CASE OF MUTAYEVA v. RUSSIA
Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1948. She lives in the village of Assinovskaya, in the Chechen Republic. The applicant is the mother of Luiza Mutayeva, born in 1984. 6. The applicant, with her husband and two daughters, Luiza and Madina, lived at 60 Bershchanskaya Street in the village of Assinovskaya, in the Achkhoy-Martanovskiy district (in the submitted documents the district is also referred to as Sunzhenskiy district), in the Chechen Republic. Their house was located near a local hospital. At the material time the village was under the firm control of the federal forces, which maintained manned checkpoints at the entry and exit points to and from the village. 7. In the night of 19 January 2004 (in the submitted documents the date is also referred to as 9 January 2004) the family was sleeping in their house at the above address. 8. At about 2.30 a.m. on 19 January 2004 the applicant and her family members were woken up by someone knocking at the entrance door. The applicant approached the door and asked in Chechen: “Who is it?” The answer was given in Russian: “Passport check”. When the applicant wondered why the passport check was being conducted so late at night, she was told: “You better open the door; we have an order!” The applicant opened the door and fifteen to twenty armed men in camouflage uniforms without insignia entered the house. All but five or six of the intruders were wearing masks. The applicant and her relatives noticed that the men without masks were of Slavic appearance. The intruders spoke unaccented Russian. The applicant inferred that they were Russian servicemen. 9. The servicemen asked the applicant whether there were any men in the house. The only man in the household was the applicant's husband, a disabled person with one leg. The servicemen checked the family's passports and returned them to the applicant. Then the unmasked servicemen said to their colleagues that they should leave the applicant's house as no men were to be found there. However, one of the masked servicemen told them that they should search the house. The servicemen searched the house, turning everything upside down. It appears that they did not find anything of interest to them other than a few video cassettes which they took away. 10. Having searched the house, the servicemen ordered the applicant's daughters, Luiza and Madina, to put on warm clothing as they were being taken to the vehicles for questioning. The applicant's younger daughter, fifteen-year old Madina, started crying. One of the masked servicemen told her: “Do not be afraid; we will just question you and will let you go. I promise that nothing will happen to you.” Before leaving the house, Luiza Mutayeva insisted that she should be the only one to go for questioning. The servicemen let Madina stay in the house; they took Luiza outside to the vehicles. 11. The applicant managed to run outside and saw that Luiza Mutayeva was handcuffed and was standing next to a white GAZ minivan. Beside the minivan the applicant saw a white VAZ-2107, two grey UAZ vehicles, two military all-terrain UAZ vehicles (“таблетка”) and a grey VAZ-2109 vehicle, which were all parked around the applicant's house. The vehicles did not have number plates. According to the applicant, further vehicles belonging to the intruders were parked near her house but she was unable to recall their models or their colour. The applicant shouted at the servicemen and asked them to take her for questioning with her daughter. In response they pushed her away. Luiza Mutayeva was put into the GAZ minivan and the intruders drove away. 12. A number of people witnessed the abduction of Luiza Mutayeva. In particular, M.K., who was a patient in the hospital across the street, was woken up by shouting coming from the applicant's courtyard and rushed outside. She saw that the applicant's house was surrounded by armed men in masks and camouflage uniforms. The men did not allow her to approach and pushed her back into the hospital. While they were doing so, she saw them take Luiza Mutayeva away. 13. At about 3 a.m. on 19 January 2004 the applicant's neighbours, B.M. and S.B., were woken up by the noise of armoured vehicles and the applicant's shouting and saw armoured and other vehicles stationed at the street. B.M. and S.B. were afraid to approach the persons in camouflage uniforms and masks because they were armed. Another neighbour, Yu.D., who was woken up by a woman's shouting at about 3 a.m. on 19 January 2004, got outside and saw armoured and other vehicles parked on the street at the applicant's house; women at the entry gate to the applicant's house were shouting at several men wearing camouflage uniforms and masks. Afraid of the camouflaged men because of their weapons, Yu.D. returned home. When it was quiet he went to see the applicant and learnt from her that Luiza Mutayeva had been kidnapped. 14. The applicant has had no news of Luiza Mutayeva since 19 January 2004. 15. The description of the events above is based on the applicant's application form and written statements by M.K., B.M., S.B. and Yu.D., made on 19 October 2005. 16. The Government submitted that on 19 January 2004 Luiza Mutayeva had been abducted by unidentified persons. 17. On the morning of 19 January 2004 the applicant complained about her daughter's abduction to a number of law-enforcement agencies in Achkhoy-Martan. In particular, she complained to the Achkhoy-Martan District Department of the Interior (the ROVD), to a local department of the Federal Security Service (the FSB) and the security service of the Chechen President. The authorities denied having any information about the whereabouts of the applicant's daughter. However, unspecified officers from the security service of the Chechen President suggested to the applicant that her daughter had most likely been abducted by officers of the FSB Special Forces from Khankala, Chechnya. 18. The applicant also complained about the abduction of Luiza Mutayeva to T., head of the local administration. The latter also suggested that her daughter had been probably taken to Khankala. 19. Every day between 19 and 26 January 2004 the applicant went in person to a number of State authorities in Achkhoy-Martan, trying to obtain information concerning her daughter's whereabouts. It appears that her attempts produced no results. 20. The applicant also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders' offices and prosecutors' offices at different levels, describing in detail the circumstances of Luiza Mutayeva's abduction and asking for help in establishing her whereabouts. The applicant retained copies of a number of those letters and submitted them to the Court. An official investigation was opened by the local prosecutor's office. The relevant information is summarised below. 21. On 27 April 2004 the prosecutor's office of the Achkhoy-Martanovskiy district (“the district prosecutor's office”) instituted an investigation into the abduction of Luiza Mutayeva under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given number 49516. It does not appear that the applicant was informed about the decision. 22. By a decision of 28 April 2004 the district prosecutor's office granted the applicant victim status in connection with criminal case no. 49516. The decision stated, among other things, that at about 2.30 a.m. on 19 January 2004 about fifteen unidentified armed men in camouflage uniforms and masks had arrived at the applicant's home at 60 Bershchanskaya Street in a GAZ minivan, a UAZ vehicle, two military all-terrain UAZ vehicles (“таблетка”), a VAZ-2109 and a VAZ-2107 and had taken Luiza Mutayeva to an unknown destination. The applicant was accordingly provided with a copy of the decision. 23. On 27 August 2004 the district prosecutor's office informed the applicant that on that date the investigation in criminal case no. 49516 had been suspended for failure to identify the perpetrators; the operational and search measures aimed at solving the crime were under way. 24. On 14 May 2005 the applicant's representatives from SRJI wrote to the district prosecutor's office, complaining about the lack of information concerning the investigation. They requested to be informed about its progress; the specific actions taken to solve the crime since the opening of the criminal case and during the eight months after the decision to suspend the investigation; the reasons for the suspension of the investigation, and the reasons for Luiza Mutayeva's arrest. They further requested to be informed whether the investigating authority had interviewed the witnesses of the abduction and had requested information from various remand centres on Luiza Mutayeva's eventual detention. Lastly, they submitted that the applicant had not been provided with the decision to open the investigation and requested that she be provided with a copy. 25. On 21 June 2005 the prosecutor's office of the Chechen Republic (“the republican prosecutor's office”) replied to the applicant's representatives that the district prosecutor's office had instituted an investigation into the abduction of Luiza Mutayeva and the applicant had been granted victim status in the criminal proceedings; the operational and search measures aimed at solving the crime were under way. The letter also stated that pursuant to Article 161 of the Code of Criminal Procedure any information about the investigation was confidential and was not to be disclosed. 26. On 20 July 2005 the applicant's representatives wrote to the republican prosecutor's office and to the Prosecutor General's office. Referring to the case-law of the European Court of Human Rights, they pointed out that the authorities' letter of 21 June 2005 had failed to provide the requested information or any plausible explanations for the authorities' failure to provide the applicant with copies of basic investigative decisions. The applicant's representatives repeated their request for information about the progress of the investigation and copies of those decisions. 27. On 17 August 2005 the Prosecutor General's office informed the applicant's representatives that their request of 20 July 2005 had been forwarded to the republican prosecutor's office for examination. 28. On 27 October 2005 the applicant wrote to the district prosecutor's office. In her letter she described the circumstances of her daughter's abduction by armed persons in camouflage uniforms and masks, who had arrived in “ordinary” and armoured vehicles and complained that she had had no information concerning the investigation. She pointed out that her numerous requests to various State authorities had failed to produce any results and requested, among other things, to be provided with the following information: the number of the criminal case opened in connection with the abduction of Luiza Mutayeva; the prosecutor's office and the name of the person in charge of the investigation; the investigative measures taken by the authorities; whether witnesses to the abduction had been questioned by the investigation; whether the investigation had been suspended; whether the investigation had established how a convoy of military and civil vehicles with the abducted Luiza Mutayeva had managed to drive through the numerous Russian federal forces checkpoints located in the Achkhoy-Martanovskiy district and, in particular, on the road to and from the village of Assinovskaya; whether the investigation had examined the theory of possible implication of Russian servicemen or representatives of Russian special forces in the abduction of Luiza Mutayeva and whether the authorities had obtained information from various detention centres in Chechnya concerning her eventual detention. Lastly, she requested to be provided with the decision to suspend the investigation, which the authorities had not sent to her. 29. On 28 October 2005 the district prosecutor's office replied to the applicant. The letter stated that on 27 April 2004 the district prosecutor's office had opened criminal case no. 49516 into the abduction of Luiza Mutayeva and that the investigation had undertaken the following measures: examination of the crime scene; the applicant had been granted victim status; an unspecified number of the applicant's relatives, acquaintances and neighbours had been interviewed; unspecified investigative measures had been undertaken in collaboration with a number of other law-enforcement agencies; instructions had been given to the ROVD to conduct operational and search measures; the district prosecutor had issued instructions aimed at solving the crime. According to the letter, the investigation had been examining the thesis of possible involvement of servicemen or members of special forces in the crime. In addition, the investigation was examining the theory that Luiza Mutayeva had been kidnapped for ransom. Finally, the letter stated that the above measures had failed to produce any results and on 27 August 2004 the investigation in criminal case no. 49516 had been suspended for failure to establish the identity of the perpetrators. 30. On 13 June 2006 the applicant's representatives wrote to the republican prosecutor's office. Referring to the case-law of the European Court of Human Rights, they complained about the lack of information concerning the investigation into the abduction of the applicant's daughter and pointed out that the applicant had not received copies of the decisions to open the criminal case and to grant her the victim status in the criminal proceedings. The letter requested the authorities to provide the applicant with the following information: the status of the criminal investigation; the reasons for Luiza Mutayeva's abduction; whether witnesses to the abduction had been questioned by the authorities; measures undertaken by the investigation between 21 June 2005 and 13 June 2006 and whether the authorities had carried out an examination of detention centres in the region to establish the whereabouts of the applicant's daughter. Finally, the letter requested that the applicant be provided with copies of basic investigative decisions, including the one granting the applicant victim status in the criminal case. 31. On 17 June 2006 the republican prosecutor's office forwarded the request of the applicant's representatives to the district prosecutor's office for examination. 32. On 3 July 2006 the republican prosecutor's office informed the applicant's representatives that they had examined their request. According to the letter, the investigation had been undertaking measures aimed at solving the crime. Referring to unspecified provisions of Russian legislation the letter stated that copies of basic investigative decisions could not be provided to the applicant's representatives; under Article 42 § 13 only the applicant was entitled to receive in person copies of the decisions concerning opening of the criminal proceedings, grant of the victim status and suspension of the investigation. 33. On 20 April 2004 the district prosecutor's office received from the NGO Memorial information concerning the abduction of Luiza Mutayeva. 34. On 27 April 2004 the district prosecutor's office launched an investigation into the abduction of Luiza Mutayeva under Article 126 § 2 of the Criminal Code (aggravated kidnapping). 35. On 28 April 2004 the district prosecutor's office requested prosecutor's offices of various levels, departments of the interior in the Chechen Republic and the Criminal Police of the Temporary Operational Group of Authorities and Departments of the Ministry of the Interior of the Russian Federation in the Caucasus Region (“Служба Криминальной милиции МВД Временной оперативной группировки органов и подразделений МВД в Северо-Кавказском регионе”, “the CP”) to provide information on whether Luiza Mutayeva had been arrested. From the replies of those State authorities it appeared that the applicant's daughter was not being held in the ROVDs of the Chechen Republic; she had not applied to medical institutions for assistance; there were no compromising materials (“компрометирующий материал”) on her. 36. According to a reply from the deputy head of CP, that authority had not carried out any special operations in Assinovskaya on 19 January 2004; Luiza Mutayeva had not been taken to any penal institutions in the North Caucasus Region. 37. On 28 April 2004 the applicant was granted victim status in criminal case no. 49516 and her procedural rights and obligations were explained to her. 38. Being interviewed as a victim on 28 April 2004, the applicant submitted, among other things, that on 19 January 2004 unidentified persons had told her to open the door for an identity check. Subsequently, several armed men in camouflage uniforms and masks burst into the house. They had asked the applicant in Russian where the men were. The applicant had pointed at her husband, explaining that he was the only man in the household. The intruders had checked the family members' identity papers and told the applicant's daughters to get dressed. Meanwhile the intruders had turned everything in the house upside down. They had told Luiza Mutayeva to follow them to their vehicle for questioning. When the applicant protested the armed men replied that they would question Luiza Mutayeva and then let her go. The applicant had wanted to follow her daughter outside but had been held in the house. Having nonetheless managed to get outside, she had seen Luiza Mutayeva, handcuffed, near a white GAZ minivan without number plates. The applicant had also seen about six or seven vehicles, including an UAZ vehicle, two UAZ military all-terrain vehicles (“таблетка”), a VAZ-2109 and a VAZ-2107 vehicle. Despite the applicant's attempts to stop them, the abductors had left with her daughter. The applicant also submitted that in December 2003, according to local custom, Luiza Mutayeva had been abducted for marriage by a man from Urus-Martan. She had only stayed with that man for two weeks. When the elders had come to the applicant to pay the bride-price and the family had learnt about Luiza's whereabouts, they had taken her back home. 39. The applicant's husband and daughter Madina, questioned on 28 April 2004, gave similar descriptions of the circumstances of Luiza Mutayeva's abduction. 40. B.A., the applicant's neighbour, interviewed as a witness on 28 June 2004, submitted that he had learnt from the applicant that at about 3 a.m. on 19 January 2004 about fifteen armed men in masks and camouflage uniforms had abducted Luiza Mutayeva from her parents' house in Assinovskaya. The intruders had arrived in a convoy of vehicles, including a Gazel minivan, several UAZ and VAZ-2107 and VAZ-2109 vehicles. 41. The applicant's neighbour, L.V., interviewed as a witness on an unspecified date, stated that during the night of 18-19 January 2004 she had heard several vehicles in the street. On 20 January 2004 she had learnt from the applicant about the abduction of Luiza Mutayeva by armed men in camouflage uniforms. 42. Ms L.G., interviewed as a witness on an unspecified date, submitted that she had learnt from fellow residents in Assinovskaya that on 19 January 2004 Luiza Mutayeva had been abducted by armed men in camouflage uniforms, who had arrived in a GAZ minivan and several UAZ and VAZ vehicles without number plates. Similar submissions had been made by the applicant's neighbours and acquaintances Kh.A., S.M., Kh.G., T.D., Kh.M., A.B., A.M., A.A., I.M., M.M., A.At., D.M., Kh.Yu., P.T., M.Me., L.A., A.Am., R.A., M.Kh., M.S, M.D., Z.B., M.T., B.B., Kh.D., F.D., R.Kh., A.Al., Kh.G., T.K., B.A., S.A., A.S., L.Ts., S.Am., M.T., Sh.A., R.Ts., M.A., B.Ts., who were interviewed as witnesses on unspecified dates. 43. According to replies from the Operational and Search Bureau of the North Caucasus operational department of the Main Directorate of the Ministry of the Interior of the Russian Federation in the South Federal Circuit (“Оперативно-Розыскное Бюро Северо-Кавказского управления Главного управления МВД РФ по Южному федеральному округу”) and the FSB department in the Chechen Republic, those authorities had not arrested Luiza Mutayeva and had no compromising materials on her. 44. On 1 May 2004 the military prosecutor of military unit no. 20102 was instructed to verify the following information: whether federal troops had carried out a special operation in Assinovskaya on 19 January 2004; whether they had arrested Luiza Mutayeva, and whether the military units stationed in the Achkhoy-Martan district and the Khankala settlement were equipped with GAZ minivans, UAZ, VAZ-2109 and VAZ-2107 vehicles. According to the military prosecutor's reply dated 22 June 2004, federal forces had not carried out any special operations in the village of Assinovskaya on 19 January 2004 and had not arrested Luiza Mutayeva. The military forces in question were equipped with GAZ minivans, UAZ and VAZ-2107 and VAZ-2109 vehicles. However, in the absence of information about their number plates it was impossible to establish which military unit owned the vehicles mentioned in the district prosecutor's office' request for information. 45. On 1 May 2004 heads of unspecified remand prisons in Stavropol, Nalchik, Chernokozovo, Nazran and Pyatigorsk were requested to provide information as to whether Luiza Mutayeva had been detained in those facilities. No relevant information was provided by those persons. 46. On 3 May 2004 the district prosecutor's office requested the military commander's office of the Achkhoy-Martan district, the Ministry of the Interior of the Chechen Republic, the Ministry of the Interior internal troops office in the North Caucasus Circuit, FSB departments in the Chechen Republic, Ingushetiya, North Ossetia-Alania and Dagestan, and the ROVD and police offices of the Dagestan and Kabardino-Balkariya Republics, to find out whether those State authorities had carried out special operations in Assinovskaya on 19 January 2004 and had arrested Luiza Mutayeva. No relevant information had been received from those State bodies. 47. The investigation in criminal case no. 49516 had been suspended on numerous occasions for failure to identify the culprits and reopened to check the information obtained as a result of operational and search measures. 48. The investigation in case no. 49516 is pending. 49. Despite a specific request by the Court the Government did not disclose most of the contents of criminal file no. 49516, providing only copies of the following documents: letter of 20 April 2004 by the Achkhoy-Martan deputy prosecutor, addressed to the head of the ROVD and requesting the latter to verify the information on the abduction of Luiza Mutayeva, submitted by the Memorial NGO on an unspecified date; a report by a police officer of the ROVD, dated 25 April 2004 to the effect that there were indications that a crime had been committed against Luiza Mutayeva; records of interviews with the applicant, her husband and her daughter Madina, dated 28 April 2004 and a record of an interview with B.A., dated 28 June 2004; a reply from the military prosecutor's office of military unit no. 20102 dated 22 June 2004; replies from various State authorities to the effect they had not carried out special operations in Assinovskaya on 19 January 2004, had not arrested Luiza Mutayeva, had not held her in detention and had no compromising materials on her or information on her whereabouts. 50. The Government submitted 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 on personal data concerning witnesses and other participants in the criminal proceedings. 51. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).