CASE OF SHOKKAROV AND OTHERS v. RUSSIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Pecuniary and non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Peer Lorenzen
6. The applicants are: (1) Mr Vakha Shokkarov (also spelled Vakhi Shokarov), who was born in 1941, (2) Ms Amani Shokkarova (also spelled Shokarova), who was born in 1939, (3) Ms Khava Shokkarova (also spelled Shokarova), who was born in 1964, and (4) Ms Zulay Tatsegova. The first and second applicants are the parents of Mr Visadi (also known as Murad) Shokkarov (also spelled Shokarov and Shakarov), who was born in 1972, and Mr Visita (also spelled Visit) Shokkarov, who was born in 1966. Visita Shokkarov was married to the third applicant; Visadi Shokkarov was married to the fourth applicant. At the material time the Shokkarovs were residing in the Satsita camp for internally displaced persons in Ordzhenikidzovskaya, Ingushetia. At some point later they moved back to Grozny, Chechnya, where they are currently residing. 7. At about 7 a.m. on 6 January 2003 a group of policemen from the Sunzhenskiy district department of the interior (ROVD) in Ingushetia arrived at the Satsita camp in four vehicles. They arrested Visadi Shokkarov and took him away without any explanation. 8. Later that day Visadi Shokkarov’s relatives came to the ROVD; the policemen told them that Visadi was detained in the police station. 9. On 21 January 2003 Visadi Shokkarov was charged with the aggravated murder of two officials from the Nadterechniy district administration in Chechnya. 10. On 22 January 2003 the Nadterechniy District Court authorised Visadi Shokkarov’s detention on remand until 20 March 2003, stating that there was a risk of his absconding from the authorities. 11. At some point the first applicant retained a lawyer to represent his son’s interests. On 27 and 31 January, as well as on 5 February 2003, the lawyer requested that he be allowed to contact Visadi Shokkarov, but to no avail. 12. On 2 February 2003 Visadi Shokkarov and his co-accused Mr V.B. were taken for the reconstruction of events to the site of the murder in the Nadterechniy district. They were in a car driven by Mr B., an officer of the Federal Security Service (FSB). Near Bena-Yurt (also spelled Beno-Yurt) in the Nadterechniy district the car fell into a pit and exploded. Visadi Shokkarov and Mr V.B. died, whereas officer B. survived. 13. On 10 February 2003 Visadi Shokkarov’s lawyer again requested the investigators to allow him to visit Visadi Shokkarov and was informed that his client had died. 14. On 3 February 2003 the Nadterechniy district prosecutor’s office (the Nadterechniy prosecutor’s office) ordered a post-mortem examination of Visadi Shokkarov’s corpse. The applicants were not informed about this decision. 15. Between 3 February and 1 March 2003 an expert of the Mozdok forensic bureau carried out the autopsy. According to the report, Visadi Shokkarov had died from blunt complex trauma to the head and chest, which had been probably inflicted on him in the car crash. The expert also stated that the body had burned and charred after the death. 16. On 11 February 2003 Visadi Shokkarov’s lawyer informed the applicants about his client’s death. On the same date in the Mozdok town morgue the applicants collected a burnt and unidentifiable corpse without internal organs; they were told that it was Visadi Shokkarov’s body. 17. On 11 February 2003 the Mozdok forensic bureau issued a death certificate stating that Visadi Shokkarov had died on 2 February 2003 in Bena-Yurt as a result of “blunt complex trauma to the head and chest with subarachnoid haematoma, cerebral injury, cardiac rupture, incomplete separation of the lung, burning and charring of the corpse”. 18. On 16 June 2003 the Mozdok district prosecutor’s office in North Ossetia requested that the applicants collect Visadi Shokkarov’s body, which had been brought to the Mozdok morgue by Mr I., an investigator from the Nadterechniy prosecutor’s office, on 3 February 2003. On an unspecified date the applicants visited the Mozdok morgue, examined the corpse and concluded that it was not that of Visadi Shokkarov. 19. On 10 February 2003 the military prosecutor’s office of military unit no. 20111 (“the military prosecutor’s office”) instituted criminal proceedings against the FSB officer B., who had driven the exploded car, under Article 350 § 3 of the Russian Criminal Code (breach of rules on using a special vehicle causing two or more deaths). The case was assigned no. 46012. 20. On 18 February 2003 the military prosecutor’s office found that officer B. had lost control of the vehicle because Visadi Shokkarov had hit him and discontinued the proceedings against the officer for lack of corpus delicti. 21. On 10 September 2003 the applicants appealed against the decision of 18 February 2003 to the Sunzhenskiy District Court of Ingushetia, the Nadterechniy District Court in Chechnya and the Chechnya Supreme Court. They stated that Visadi Shokkarov’s self-incriminating statements and the confession to the murders had been made as a result of torture being applied to him and that the circumstances of his death in the car crash had not been effectively investigated. The applicants requested the courts to overrule the decision to terminate the investigation into the death of Visadi Shokkarov, to order the investigative authorities to carry out an effective investigation of his ill-treatment and death and to provide them and their representatives with access to the criminal case file. From the documents submitted to the Court it follows that all of the complaints were lodged by the first applicant, who provided the courts with his address at the Satsita camp in Ingushetia. 22. On 7 July 2004 the applicants’ representatives requested the Sunzhenskiy District Court of Ingushetia, the Nadterechniy District Court in Chechnya and the Chechnya Supreme Court to inform them of the outcome of the examination of the complaints they had lodged in September 2003. 23. On 4 August 2004 the Nadterechniy District Court informed the applicants’ representatives of the following: “... the Nadterechniy District Court is informing you that V.A. Shokkarov’s complaint against the law-enforcement agencies was examined and rejected on 6 October 2003. A copy of this decision was forwarded to the applicant’s address on 9 October 2003 under outgoing no. 2150.” According to the applicants, they neither participated in the examination of their complaint on 6 October 2003 nor received the copy of the court’s decision, since on an unspecified date in the autumn of 2003 they had had to leave the Satsita camp owing to the dismantling of the camp by the local authorities. Therefore, in October 2003 they had not resided at the address provided by them to the Nadterechniy District Court. The applicants did not submit to the Court any document confirming the dismantling of the camp in the autumn of 2003. 24. On 12 January 2005 the Sunzhenskiy District Court informed the applicant that “... on 23 October 2003 the District Court left V.A. Shokkarov’s complaint unexamined as the criminal case concerning [the death of] Visadi Shokkarov had been investigated by a prosecutor’s office in Chechnya. It was recommended that the applicant apply to the court where the relevant prosecutor’s office was situated.” 25. The applicants did not appeal against the decisions of the Nadterechniy and the Sunzhenskiy District Courts. 26. According to the applicants, no reply was received from the Chechnya Supreme Court to their request of 7 July 2003. The outcome of these proceedings remained unknown as the applicants did not lodge any further requests with the court. 27. On 22 January 2003 the Special Envoy of the Russian President in Chechnya for Rights and Freedoms (“the Envoy”), on behalf of the applicants, requested the Ingushetia prosecutor’s office to inform him of the whereabouts of Visadi and Visita Shokkarov and the grounds for their arrest. The letter stated that the two brothers had been detained by officers of the Sunzhenskiy ROVD on 6 January 2003, that Visadi had been arrested in the Satsita camp and that Visita had been arrested later on the same date on the premises of the ROVD. 28. On 10 February 2003 the Ingushetia prosecutor’s office replied to the Envoy as follows: “... on 6 January 2003 officers of the Sunzhenskiy ROVD, acting on instructions from the Nadterechniy district prosecutor’s office in Chechnya, arrested Mr Murad Shokarov (a.k.a. Visadi) on suspicion of murdering Mr Z. and Ms Kh. ... and took him to the Sunzhenskiy ROVD. Mr Visita Shokarov was taken to the ROVD together with Mr Shokarov. On the same day the two men were handed over to the head of the investigative unit of the Nadterechniy district prosecutor’s office Mr P. and officers of the Nadterechniy ROVD who accompanied him.” 29. Between February and June 2003 the authorities conducted a forensic examination of Visadi Shokkarov’s corpse and issued his death certificate (see paragraphs 15 and 17 above). 30. On 31 March 2003 the first applicant requested the Sunzhenskiy district prosecutor’s office (“the Sunzhenskiy prosecutor’s office”) and the Chechnya prosecutor’s office to conduct an investigation into Visadi Shokkarov’s arrest and death. 31. On 7 April 2003 the Chechnya prosecutor’s office informed the first applicant of the following: “On 20 January 2003 officers of the Nadterechniy district department of the Federal Security Service, together with officers of the Sunzhenskiy ROVD, acting on the basis of information concerning the murder of the head of the Nadterechniy district administration, arrested Mr V[isadi] Shokkarov. On 21 January 2003 he was charged [with a crime punishable] under Article 105 § 2 and Article 277 of the Russian Criminal Code; on 22 January 2003 his detention was authorised by a court.” The letter further mentioned that Visadi Shokkarov had partly confessed to the murder and described the circumstances of his death in the car crash. It also informed the applicants that the criminal proceedings against the FSB officer B. had been terminated for lack of corpus delicti. 32. On 30 April 2003 the Nadterechniy prosecutor’s office informed the applicants that Visadi Shokkarov’s death had been investigated by the military prosecutor’s office and that the applicants had already been informed of the outcome of that investigation. 33. On 7 August 2003 the Ingushetia prosecutor’s office informed the applicants’ representatives that on 6 January 2003 the ROVD police officers had arrested Visadi Shokkarov on the basis of a written instruction from the Nadterechniy prosecutor’s office. The letter further stated that Visita Shokkarov had also been arrested and that on the same date, 6 January 2003, the Shokkarov brothers had been handed over to the investigator from the Nadterechniy prosecutor’s office, Mr V.P., and the servicemen of the Nadterechniy ROVD. 34. On 15 August 2003 the Nadterechniy prosecutor’s office informed the applicants’ representatives that the military prosecutor’s office had terminated the criminal proceedings against the FSB officer B. for lack of corpus delicti. 35. On 5 September 2003 the first applicant complained to the Chechnya prosecutor’s office, the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”), the Prosecutor General’s office and the Chief Military Prosecutor’s office and requested to be provided with a copy of the decision of 18 February 2003 concerning the termination of the criminal proceedings for lack of corpus delicti. He stated that Visadi Shokkarov’s confession to the murders had been obtained under duress, that several attempts by his lawyer to meet Visadi in detention had been futile and that the circumstances of his death in the car crash had been suspicious. The applicant further requested that this decision be overruled, that the investigation of Visadi Shokkarov’s death be continued and that he and the applicants’ representatives be provided with access to the criminal case file. 36. On 10 September 2003 the applicants requested the Nadterechniy prosecutor’s office to provide them with copies of documents relating to the investigation of Visadi Shokkarov’s death. On the same date they appealed against the decision to discontinue the criminal investigation into Visadi Shokkarov’s death (see paragraph 21 above). 37. On 29 September 2003 the Nadterechniy prosecutor’s office informed the applicants’ representatives that the criminal case had been joined with another criminal case and transferred to the Chechnya Supreme Court on 7 April 2003. 38. On 18 January 2005 the Sunzhenskiy prosecutor’s office in Ingushetia informed the applicants of the following: “... based on the information received from the Sunzhenskiy ROVD and the statement obtained from one of the participants [in the arrest], it was established that on 6 January 2003, at the request of police officers from the Nadterechniy ROVD who had arrived with the investigator of the Nadterechniy district prosecutor’s office Mr V.P. and the head of the criminal search department of the Nadterechniy ROVD Mr S., the officers of Sunzhenskiy ROVD had assisted them in arresting the Shokkarov brothers, who had been suspected of killing of the head of the Nadterechniy district administration. After the arrest the Shokkarov brothers had been taken away by the officers of the Nadterechniy ROVD...” The letter further stated that the applicants could obtain additional information about the detention from the investigator Mr V.P. and the head of the criminal search department of the Nadterechniy ROVD, Mr S. 39. According to the Government, at the material time the Nadterechniy ROVD, the Nadterechniy prosecutor’s office and the Nadterechniy department of the FSB were situated next to each other in the same courtyard. 40. On 9 September 2002 the Shatoy district prosecutor’s office in Chechnya (“the Shatoy prosecutor’s office”) opened criminal case no. 65034 in connection with the murder of two officials from the Nadterechniy district administration. 41. On 20 January 2003, in the course of the investigation in criminal case no. 65034, the law-enforcement agencies arrested Visadi Shokkarov, who subsequently confessed to murdering the two officials from the Nadterechniy district administration. The Government stated that according to the detention record dated 20 January 2003, Visadi Shokkarov had been detained on 20 January, and not on 6 January 2003. 42. On 21 January 2003 Visadi Shokkarov was charged with the two murders and on 22 January 2003 the Nadterechniy District Court remanded him in custody. 43. On 2 February 2003 the FSB officers B., S. and P. were requested by the investigation to convey Visadi Shokkarov and his co-accused Mr V.B. to Bena-Yurt for the reconstruction of the crime. The reconstruction had been requested by Visadi Shokkarov and his co-accused. In the vicinity of the village Visadi Shokkarov hit the driver in the back of the neck. The latter lost control of the vehicle, and the car fell into an open pit, turned over and exploded. As a result, the servicemen managed to get out of the car, but Visadi Shokkarov and Mr V.B. remained inside and died. 44. On 28 March 2003 the Nadterechniy prosecutor’s office terminated the criminal investigation in case no. 65034 in respect of Visadi Shokkarov on account of his death. 45. On 10 February 2003 the military prosecutor’s office opened criminal case no. 34/34/0015-03D against the FSB officer B. under Article 350 § 3 of the Russian Criminal Code (breach of rules on using a special vehicle causing two or more deaths). 46. On 18 February 2003 the military prosecutor’s office discontinued the criminal proceedings against the officer for lack of corpus delicti. 47. On 18 February 2003 criminal case no. 34/34/0015-03D was transferred to the Nadterechniy prosecutor’s office, where it was assigned no. 46012. On 6 March 2003 the criminal case file was joined with criminal case no. 65034 under the joined number 65034. 48. On 23 October 2003 the Sunzhenskiy District Court of Ingushetia refused to examine the applicants’ appeal against the decision of 18 February 2003 for lack of territorial jurisdiction. The applicants failed to appeal against that decision. 49. The Government submitted that the applicants had not appealed against the decision of 18 February 2003 to any of the courts in Chechnya. 50. On 6 January 2003, while the applicants, their relatives and other residents of the Satsita camp were waiting outside the Sunzhenskiy ROVD building for news of Visadi Shokkarov following his arrest, two men in civilian clothes approached Visita Shokkarov. They asked his relatives to wait for Visita just for a few minutes and took him through the gates into the courtyard of the ROVD. The applicants have not seen him ever since. 51. On 24 March 2003 the first applicant requested the Sunzhenskiy prosecutor’s office in Ingushetia to institute an investigation into Visita Shokkarov’s disappearance. On 31 March 2003 the Sunzhenskiy prosecutor’s office forwarded the request to the Nadterechniy prosecutor’s office in Chechnya. 52. On 31 March 2003 the first applicant complained about the abduction of Visita Shokkarov and the death of Visadi Shokkarov to the Chechnya prosecutor’s office. The complaint was received by the office on 3 April 2003. 53. On 7 April 2003 the Chechnya prosecutor’s office informed the applicants that the criminal proceedings concerning the death of Visadi Shokkarov had been terminated on 18 February 2003 for lack of corpus delicti. The letter also stated that “... Visita Shokkarov, who had been detained with Visadi Shokkarov, was released by officers of the Nadterechniy FSB after a check ...” 54. On 30 April 2003 the Nadterechniy prosecutor’s office dismissed the first applicant’s complaint about the abduction of Visita Shokkarov, stating that Visita Shokkarov had been lawfully arrested in connection with criminal case no. 65034 (it appears that the investigators confused Visita Shokkarov with his brother Visadi). They also noted that “the military prosecutor’s office had opened an investigation into V.V. Shokkarov’s death” and that the applicant had been informed about its outcome. 55. On 7 August 2003 the Ingushetia prosecutor’s office informed the applicants’ representatives that on 6 January 2003 the ROVD police officers had arrested Visita Shokkarov along with his brother Visadi and that on the same date, 6 January 2003, the Shokkarov brothers had been handed over to the investigator of the Nadterechniy prosecutor’s office, Mr V.P., and the servicemen of the Nadterechniy ROVD from Chechnya, and that the subsequent whereabouts of the brothers were unknown to the Ingushetia prosecutor’s office (see paragraph 33 above). 56. On 9 August 2003 the Nadterechniy prosecutor’s office instituted an investigation into Visita Shokkarov’s disappearance under Article 126 § 1 of the Russian Criminal Code (kidnapping). The case was assigned no. 46037. The applicants were informed of the decision on 14 August 2003. 57. On 19 August 2003 the Nadterechniy prosecutor’s office granted the third applicant victim status in the criminal case. The decision stated that on 6 January 2003 Visita Shokkarov had been arrested along with his brother Visadi and taken to the Sunzhenskiy ROVD and subsequently to the village of Znamenskoye in the Nadterechniy district, and released the following day. However, Visita Shokkarov had not returned home and had gone missing. 58. On 27 September 2004 the Chechnya prosecutor’s office informed the third applicant that an investigation into Visita Shokkarov’s abduction was under way. 59. On an unspecified date the third applicant complained about the disappearance of Visita Shokkarov to the Mozdok district prosecutor’s office in North Ossetia. On 16 June 2003 the office informed her that Visita had not been detained in the Mozdok ROVD. 60. On 7 June 2003 the third applicant complained to the Envoy about the abduction of Visita Shokkarov. On 1 July 2003 this complaint was forwarded to the Chechnya prosecutor’s office and on 1 August 2003 it was received by the Nadterechniy prosecutor’s office. 61. On an unspecified date the Mozdok forensic bureau informed the investigators that on 3 February 2003 an investigator from the Nadterechniy prosecutor’s office had brought Visadi Shokkarov’s corpse to the morgue and requested the third applicant to collect it. It appears that the investigator had been confused and instead of stating that the corpse belonged to Visadi Shokkarov he had stated that it had belonged to Visita Shokkarov. 62. On 9 August 2003 the Nadterechniy prosecutor’s office opened criminal case no. 46037 (also referred to as no. 54043) under Article 126 § 1 of the Criminal Code (kidnapping) in connection with the abduction of Visita Shokkarov from Ordzhenikidzovskaya on 6 January 2003. 63. On 19 August 2003 the investigators granted the third applicant victim status in the criminal case and questioned her. The applicant stated that on 6 January 2003 her relative Visadi Shokkarov and another man had been taken from the camp in Ordzhenikidzovskaya by armed masked men to the Sunzhenskiy ROVD in Ingushetia. After that she, her husband Visita and other relatives had gone to the ROVD to find out the reasons for Visadi’s arrest. Near the ROVD her husband Visita had been approached by two men, who had come out of the ROVD building. They had taken Visita into the police station. The applicant had attempted to follow Visita, but she had been stopped at the entrance by the deputy head of the ROVD, Mr I.M., who had told her that Visita had been taken in for questioning and would be released shortly afterwards. The applicant had seen through a crack in the fence that her husband Visita and his brother Visadi had been put by police officers into a UAZ car and after that the car had driven away. After that the ROVD policemen had told her that Visita had been taken from the ROVD to Znamenskoye, in the Nadterechniy district, Chechnya, by representatives of the Chechnya FSB. On the seventh day after Visita’s abduction, the applicant and her relatives had gone to Znamenskoye, where the investigator of the Nadterechniy prosecutor’s office Mr V.P. had informed her, having been in touch with the local branch of the FSB, that on the third day after the arrest Visita Shokkarov had been released from the FSB and apparently had gone home. After that the applicant had requested information concerning Visita’s whereabouts at the Nadterechniy ROVD, where she had been informed that he had not been detained there. 64. On 21 August 2003 the investigators forwarded a number of information requests to various law-enforcement agencies in Chechnya, Ingushetia, Dagestan and the Stavropol region, asking for any information concerning Visita Shokkarov’s whereabouts. No pertinent information was received as a result. 65. On 25 August 2003 the investigators questioned the first applicant, who stated that on 6 January 2003 officers of the Sunzhenskiy ROVD had arrived in three UAZ vehicles and taken away his son Visadi Shokkarov. Immediately after that the applicant and his relatives had gone to the Sunzhenskiy ROVD, where the head of the ROVD had told him that Visadi had been suspected of murdering an official from the Nadterechniy district administration. Later that day, when the applicant had returned to the ROVD, he had seen the third applicant, who had been crying and waiting next to the police station. She had told him that the police officers had taken away her husband Visita. One of them, a certain “Magomed”, had told her that the police would soon release her husband. At about 4 p.m. on the same date, 6 January 2003, three UAZ cars had left the courtyard of the ROVD and driven away to an unknown destination. After that the head of the ROVD had told the applicant and his relatives that the Shokkarov brothers had been taken by investigator Mr V.P. from the Nadterechniy prosecutor’s office to the village of Znamenskoye in Chechnya. On 8 January 2003 the applicant had been informed by the Nadterechniy FSB that he could bring food and warm clothing for his detained sons. The applicant had brought some food and passed it on to the FSB officers. About five days later the third applicant had gone to Znamenskoye, where she had been told that Visita Shokkarov had been released three days after the arrest and that Visadi Shokkarov had continued to be detained on suspicion of killing the official. 66. On an unspecified date the Nadterechniy FSB informed the investigators that it had not arrested or detained Visita Shokkarov and that he had not been listed as a member of any illegal armed groups. 67. On 28 August 2003 the investigators questioned the investigator of the Nadterechniy prosecutor’s office Mr V.P., who stated he could not recall the relevant details of the criminal investigation owing to the passing of time, but stated that he had requested the local court to remand Visadi Shokkarov in custody and that he could not recall whether one or both brothers had been detained. 68. On 3 April 2006 (in the documents submitted the date was also indicated as 10 March 2008) the investigators questioned police officer S.G. of the Nadterechniy ROVD, who stated that Visita Shokkarov had not been brought to the ROVD and that the police had not conducted any checks in respect of him. 69. On 7 and 11 or 12 April 2006 the investigators questioned Mr V.Tch. and Mr Kh.T., both of whom had been officers of the Nadterechniy ROVD at the material time. Their statements were similar to the one given by officer S.G. 70. On 12 April 2006 (in the documents submitted the date was also indicated as 24 March 2006) the investigators examined the registration log of detainees in the Nadterechniy ROVD for the period between 31 October 2002 and 3 July 2003. As a result, it was established that during this period Visita Shokkarov had not been detained in the ROVD. 71. On 20 April 2006 the investigators suspended the investigation in the criminal case owing to the failure to identify those responsible for Visita Shokkarov’s abduction. The third applicant was informed of that decision. 72. On 27 February 2008 the decision to suspend the investigation was overruled by the supervising prosecutor and the proceedings in the criminal case were resumed. 73. On 28 March 2008 the Nadterechniy ROVD informed the investigators that they had not arrested or detained the Shokkarov brothers. 74. On 19 May 2008 the Nadterechniy department of the FSB informed the investigators that no special operations had been conducted against the Shokkarov brothers in Ingushetia. 75. Despite specific request by the Court the Government did not disclose most of the contents of the criminal case files opened in connection with the death of Visadi Shokkarov and the abduction of Visita Shokkarov. The Government provided copies of documents from the criminal case files running to 561 pages; the vast majority of the documents concerned third persons and only a few were relevant to the applicants’ complaints. The Government stated that the investigation was in progress and that disclosure of the other documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information concerning witnesses or other participants in criminal proceedings. 76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, §§ 67-69, 10 May 2007).