CASE OF BETAYEV AND BETAYEVA v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 8;Violation of Art. 13+2;Violation of Art. 13+8;Remainder inadmissible;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicants were born in 1957 and 1958 respectively and live in the village of Goyty, the Urus-Martan District, the Chechen Republic. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicants and their two sons, Lecha Betayev, born in 1981, and Ibragim Betayev, born in 1983, lived together in their three-room family house at 52 Kagermanova Street in the village of Goyty. 8. On the night of 25 to 26 April 2003 the applicants and both their sons were at home. The applicants were sleeping in one room and their sons in separate rooms. 9. At about 1.30 a.m. a group of around twenty armed men in camouflage uniforms arrived at the Betayevs’ house. Some of them stayed outside, while others forcibly entered the house. All but three of them were wearing balaclava masks. They did not identify themselves and offered no explanation for their visit. Their commander had no mask on, and the applicants observed that he had fair hair, blue eyes, a straight nose and Slavic features. The applicants inferred that the armed men were federal military or security servicemen because they spoke Russian without an accent and their uniform was similar to that of the federal armed forces. 10. The servicemen went to all rooms at once and three of them entered the room where the applicants were sleeping. They turned on the light and shouted at the applicants while pointing their machine guns at them. The first applicant tried to get up, but one serviceman hit him on the shoulder with the butt of his machine gun to push him down. Then he grabbed the first applicant by the collar of the shirt, pulled him down and ordered him to lie face down on the floor. The first applicant obeyed. The second applicant was told to face the wall and stand still without turning her head. 11. The applicants could hear from the next room that Ibragim Betayev was asked his full name and replied. The first applicant could also see that Lecha Betayev was woken up, ordered to get out of bed and then taken outside by two servicemen. The applicants and their sons were not requested to show their identity papers. 12. One of the servicemen, who appeared to be in charge of the others, told the first applicant that one of his fellow Chechen villagers had reported that the first applicant had had a machine gun and a radio station at home. The first applicant replied that he had not had any weapon. The servicemen started searching the house; the applicants were not presented with a search warrant and no witnesses were asked to observe the scene. 13. During the search the first applicant was permitted to sit on the bed, but was ordered not to turn his head and not to follow the search. 14. The servicemen searched the house, including the attic, the courtyard and the sheds outside, turning everything upside down. They were going to take up the floor of the house, but the first applicant asked them not to do so because, given the poor condition of the house, it might have been problematic, and the commander decided not to. The search took about one hour; after that the applicants heard the noise of an armoured personnel carrier (“APC”) revving up outside. Two or three minutes later the man who was in charge of the other servicemen told them that they were leaving. He ordered the applicants to remain in the house, threatening to shoot if they went outside before the servicemen had left. 15. Only then did the applicants discover that Lecha and Ibragim Betayev had been taken away. 16. The second applicant went into the courtyard and saw five military vehicles. When the vehicles started driving off the APC went first, followed by two UAZ vehicles and then two Ural vehicles. The applicants could hear that the vehicles were moving in the direction of the village centre of Goyty and then towards Grozny without stopping or slowing down at the military checkpoint on the bridge across Argun channel, although they could not avoid it driving in that direction. 17. Having looked around, the applicants discovered that the servicemen had taken away some of their belongings, such as mechanical tools, an electric battery charger and some other domestic hardware. According to the written statements by Ms M. and Ms D., villagers of Goyty, in the morning of 26 April 2003, the applicants’ house was in chaos after the search and the marks of military boots could be seen everywhere. 18. The applicants waited until the dawn and then inspected the traces of the military vehicles. They found that all the vehicles, apart from the APC, had been parked some thirty or fifty metres away from their house, while the APC must have been parked right in the river bed of Goytinka, which flows about twenty metres from the applicants’ house. They could see the traces clearly because it had drizzled that night. According to the written statement by Ms M., she saw the APC traces at the same spot as well. She also discovered that her fence had been broken through on that same night, so as to allow access into the courtyard of the Betayevs’ house. 19. The Government submitted that, according to the Prosecutor General’s Office, on 26 April 2003 the first applicant had reported to the Urus-Martan District Department of the Interior (“ROVD”) that at about 2.30 a.m. unidentified persons armed with machine guns had broken into his house and taken away his sons, Lecha and Ibragim Betayev. 20. On 26 April 2003 the applicants started searching for Lecha and Ibragim Betayev. Both in person and in writing, they applied to various official bodies trying to find out the whereabouts and the fate of their sons. It was the first applicant who made all the written submissions to various authorities on behalf of both applicants because the second applicant was illiterate. The applicants retained copies of some of the letters to the authorities and their answers, which they submitted to the Court. 21. The applicants also kept up a constant search for traces of their sons through informal channels, by contacting officials and other people. They took part in the identification of numerous dead bodies found in all parts of Chechnya, but in vain. 22. Their attempts to find out the whereabouts of Lecha and Ibragim Betayev and the criminal proceedings can be summarised as follows. 23. In the morning of 26 April 2003 the first applicant went to the local police station in Goyty and asked Mr Kh., the officer on duty, about the abduction of his sons. Mr Kh. told the applicant that at about 1.30 a.m. on 26 April 2003 he had seen two UAZ vehicles and an APC with men wearing camouflage uniforms sitting on it. The vehicles had been heading towards the applicants’ house. Mr Kh. and his colleague had unsuccessfully tried to stop them. Mr Kh. had informed the ROVD of this, but received an order from the latter not to intervene. The applicants provided Mr Kh.’s detailed written testimony of those events. 24. After going to the police station in Goyty, the first applicant went to the district centre, the town of Urus-Martan. There he visited the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”), the ROVD and the local administration. With all of them he lodged complaints concerning the abduction of his sons, in which he also mentioned that the perpetrators had broken his furniture and wrecked the floors and the ceiling. An investigator from the district prosecutor’s office interviewed him and the first applicant related in detail the circumstances of his sons’ abduction. 25. On the following days the applicants regularly went to Urus-Martan to visit all district authorities and find out whether there had been any news of their sons. However, no authority acknowledged any involvement in the abduction of Lecha and Ibragim Betayev and all of them denied knowledge of their whereabouts. 26. Four days later the applicants were visited by an officer from the ROVD. He briefly inspected the site, which was still in a state of disorder after the search; he also questioned the applicants and two neighbours, who confirmed the use of military vehicles by the armed servicemen. 27. On 5 May 2003 the district prosecutor’s office informed the first applicant that an investigation into the kidnapping of Lecha and Ibragim Betayev had been opened in case no. 34053. 28. On 8 May 2003 the district prosecutor’s office granted the first applicant victim status in the criminal proceedings. 29. On 1 July 2003 the district prosecutor’s office suspended the investigation in case no. 34053 for failure to identify those responsible. 30. On an unspecified date the applicants requested the expert of the European Union in respect of the Southern Federal Circuit, Mr Lyuboslavskiy, to assist them in the search for their sons. On 21 July 2003 the latter wrote to the Prosecutor General of Russia describing the circumstances of the search of the applicants’ house and of Lecha and Ibragim Betayev’s abduction and asking for information about the measures taken to investigate the unlawful arrest of the Betayev brothers. 31. On 21 July 2003 the district prosecutor’s office resumed the investigation in case no. 34053. 32. On 25 August 2003 the prosecutor’s office of the Chechen Republic notified the first applicant that the criminal investigation into the kidnapping of his sons had been suspended and subsequently resumed. 33. On 29 September 2003 the first applicant wrote to the district prosecutor’s office once again complaining of the unlawful search and of his sons’ arrest and setting out all the details he considered relevant to the investigation, such as the description of the military vehicles and the reasons why he thought that the armed men had belonged to the federal forces. He also complained of lack of information on the progress in the investigation and requested an update. 34. On 7 October 2003 the first applicant wrote the Urus-Martan District Department of the Federal Security Service (“FSB”) asking whether his sons had been detained by the FSB or whether they had been wanted or suspected of any criminal activity. 35. On 13 October 2003 the first applicant again wrote to the district prosecutor’s office reiterating his allegations that the State agencies had been involved in the detention of his sons. He expressed concern that their lives could be in danger, or that they may have been tortured, and asked for urgent and effective measures to be taken in the search for them. He also requested to be allowed access to case file no. 34053. 36. On 24 October 2003 the first applicant lodged a complaint with the prosecutor’s office of the Chechen Republic requesting that the district prosecutor’s office be compelled to take urgent steps to investigate the disappearance of his sons. 37. On 31 October 2003 the district prosecutor’s office suspended the investigation in case no. 34053. 38. On 10 November 2003 the district prosecutor’s office resumed the criminal proceedings in case no. 34053 and notified the first applicant at once of the suspension and resumption of the investigation. 39. On 9 December 2003 the first applicant wrote to the Department of the FSB of the Chechen Republic reiterating his enquiry of 7 October 2003. 40. On 19 January 2004 the first applicant complained to the Prosecutor General of Russia of the failure to investigate the disappearance of his sons. 41. On an unspecified date in January 2004 the first applicant received a reply from the Department of the FSB of the Chechen Republic. He was informed that Lecha and Ibragim Betayev had not been arrested by the Urus-Martan District Department of the FSB and had never been brought to its premises. He was also informed that no criminal proceedings had been instituted against his sons and that their arrest had not been ordered. 42. On 9 March 2004 the prosecutor’s office of the Chechen Republic informed the first applicant that, further to his complaint to the Prosecutor General of Russia, his case had been reviewed and that some investigative actions were being taken. He was invited to address all his queries to the district prosecutor’s office. 43. On 5 November 2004 the first applicant requested the district prosecutor’s office to resume the investigation in case no. 34053. On 14 November 2004 the district prosecutor’s office replied that all requisite investigative measures had been taken to solve the crime and that the search for the perpetrators was under way. 44. On 2 June 2006 the Prosecutor General’s Office informed the first applicant that his complaint had been forwarded to the prosecutor’s office of the Chechen Republic. 45. On 1 May 2003 the district prosecutor’s office instituted a criminal investigation in case no. 34053 into the disappearance of Lecha and Ibragim Betayev by unidentified armed persons under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). 46. On 8 May 2003 the first applicant was granted victim status and questioned. He submitted that at about 1.30 a.m. around twenty unknown armed men had entered his house and searched it. They had taken away his sons. The second applicant was questioned on an unspecified date and made a statement identical to that by her husband. 47. The district prosecutor’s office questioned nine neighbours of the Betayevs. They submitted that they had not eyewitnessed the abduction of the applicants’ sons and had heard no noise of engines on the night of 25 to 26 April 2003. 48. A number of other witnesses were questioned in the course of the investigation. However, the identities of the perpetrators were not established. No proof was found supporting the allegation that servicemen of the federal forces had been involved in the crime. 49. On several occasions the district prosecutor’s office instructed the ROVD to establish the whereabouts of Lecha and Ibragim Betayev. They also sent requests to remand prisons of the Chechen Republic and adjacent regions, military units of the United Group Alignment, the military commander’s office of the Urus-Martan District and the departments of the FSB. Those bodies had no information on Lecha and Ibragim Betayev’s whereabouts. 50. The headquarters of a military unit located not far from the village of Goyty informed the district prosecutor’s office that their servicemen had not carried out any special operations on 26 April 2003. 51. Between 1 July 2003 and 16 January 2004 the investigation was suspended four times for failure to identify those responsible and then resumed. The first applicant was promptly notified of the decisions suspending and resuming the investigation. 52. On 16 February 2004 the district prosecutor’s office once again suspended the investigation and notified the first applicant accordingly. 53. On 11 July 2006 the prosecutor’s office of the Chechen Republic quashed the decision of 16 February 2004 because certain requisite investigative measures had not been taken; in particular, the servicemen of the ROVD had not been questioned. The proceedings were resumed. 54. On 17 August 2006 the district prosecutor’s office rejected a request by the applicants to institute criminal proceedings on account of unlawful intrusion into their home on the night of 25 to 26 April 2003 for failure to comply with a two-year statutory limitation period. On the same date they extended the scope of the charges against the unidentified persons who had kidnapped the applicants’ sons to an offence under Article 158 § 2 (aggravated theft) and allowed the first applicant to join the criminal proceedings as a civil party. 55. On 17 August 2006 the district prosecutor’s office suspended the investigation in case no. 34053. 56. On 18 September 2006 the investigation was again resumed. 57. Despite specific requests by the Court the Government did not disclose most of the contents of criminal case no. 34053, providing only copies of decisions to suspend and resume the investigation and to grant victim status and of several notifications to the relatives of the suspension and resumption of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses or other participants in the criminal proceedings. 58. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.