [who were] using APCs, UAZ and Ural vehicles were carrying out special operations for the identification of members of illegal armed groups. At about 9.30 [a.m.] on 14 February 2002 a shoot out started between unidentified servicemen and unidentified insurgents. After the shooting, unidentified servicemen kidnapped M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, from the houses at 32 and 34 Nuradilov Street. At about 12 noon on 18 February 2002 ... the dead bodies of M. Nasukhanov, born in 1980, M. Nasukhanov, born in 1981, and R. Nasukhanov, born in 1965, were discovered in ... Mesker-Yurt.” 63. Despite the Court's request to the Government to submit the entire investigation file in case no. 59054, they failed to do so. They submitted what they described as “the main materials of the investigation file”, sixtytwo pages of copies of documents with inconsistent numeration, among which were the following: the decision to open criminal proceedings; the record of the scene of incident inspection; a statement confirming that Mr M. took four bodies away to bury them; one page of the record of Mr I.'s interview; Mr. M.'s interview record; one page of the interview record of an officer from military unit no. 3179; copies of instructions by the investigators to the police; an order to carry out a ballistics expert examination; a certificate confirming that Mr M. was transporting the bodies of the Nasukhanovs; a certificate issued by the Shali ROVD on 1 April 2002; ballistics expert examination reports; decisions to suspend and resume the investigation; orders to carry out medical expert examinations; a record of Mr S.Kh.'s interview, decisions to grant victim status to the first applicant and Ms N. and their interview records; the death certificates of Movsar and Movladi Nasukhanov; a decision dismissing the request for access to the investigation file; and a decision to compose an investigating group. The Government explained that since the investigation in case no. 54059 was in progress, disclosure of all the documents would be in violation of Article 161 of the Code of Criminal Procedure as it would run contrary to the interests of the parties to the proceedings. 64. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).