CASE OF AMADAYEV v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);No violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1965 and lives in Chastoozerye, the Kurgan Region, Russia. 6. The applicant and his family are of Chechen ethnic origin. They live in the Chastoozerskiy district of the Kurgan Region (also called Chastoozerye). According to the applicant, at the time of the events in question the population of the Chastoozerye district constituted about 6,000 persons, of whom about 50 were of Chechen origin. 7. The applicant submitted that attitudes towards the Chechen minority had worsened after 2000, when the second armed conflict in Chechnya had started. Two Russian nationalist organisations were particularly active in the Region: Russian National Unity (RNE) and Russian National Cultural Autonomy (RNKA). 8. It appears from the applicant’s statements and other documents that prior to 18 May 2002 there was a conflict between individuals involving Chechens. This was perceived by some as mounting ethnic tension in the district. In particular, the applicant claimed that a resident of Kurgan, Mr A.I., the manager of a sausage factory in Chastoozerye, and Mr S.K., a boxing coach from Chastoozerye, had invited the Chechen community and some nationalist Russian groups to meet to “settle the dispute” on 18 May 2002. Pursuant to a statement of 3 June 2006 given by Mr D.A., who calls himself “the spiritual leader of the Chastoozerye Chechens”, on 18 May 2002 he had transmitted this information to the district prosecutor and the head of the administration in order that measures could be taken with a view to maintaining law and order (see below). 9. In the afternoon of 18 May 2002 a group of police officers was deployed on the main road of Chastoozerye, near the sausage factory. At about 5 p.m. this group stopped the applicant’s car, in which there were also two other Chechen men from Chastoozerye, Mr S.-A.B. and Mr U.B. Their vehicle was inspected, together with their documents. The car then proceeded to Mr S.-A.B.’s house at no. 28 Marx Street. 10. At about 5.30 p.m. three cars – a white and a red VAZ 2110 and a Moskvich 2115 – passed the same police officers and stopped in front of the house. About fifteen men, including Mr S.K., got out of the cars and invited the applicant and Mr U.B. to get into the cars and accompany them. When they refused, one of the men shot the applicant in one knee, and then in the other knee, with an airgun. They then beat the two men with baseball bats, as a result of which the applicant’s right arm was broken. 11. The applicant was left on the road in front of Mr S.-A.B.’s house, while Mr U.B. was forced into the Moskvich and driven to the sausage factory. There was a crowd of up to 70 men there, including the manager Mr A.I.; they beat Mr U.B. with metal rods, baseball bats and pipes. During the beatings the crowd shouted nationalist and anti-Chechen slogans. The police eventually intervened and set Mr U.B. free. Later the same day the applicant and Mr U.B. were taken to the local hospital by Mr D.A. The applicant did not submit any medical documents to the Court, but the criminal investigation (see below) cited two forensic expert reports describing his and Mr U.B.’s injuries. 12. It appears that other incidents not involving the applicant directly took place later that day in Chastoozerye. A group of men of Chechen ethnic origin remained in the forest near the village; in the early hours of 19 May 2002 the police rounded them up and found weapons and home-made explosive devices. This group was taken to the district police department (ROVD) by officers of the police special forces (SOBR). They were released after they had spent the night at the police station where, allegedly, they had also been beaten and insulted. 13. The applicant submitted a list of the documents contained in criminal investigation file no. 96348 and extracts from (not copies of) some of the documents. According to his notes, by 2006 the case file contained 255 pages of documents in two volumes. The Government did not contest the applicant’s description of the investigation, but supplemented it with information on later developments. The most relevant information may be summarised as follows. 14. On 18 May 2002 the Chastoozerye ROVD opened a criminal investigation under Article 111, part 3, (intentional infliction of serious injuries committed by a group of persons or as a result of conspiracy). 15. On 13 June 2002 the head of the Kurgan Department of the Interior set up a group of five police investigators to work on the case. 16. Between August 2002 and June 2004 the investigation was suspended and resumed on five occasions. Following the applicant’s latest complaint, on 28 June 2011 the decision of 11 June 2004 adjourning the investigation was quashed and the case was sent for further processing to the police investigation department of the Kurgan Region. The prosecutor’s office letter of the same date acknowledged that the applicant had not been timeously informed of the decision to adjourn the case in June 2004. 17. On 10 August 2011 the investigation was again suspended, since the perpetrators could not be identified. 18. On 18 May 2002 the applicant was questioned and granted victim status. 19. On 22 May 2002 the applicant submitted a written statement to the Chastoozerye District Prosecutor (“the district prosecutor’s office”), describing the events of 18 May 2002 and asking for a criminal investigation to be carried out into the incident in which he had sustained his injuries. In his statement the applicant named Mr. S.K. as one of the perpetrators and the owner of the Moskvich vehicle. 20. Mr U.B. was questioned on 18 May 2002; on 18 June 2002 he was additionally questioned and granted victim status. He named Mr. A.I., the sausage factory manager, as one of the persons present at the factory during his ill-treatment, and Mr S.K. as the owner of the car in which he had been transported. He also described several other attackers in some detail, including a Mr Ye.P. 21. On 22 May 2002 a forensic expert found that Mr U.B. was suffering from the consequences of beatings and that one rib was fractured; the injuries were therefore moderately serious. 22. On 28 June 2002 a forensic expert found that the applicant had suffered two gun-shot wounds from pellets in the knees, resulting in fractures of the tibiae; and a fracture of the right elbow caused by a blow with a blunt instrument. These were described as moderately serious injuries. 23. In May 2003 the applicant was again questioned. He described the attack on him, again mentioning Mr S.K. as one of the perpetrators. He further stated that Mr U.B. had gone to Chechnya and would not be able to identify the other attackers. 24. On 19 May 2002 about a dozen men - local residents of Chechen ethnic origin - were questioned by the police. Most of them confirmed that on 18 May 2002, after 7 p.m., they had had a pre-arranged meeting with Mr A.I. During the meeting he had told them that the men who had injured the applicant and Mr U.D. had already left. After the meeting they had gone into the forest to avoid further violence. 25. On 3 June 2002 Mr D.A., the “spiritual leader of the Chastoozerye Chechens”, submitted a written statement to the head of the Kurgan Region Police. Mr D.A. described the events of 18 May 2002, indicating that at 10 a.m. on that day he had informed the district prosecutor and the head of the administration about the forthcoming gathering of an anti-Chechen group in Chastoozerye. He then described the attack on the applicant and Mr U.B. and the subsequent detention and ill-treatment of the Chechen men by the police. He asked the police to investigate the crimes committed. 26. In July 2002 the investigators questioned a number of other Chechens, including the applicant’s brother. They described the attack on the applicant and the subsequent events of 18 May 2002, referring in particular to Mr S.K. and Mr A.I. as active participants in the violence. 27. On an unspecified date, 28 ethnic Chechen men residing in Chastoozerye submitted a complaint to the prosecutor of the Kurgan Region. They described the events prior to 18 May 2002, as well as the attack on the applicant and Mr U.B. They also complained about their detention at the ROVD on the night of 18 to 19 May 2002, stating that they had been subjected to beatings and insults. 28. On 18 and 19 May 2002 the investigators questioned a dozen men who had been present at the sausage factory during the events. Some of them stated that they had come to Chastoozerye to spend the weekend with Mr. A.I., to play football and go to the sauna together. Others stated that they had been told by their friends that “their help was needed” at a meeting with Chechens. Most of them confirmed that a group of up to 80 men had gathered at the sausage factory in the afternoon of 18 May 2002 and that they had discussed the conflict involving the local Chechens. No one mentioned the incident with the applicant or the beating up of Mr. U.B. 29. On 19 May 2002 Mr U.B. identified Mr Ye.P. in a line-up as one of the men who had attacked him in Marx Street and then at the sausage factory. 30. Mr A.I. was questioned on 19 May 2002 and then again on 19 June 2002. During the first questioning he stated that on the previous day some of his friends had come to Chastoozerye to spend the weekend together or for business reasons. They had learnt that the Chechens were planning a violent confrontation and decided to stay with him. At about 6 p.m. one Chechen man had come to the sausage factory and told him that someone had shot at one of his compatriots, but Mr A.I. had denied any knowledge of this and the man had left. After 8 p.m. several cars containing Chechens had come to the sausage factory but Mr A.I. and the police who were there had prevented further violence. 31. During his second questioning Mr A.I. named several of the men who had come to the sausage factory on 18 May 2002, including his brother Mr D.I. – the factory owner – and Mr Ye.P. He confirmed that he had arranged a meeting with the Chechens on that day in order to “discuss their behaviour with them” and that he had invited his friends to attend the meeting “in order to support him”. His friends had arrived unarmed. At about 6 p.m. he had seen a group of men beating Mr U.B. in the courtyard of the sausage factory; he had intervened and stopped the beating. He did not know the men who had been beating Mr U.B. Several cars containing Chechens had then arrived and he and the police officers had intervened to prevent further violence. The Chechens had then left, taking Mr U.B. with them. 32. In June 2002 the police compiled a list of about 20 men and 6 vehicles that had come to Chastoozerye on the day in question. Most of the men were questioned in June and July 2002 and confirmed that they had come to Chastoozerye because they had “heard about problems involving Chechens”, but denied that they had taken part in attacks on the applicant or Mr U.B. 33. On 19 June 2002 Mr S.K. was questioned as a witness. He stated that he had been made aware of the conflict with the Chechens by Mr A.I. but that he had not planned to take part in the meeting arranged for 18 May 2002. On the evening of that day he had been driving his car along Marx Street when he had seen a man lying on the ground and several men standing around. One of them, brandishing a gun, had ordered him to take the wounded man to the sausage factory. Mr S.K. did not know these men and would not be able to identify them; he had then seen them continue to beat the man at the sausage factory and had left immediately. In July 2003 Mr S.K. was questioned again; he repeated his previous statements about the attack on the applicant. 34. On 25 June 2002 Mr Ye.P. was questioned as witness. He explained that on the day before 18 May 2002, Mr A.I. had called him and invited to come, with his friends, to a “rendez-vous” with Chechens in Chastoozerye. He then named several men who had come with him from Kurgan, and the vehicles in which they had travelled. He confirmed that he had had a baseball bat in the trunk of his car, and that their vehicle had not been inspected by police. Soon after 5 p.m. he had seen a large crowd at the sausage factory, many of them armed with rods and sticks. He had witnessed the crowd beating one Chechen but denied that he had taken part. 35. In July 2002 the applicant identified four men, including Mr Ye.P., as the perpetrators of the attack. 36. A police officer from the Chastoozerye ROVD stated that on 18 May 2002 he had been manning a post on the road near the sausage factory. He and another police officer had searched vehicles for arms, but nothing had been found. 37. In June 2002 two other police officers confirmed that they had inspected a number of vehicles containing young “fit-looking” men which had arrived in Chastoozerye on 18 May 2002; no arms or other dangerous items had been found. Later at the sausage factory one police officer had seen Mr A.I. and Mr S.K. in the crowd; the latter had behaved in an aggressive manner and incited the crowd. 38. In June 2002 the investigators questioned about a dozen local residents. Some of them had seen the Moskvich car being driven by Mr S.K. in Marx Street. Others had been aware of the “tensions” with the Chechens and of the “rendezvous” on 18 May 2002. No one had witnessed the attack on the applicant. 39. On 18 and 19 May 2002 the investigators searched Marx Street and collected cartridges from airguns and pellets. Pellets were also extracted from the applicant’s wounds. 40. On 19 May 2002 the premises of the sausage factory were searched, but nothing of relevance was found. 41. On 19 May 2002 the police compiled a list of twelve vehicles present in Chastoozerye on the day of the incident, and of their owners. 42. On 19 May 2002 the police examined the place in the forest where the group of Chechen men had gathered in the evening of 18 May 2002. There they collected metal rods and pipes, wooden sticks, bottles containing inflammable liquid (gasoline), knives, one hand pistol and one hunting gun. On the same day searches were carried out of the houses of Mr S.-A.B. and another Chechen resident in Chastoozerye. A separate criminal investigation was opened on 20 May 2002. Its outcome is not known. 43. In their observations of July 2012 the Government, without citing or appending any documents from the criminal investigation, also stated that six hunting guns had been collected from persons who had come to Chatoozerye upon Mr A.I.’s invitation. The ballistic expert reports had not linked any of these weapons to the cartridges collected at the site. 44. On 13 June 2002 the district prosecutor’s office decided not to bring charges of incitement to racially motivated hatred (Article 282 of the Criminal Code) against Mr. A.I. on account of lack of evidence of a criminal act. 45. On 28 June 2002, pursuant to the applicant’s complaint, that decision was quashed by the Kurgan Region prosecutor’s office. 46. On 12 July 2002 the district prosecutor’s office again ruled not to open a criminal investigation against Mr. A.I. 47. In parallel to these proceedings, on 13 June 2002 the district prosecutor’s office ruled not to charge Mr. S.K. and Mr. A.I. with incitement to racially motivated hatred on account of lack of evidence of a criminal act. On 26 June 2002 that decision was quashed by the Kurgan Region prosecutor’s office and the case was remitted to the district prosecutor’s office. 48. In the new round of proceedings, the investigator questioned the applicant, who confirmed his previous statements about Mr. S.K.’s and Mr. A.I.’s roles in the events. Several residents of Chastoozerye denied that they had been called on to take part in the “disturbances” against the Chechens. Several of the men who had gathered at the sausage factory on 18 May 2002 denied that they had been invited there by anyone. The head of the district administration confirmed that he had seen RNE flyers prior to 18 May 2002, but stated that he had been unaware of their provenance and had not considered them to contain incitements to ethnic violence. On 6 August 2002 the district prosecutor’s office again ruled to close the criminal proceedings against Mr. S.K. and Mr. A.I. for lack of evidence of a crime. 49. On 16 September 2002 that decision was quashed. In the new round of proceedings, the investigator additionally questioned several men who had gathered on 18 May 2002 at the sausage factory; all of them stated that they regularly came to Chastoozerye at Mr. A.I.’s invitation to spend weekends together and that they had not been aware of any incitements to ethnic violence. They had not carried or seen any items which could serve as weapons, such as metal rods or baseball bats, and had not seen any RNE flyers on the factory premises. On 1 October 2002 the district prosecutor’s office ruled not to bring charges against the two men. That decision appears not to have been appealed against. 50. On 12 November 2004 the investigator of the Kurgan Region Police Department ruled not to open criminal proceedings against persons unknown. The decision was taken in response to a letter from the applicant’s representative claiming that the applicant’s injuries had been caused in the context of incitement to ethnic hatred. The decision referred to pending criminal investigation no. 96348 and the absence of information on the alleged perpetrators of that crime. It also referred to the fact that no charges had been brought under Article 282 of the Criminal Code (incitement to ethnic or religious hatred) in the entire Kurgan Region in 2002-2004. It appears that the decision was not appealed against. 51. On 14 June 2002 the Chastoozerye district prosecutor’s office decided not to open a criminal investigation into the actions of the SOBR servicemen. The decision referred to the conclusions of the preliminary inquiry, according to which the actions of the police officers had been lawful; no one had sought medical help on 19 or 20 May 2002 in relation to police violence; no individual complaints about police actions had been lodged between 19 May and 12 June 2002. 52. On 28 June 2002 the decision was quashed by the Kurgan Region prosecutor’s office. 53. On 12 July 2002 the district prosecutor’s office again decided not to open a criminal investigation concerning the police officers’ actions. 54. On several occasions the applicant and his representative attempted to lodge complaints with the courts under Article 125 of the Criminal Procedural Code about failure by the prosecutors to act diligently. Some of the complaints were left without consideration owing to alleged procedural irregularities or because the applicant had failed to indicate the particular actions he was challenging. 55. On 30 May 2006 the Chastoozerye District Court dismissed the applicant’s complaint about the district prosecutor’s office’s failure to supervise the criminal investigation of case no. 96348. The court found that the prosecutor’s office had taken all possible steps in response to the applicant’s complaints and that the police investigator had taken all possible steps to identify the perpetrators of the crime, even if those steps had failed to produce a result. 56. The applicant lodged a complaint against that decision, and on 1 August 2006 the Kurgan Regional Court quashed the District Court’s ruling and closed the proceedings. It found that the complaint could not be examined by the court on its merits because the applicant had failed to indicate the specific decisions and actions which had infringed his rights. The District Court was not competent to replace the prosecutor’s office or to evaluate the latter’s work in supervising criminal investigations. The complaint had therefore to be dismissed without examination. 57. On 25 May 2012 the deputy prosecutor of the Kurgan Region quashed the decision of 10 August 2011 (see paragraph 17 above) suspending the investigation and forwarded the file to the investigative department of the Kurgan Region Ministry of the Interior. He pointed out that the exact circumstances of the events had not been established, including in relation to Mr U.B.’s allegation that Mr Ye.G. had taken a silver chain off his neck. Although Mr U.B. had identified Mr Ye.G. and Mr S.K. as the perpetrators of the crime, no steps had been taken to resolve the serious discrepancies between the statements of Mr S.K., Mr Ye.G. and Mr U.B. Nor had proper identification parades or confrontations between them been carried out. 58. The applicant submitted a number of copies of press articles and flyers concerning the events. A copy of a newspaper edited by the RNKA called Natsionalnaya Mysl (National Thought), issue no. 1(7) 2002, contained an article in which the events in Chastoozerye were described as a justified reaction by the local population, which was “enslaved” and “occupied” by “aliens from the Caucasus mountains”. The same newspaper contained an open letter to the Governor of the Kurgan Region signed by the head of the RNKA. It described the events in Chastoozerye as “the first call” of the “Russian protest” and invited the Governor to rely on the local Cossacks in order to maintain peace in the region. 59. Other publications described the events in Chastoozerye as a major ethnic clash between hundreds of armed men which had been dispersed by special police forces (Ural-MK in Kurgan, 20-27 June 2002, and Strana.ru, 21 June 2002). 60. An undated RNE flyer referred to the events in the following way: “... one of the predators was hit by a bullet, others were similarly rewarded. ... 500 armed men had come out for a ‘talk’ with [200] mountainous jew-predators ... [thus] the Orthodox Russian Dawn rises! Death to the villain! Hail the heroes! Russian rule for Russia!”