CASE OF MESHAYEVA AND OTHERS v. RUSSIA
Violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural 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
7. The applicants are: Ms Salamat Magomedsaliyevna Meshayeva, born in 1961; Mr Lom-Ali Akhiadovich Meshayev, born in 1950; Ms Ayshat Lom-Aliyevna Meshayeva, born in 1975; Ms Petimat Lemayevna Elmurzayeva, born in 1989; Ms Kheda Leomayevna Meshayeva, born in 1992; Mr Khasan Leomayevich Meshayev, born in 1993; Mr Khuseyn Leomayevich Meshayev, born in 1993; Mr Mokhdan Lom-Aliyevich Meshayev, born in 1974; Mr Mukhtar Suleymanovich Saydayev, born in 1971; Ms Zharman Gazikhadzhiyevna Saydayeva, born in 1940; Mr Aslan Suleymanovich Saydayev, born in 1963; Ms Milana Aslanovna Saydayeva, born in 1997; Ms Rumisa Dzhabrailovna Musayeva, born in 1965; Mr Uvays Suleymanovich Saydayev, born in 1968; Mr Islam Suleymanovich Saydayev, born in 1983; Mr Magomed Uvaysovich Saydayev, born in 2000. 8. They live in the village of Martan-Chu, Urus-Martan district, Chechnya. 9. The applicants represent two families. Two of their relatives were detained on the night of 16 to 17 December 2002 in Martan-Chu. The two men have not been seen since the day of detention, and the families have been conducting a search for them together. 10. The first eight applicants are relatives of Leoma Akhiatovich Meshayev, who was born in 1952. The first applicant is his wife, the second applicant is his brother, the fourth, fifth, sixth and the seventh applicants are his children. The third and eighth applicants are his niece and nephew. Leoma Meshayev worked as a driver and tractor mechanic. The first applicant suffers from a number of chronic diseases and has category 3 disabled status. The fifth applicant, the Meshayevs’ minor daughter, is seriously ill and has category 1 disabled status. The applicants submitted that Leoma Meshayev had suffered from tuberculosis. In March 2003 the heads of administration of Martan-Chu and of the Urus-Martan district certified that there was no information to suspect Mr Meshayev of involvement in illegal armed groups or any other criminal activities. 11. The Meshayev family live in their own house at 12 Rechnaya Street. About 3 a.m. on 17 December 2002 a group of five or seven men wearing camouflage uniforms and white camouflage cloaks entered the house. They were all armed and masked and spoke Russian and Chechen. 12. One of the men woke up Leoma Meshayev and told him in Chechen “Leoma, wake up!” They threw him on the floor and handcuffed him. When one of the intruders pointed his automatic rifle at Meshayev’s nine-year-old son, another told him in Chechen “Don’t touch the children, they are not guilty”. Then the armed men escorted Leoma Meshayev out of the room, without permitting him to put on warm clothes. He was wearing a short-sleeved Tshirt, trousers and was allowed to put on a pair of boots. 13. The first applicant submitted that she had cried and asked them not to take her husband away and that he hadn’t done anything. The armed men had ordered her to keep quiet, or they would use the firearms. They took her husband’s passport with them, in which documents for his Ural truck were inserted. When they were leaving the house, one of the men hit the first applicant with a rifle butt on the head, as a result of which she briefly lost consciousness. The first applicant was able to see this person quite closely and submitted that he was short and plump, had large blue eyes visible in the opening of his mask and spoke Russian. 14. When the first applicant came round, she found that the men had closed the entrance door to the house by pushing a wardrobe against it. The first applicant managed to open it, with difficulty, and went out into the courtyard. The servicemen there tried to start her husband’s Ural truck, but failed. They then proceeded along Svoboda Street towards the cemetery. The first applicant ran after them, but they started to shoot at her with machine guns with silencers and she had to keep a distance. 15. The first applicant reached the cemetery and there she lost sight of the men. A woman who lived near the cemetery told her on the following day that she had seen military vehicles – an armoured personnel carrier (APC), two Ural trucks and a UAS vehicle – all without registration numbers, parked near her house. She had also seen a group of armed men around these vehicles, who had loaded her neighbour’s winter supply of wood into one of the vehicles before they left. 16. Leoma Meshayev’s brother, the second applicant, stated that in the early hours of 17 December 2002 he had been awoken by the cries of his sister-in-law, the first applicant, who asked for help and said that his brother had been taken away. The second applicant ran from his house into the nearby main street leading towards Urus-Martan and saw an APC, Ural trucks and a UAZ vehicle passing through the military roadblock towards Urus-Martan. In the moonlight the witness clearly saw that the cars were not stopped or detained at the roadblock. 17. The first and the second applicants submitted detailed statements about the events of the night of 16-17 December 2002. The applicants also submitted a hand-drawn plan of Martan-Chu indicating the places to which they referred. 18. The applicants have had no news from Mr Meshayev since that night. 19. The Government in their observations did not dispute the facts as presented by the applicants. They stated that it had been established that on 17 December 2002 unidentified armed men wearing masks had entered the applicants’ house at 12 Rechnaya Street and taken away Leoma Meshayev, whose whereabouts had not been established. 20. Applicants nine to sixteen are relatives of Bislan Suleymanovich Saydayev, who was born in 1977. The ninth, eleventh, fourteenth and fifteenth applicants are his brothers. The tenth applicant is his mother. The twelfth and sixteenth applicants are his niece and nephew and the thirteenth applicant is his sister-in-law. The applicants submitted that in November 2005 the eleventh applicant had been abducted by unknown persons at the market in Grozny and the family have had no news of him since. The applicants did not submit any complaints in that connection. 21. In March 2003 the heads of administrations of Martan-Chu and of the Urus-Martan district certified that there was no information to suspect Mr Saydayev of involvement in illegal armed groups or any other crimes. The applicants submitted that several days prior to Bislan Saydayev’s detention he, together with the fourteenth applicant, had travelled in the latter’s Kamaz truck together with the military commander of the village and his staff to Mozdok in North Ossetia, to collect New Year presents for the servicemen stationed in the village. 22. The Saydayev family live in their own house in Svoboda Street. In the night of 16 to 17 December 2002 the applicants and their family members were at home sleeping. At about 3 a.m. a group of about 30 men entered the house. They were all armed with machine guns equipped with silencers and masked. Some were dressed in green or black camouflage uniforms, others wore white camouflage cloaks on top. They spoke Russian and Chechen. They did not explain anything to the applicants and did not produce any papers. They proceeded to check the documents of all the men in the family. 23. The tenth applicant, Bislan Saydayev’s mother, submitted that she had been awoken in the night to find the room filled with armed servicemen. A group of soldiers were standing over Bislan Saydayev’s bed. They briefly searched the room and ordered Bislan Saydayev to dress. The tenth applicant asked why they were taking him away and they told her not to worry. They also took Bislan Saydayev’s identity documents with them. 24. The fourteenth applicant, Bislan Saydayev’s brother, submitted that in the early hours of 17 December 2002 he had been awoken by the light of several torches pointed at him. He was ordered not to move and to produce his documents. The fourteenth applicant showed them where his documents were, the men checked them and ordered him to get out of bed and to show them who was sleeping in which room. When the servicemen were taking his brother away, the fourteenth applicant asked where they could find him, but received no reply. 25. The eleventh applicant, Bislan Saydayev’s other brother, submitted that on the night of 17 December 2002 he was sleeping with his family in a separate house within the same courtyard. He was awoken at about 3 a.m. by his mother, the tenth applicant, who knocked on his door and said that Bislan had been taken away. The eleventh applicant rushed into the courtyard and his mother pointed towards the back of the yard, to the vegetable patch. The eleventh and fourteenth applicant tried to pursue the men who had taken their brother away, but they shouted at them to get back and made a few warning shots from automatic guns with silencers, so the applicants had to stop. The applicants noticed an APC, an Ural truck and a UAZ vehicle that had been stationed about 200 metres from their house in the Rechnaya Street. The vehicles left in the direction of Urus-Martan. 26. The eleventh applicant submitted that he had immediately gone to the village military commander’s office but was not allowed to see anyone. Then he had met a fellow villager Sultan M. who confirmed that he had just seen a convoy of an APC, an Ural and a UAZ passing through the military roadblock at the exit from Martan-Chu towards Urus-Martan. 27. In addition to their own detailed statements of facts, the applicants also submitted a hand-drawn plan of Martan-Chu indicating the places to which they referred. 28. The applicants have had no news from Mr Saydayev since that night. 29. The Government in their observations did not dispute the facts as presented by the applicants. They stated that it had been established that on 17 December 2002 unidentified armed men wearing camouflage uniforms and masks had entered the applicants’ house at Svoboda Street in Martan-Chu and taken away Bislan Saydayev to an unknown destination. 30. Immediately after the detention of their family members the applicants started to search for them. On numerous occasions, both in person and in writing, the applicants and their family members applied to prosecutors of various levels, to the Ministry of the Interior, to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, to military commanders, the Federal Security Service (FSB), to the administrative authorities, media and public figures. The applicants also personally visited detention centres in Chechnya as well as further afield in the Northern Caucasus. The search was primarily carried out by the first and the ninth applicant in respect of their husband and brother, respectively. 31. Besides personal visits, the applicants submitted letters to the prosecutors and other authorities in which they stated the facts of their relatives’ detention and asked for assistance and details on the investigation. The applicants have submitted copies of some of the letters they had written. 32. The applicants received hardly any substantive information from official bodies about the investigations into the disappearances and their results. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of the letters retained by the applicants and the replies they received from the authorities. 33. The applicants submitted that in the weeks following Leoma Meshayev’s arrest they had applied in person to the district military commander’s office, the district department of the FSB, the district department of the interior (ROVD), the Urus-Martan District Prosecutor’s Office (the district prosecutor’s office) with inquiries about the fate of their relative. 34. Within this initial period the applicants also submitted written applications stating the circumstances of Mr Meshayev’s detention and requesting assistance in finding him. They did not retain copies of these applications, but on 5 January 2003 the district prosecutor’s office opened criminal investigation file no. 34002 into Leoma Meshayev’s abduction by unidentified armed persons in camouflage uniforms under Article 126 of the Criminal Code. The applicants submitted that they had learnt of the investigation only on 5 March 2003 when the first and the second applicants were questioned and granted victim status in the proceedings. 35. On 13 March 2003 the district prosecutor’s office informed the first applicant that the criminal investigation into her husband’s abduction had been adjourned due to failure to identify the culprits. In response to this information, the first applicant requested the district prosecutor to allow her to have access to the case-file. 36. On 3 April 2003 the first applicant submitted a statement about a missing person to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms. 37. On 18 April 2003 the first applicant wrote to the district prosecutor’s office and the ROVD and asked them to carry out a proper investigation into her husband’s abduction. 38. On 21 April 2003 the district prosecutor’s office replied to the first applicant that although the investigators had taken all possible steps to identify the perpetrators of the crime they had failed to do so. She was invited to inform the prosecutors of any new information about the kidnapping which came to her knowledge. 39. On 29 April 2003 the applicants published a notice in the Marsho newspaper, with a description of the circumstances of their relatives’ apprehension and a call for any information about them. 40. On 18 June 2003 the first applicant again requested the district prosecutor to give her access to the documents of the criminal investigation. On 1 July 2003 the prosecutor’s office invited the first applicant to consult the file. 41. On 10 July 2003 the military prosecutor of the United Group Alliance (UGA) in Chechnya forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 in Khankala. 42. On 28 July 2003 the district military commander informed the first applicant that, following an internal investigation, it had been established that his office had had no part in the apprehension of her husband and had no information about his whereabouts or the identity of the perpetrators. 43. On 30 July 2003 the first applicant appealed the adjournment of the criminal investigation to the Chechnya Prosecutor’s Office. She reasoned that Leoma Meshayev, and also Bislan Saydayev, who had been detained on the same night by the same group of persons, could only have been detained by servicemen because of the use of military vehicles and the fact that these vehicles had been allowed to travel freely through the roadblock, despite the curfew in place. The first applicant requested the prosecutor to resume the investigation, to question the servicemen from the roadblock, the military commander’s office and other law-enforcement bodies of the district about the details of the operation, to identify and question witnesses among local residents, and to collect and examine the bullets and cartridges left behind by the abductors who had shot at the applicant as she was trying to pursue them. He was requested to carry out the investigation urgently, before the traces of the detained men had been lost. The first applicant also requested the prosecutor to join the investigation to the one opened into the abduction of Bislan Saydayev. 44. On 4 September 2003 the district prosecutor’s office replied to the first applicant that the investigation had taken all possible steps to solve the crime, but had failed to identify the culprits. 45. On 17 November 2003 the SRJI wrote to the district prosecutor on behalf of the first and ninth applicants and asked him to inform them of the state of the investigation in files nos. 34002 and 34041. The letter further asked him to join the investigations. A copy of that letter was forwarded to the Chechnya Prosecutor’s Office. 46. On 17 December 2003 the Chechnya Prosecutor’s Office informed the SRJI that on 10 December 2003 the criminal investigations into the abductions of Mr Meshayev and Mr Saydayev had been joined. Further details would be communicated to the applicants directly. 47. On 7 July 2004 the SRJI wrote to the district prosecutor’s office and again asked for information about the progress of the investigation. 48. On 21 July 2004 the district prosecutor’s office replied to the SRJI that the two criminal cases had been joined under file number 34002 and that on 13 December 2004 (to quote the text) the investigation had been adjourned. Efforts to find the two men would continue. 49. On 14 November 2005 the SRJI asked the district prosecutor’s office to inform them of the progress in the investigation and to carry out the following actions: to identify the provenance of the military vehicles involved in the abduction, to locate and review all registration documents related to the movement of military vehicles in the district on the night in question, to identify the authorities that had carried out special operations in the district on 17 December 2002 and to question their officers about the detention of Leoma Meshayev and Bislan Saydayev, and to question the servicemen of the Urus-Martan military commander’s office and other officials in charge of enforcing the curfew. 50. In the morning after his brother’s abduction, on 17 December 2002, the fourteenth applicant went to the military commander of the village. He submitted that the commander had told him that he did not know who had detained his brother. The commander also told him that on the previous day, on 16 December 2002, he had received a warning that an operation was being prepared in their village, but that later this operation had been cancelled. He had not been informed about the reasons for the operation or for its cancellation. He also allegedly promised to help them if Bislan Saydayev had been detained by the military, but said that he would not be able to do anything if he had been detained by the FSB. 51. The applicants submitted that in the following weeks they applied in person with inquiries about the fate of their relative to the district military commander’s office, the FSB, ROVD and the prosecutor’s office. The ninth applicant also asked the head of the Administration of Chechnya to order an investigation of his brother’s detention by unidentified servicemen. 52. At some point the applicants submitted written applications to the authorities stating the circumstances of Mr Saydayev’s detention and requesting assistance in finding him. They did not retain copies of these applications, but kept copies of the later applications. On 24 March 2003 the ninth applicant requested the district prosecutor’s office to open a criminal investigation into his brother’s abduction or to inform him if his brother had been accused of any crime. He referred to their previous unsuccessful applications to various law-enforcement structures. 53. On 6 April 2003 the ninth applicant wrote to the member of the State Duma elected from Chechnya and to the Speaker of the State Duma, complaining about his brother’s disappearance. He stated that they had applied to various law-enforcement bodies in vain. The ninth applicant asked the Duma to create a commission to investigate the phenomenon of “disappearances” in Chechnya. 54. On 11 April 2003 the district prosecutor’s office informed the ninth applicant that their office had opened criminal proceedings into his brother’s kidnapping. 55. On 23 April 2003 the ninth applicant was granted victim status in criminal investigation file no. 34041 opened into his brother’s abduction by unidentified persons. 56. On 5 May 2003 the tenth, eleventh, fourteenth and fifteenth applicants asked the district prosecutor’s office to grant them victim status in the proceedings concerning the abduction of their son and brother. It is unclear if these requests were granted. 57. On 10 June 2003 the district prosecutor’s office informed the ninth applicant that on 10 June 2003 criminal investigation no. 34041, opened on 10 April 2003, had been adjourned due to failure to identify the culprits. The applicant was informed of the possibility to appeal. 58. On 17 June 2003 the military prosecutor of military unit no. 20102 forwarded the ninth applicant’s complaint to the district prosecutor’s office and stated that there were no grounds to suspect the involvement of military servicemen. 59. On 28 July 2003 the ninth applicant appealed against the adjournment of the criminal investigation to the Chechnya Prosecutor’s Office. He reasoned that his brother could only have been detained by servicemen because of the use of military vehicles and the fact that the vehicles had been allowed to travel freely through the roadblock, despite the curfew in place. The ninth applicant requested the prosecutor to resume the investigation, to question the servicemen of the roadblock, of the military commander’s office and other law-enforcement bodies of the district about the details of the operation, to identify and question witnesses among local residents, to collect and examine bullets and cartridges left behind by the abductors who had shot at the eleventh and fourteenth applicant as they were trying to pursue them. The complaint requested that the investigation be carried out urgently, before the traces of Bislan Saydayev had been lost. 60. On 9 August 2003 the Chechnya Prosecutor’s Office forwarded the ninth applicant’s complaint to the district prosecutor’s office. 61. On 29 September 2003 the ninth applicant requested the district prosecutor’s office to allow him access to the materials of the adjourned criminal investigation into his brother’s abduction. 62. In their observations the Government did not dispute the information concerning the investigations as presented by the applicants. Relying on information obtained from the General Prosecutor’s Office, they referred to other procedural steps which had not been mentioned by the applicants. However, despite specific requests from the Court, the Government did not submit copies of most of the documents to which they referred (see below). The Government submitted the following. 63. On 5 January 2003 the district prosecutor’s office opened criminal investigation file no. 34002 concerning the abduction of Leoma Meshayev on 17 December 2002. According to a document issued on 21 June 2006 by the acting district prosecutor, the main version of the crime examined by the investigation was the involvement of “power structures and military units” (“силовых структур и воинских подразделений»). 64. On 8 January 2003 the first applicant was questioned and granted victim status in the proceedings. She was also questioned again on several occasions. She stated that on the night of 16 to 17 December 2002 about five armed persons wearing military uniforms who had spoken Russian and Chechen had entered their house and abducted her husband. The second applicant was questioned on 8 January 2003 and gave similar statements; however, he stated that there had been about ten abductors. 65. On 10 April 2003 the district prosecutor’s office opened criminal investigation file no. 34041 concerning the abduction of Bislan Saydayev on 17 December 2002. 66. According to the Government, on 23 April 2003 the investigators granted victim status to the ninth applicant. When questioned he stated that at about noon on 17 December 2002 he had returned from Grozny and had learnt from his brother, the fourteenth applicant, that at about 3 a.m. on that night unknown armed persons had entered their house and taken away their other brother, Bislan Saydayev. The tenth and the fifteenth applicants gave similar statements on unspecified dates. 67. The Government stated that other relatives of Bislan Saydayev, notably, the tenth, fourteenth and fifteenth applicants, had not sought the status of victims in the proceedings related to his disappearance and had not been accorded it. 68. On 13 December 2003 the investigation of the two cases was joined and the case file was assigned number 34001 (to quote the text). 69. The Government submitted to the Court one witness statement made by the first applicant, dated 23 June 2006, in which she described the circumstances of her husband’s arrest and the fact that she had been hit in the face by one of the intruders. No other statements were produced. 70. In their observations the Government referred to witness G.’s statement of 10 December 2003 that on the night of 16 December 2003 [should probably be 2002] a large part of his supply of cut wood for winter, which had been stored near the cemetery, had been stolen. He had seen the tracks of heavy military vehicles, such as APCs or Ural trucks, near that place. On 23 June 2006 the investigation decided not to open criminal proceedings in relation to the theft in view of the expiration of the statutory time-limits. 71. The Government noted that the applicants’ statements that their relatives had been detained by servicemen could not be confirmed. The applicants did not recall any details of the clothing, arms or distinctive marks on the uniforms of the abductors. 72. The Government also noted that the investigation had found no grounds to support the first applicant’s allegations that she had been hit during the arrest of her husband, as she and other witnesses had not mentioned this during questioning. As to the first applicant’s statement that the armed men had also taken her husband’s passport, the Government informed the Court that the investigators had decided not to open criminal proceedings in this respect, due to expiration of statutory time-limits. Finally, the Government contended that Leoma Meshayev had not been on the register of the local tuberculosis health centre, despite the applicants’ allegation that he had suffered from that disease. 73. According to the Government, the investigators had sought information about the two men from various State authorities. On unspecified dates the district military commander’s office, the Urus-Martan district department of the FSB and “other power structures” stated that they had no information about the carrying out of special activities on the night in question in Martan-Chu. Their offices had not detained Leoma Meshayev and Bislan Saydayev. The law-enforcement agencies of Chechnya informed the investigators that they had never detained or arrested the two missing men, nor carried out a criminal investigation in their respect. The investigation failed to establish the whereabouts of Mr Meshayev and Mr Saydayev. Requests for information sent by the investigators in 2007 and 2008 produced no new results in the investigation of the crime. 74. As it appears from the documents submitted by the Government, the investigation had been suspended and reopened a number of times. The applicants had been occasionally informed of these developments. According to the Government, the investigation was under the control of the Prosecutor General’s Office. 75. Despite specific requests by the Court the Government did not submit a copy of the file in criminal case no. 34002, providing only copies of decisions to suspend and resume the investigation and to grant victim status, notifications to the applicants of the suspension and reopening of the proceedings and one witness statement mentioned above. 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 breach 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. 76. On 6 April 2006 the first and ninth applicants applied to the Urus-Martan Town Court (“the town court”). They complained that the district prosecutor’s office had failed to effectively investigate the disappearances and requested to be granted access to the case file. 77. On 4 May 2005 the town court partially allowed the complaint based on the district prosecutor’s office’s failure to take effective steps and to investigate the abduction. The court ordered the district prosecutor’s office to resume the investigation and to carry out a number of investigative actions as requested by the applicants, such as questioning the residents of Martan-Chu and the servicemen of the military roadblock situated on the road towards Urus-Martan who had been on duty on the night of 16-17 December 2002. The court refused to grant the applicants access to the case file, stating that that right was accorded to victims only on completion of the investigation, and not when the proceedings were adjourned. On 7 July 2005 the Chechnya Supreme Court upheld this decision. 78. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.