CASE OF DUDAYEVA v. RUSSIA
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra
5. The applicant was born in 1953 and lives in Grozny. 6. At the material time the applicant’s family lived in a dwelling comprising several houses in one courtyard in Shakhterova Street in the Staropromyslovskiy District of Grozny. The family included the applicant, her husband Mr Ali (also sometimes written as Alik) Dudayev, their sons, Mr Alikhan Dudayev and Mr Aslan Dudayev, Ms Amnat (also sometimes written as Aminat) Yakhyayeva, the wife of Mr Aslan Dudayev, and their five children, including Mr Adam Dudayev. The dwelling was located two blocks from the military commander’s office and the Staropromyslovskiy district police station (the ROVD). The area was under curfew. 7. On the night of 8 to 9 July 2002 (in the documents submitted the date was also referred to as the night between 7 and 8 July 2002) the applicant’s family were at home. The applicant was not there as she had left to spend the night at her relatives’ house in Grozny. 8. At about 2 a.m. on 9 July 2002 a group of about fifteen federal servicemen in uniforms and balaclavas, armed with automatic weapons, arrived in an armoured personnel carrier (APC) at the applicant’s home and unlocked the gate. They then started shooting and throwing grenades at the applicant’s house. 9. One of the applicant’s sons, Mr Alikhan Dudayev, who was a police officer, shot back for about half hour. After that he managed to leave the house and inform the police about the incident. Meanwhile, the applicant’s family lay on the floor to avoid being hit. The applicant’s grandson Adam was injured in the foot and lower back by a hand-grenade explosion. Another APC had arrived at the house in the meantime. 10. About two hours later the servicemen stormed the building. The applicant’s son Mr Aslan Dudayev stood up and started moving towards the servicemen, trying to warn them that there were women and children in the house. He was shot in the head before the eyes of his wife and five children. His body was moved to another room where he was shot in the head again. 11. The servicemen then took the applicant’s husband, Mr Ali Dudayev, outside and put him in the APC and drove off. The applicant’s husband has been missing ever since. 12. At the end of their special operation, the servicemen took the applicant’s family outside and set the house and family car on fire. 13. The applicant heard of the incident at about 4 a.m. and immediately went home. Upon her arrival, the applicant was told by relatives of the circumstances of her son’s killing and of her husband’s abduction. 14. In their submissions before the Court the Government did not contest the facts as presented by the applicant. However, they denied any involvement by State agents in the alleged killing of her son and the alleged disappearance of her husband. 15. In reply to a request from the Court to submit a copy of the documents reflecting the most important steps taken by the investigation into the events of the night between 8 and 9 July 2002, the Government furnished copies of criminal case files nos. 54042 and 54108, running up to 224 pages. The information submitted may be summarised as follows. 16. On 9 July 2002 a group of investigators from the Grozny prosecutor’s office examined the crime scene. As a result, they collected 408 spent cartridges, two bullets and a machine gun as evidence. 17. On 9 July 2002 the investigators questioned the applicant’s other son, Mr Alikhan Dudayev, a police officer at the ROVD at the time. He stated that at about 2 a.m. he had been at home and had been woken up by someone opening the outside gates. He had then heard a group of men running into the courtyard. He had asked in Chechen and then in Russian who the men were, but had received no reply. He had seen that one of them was in camouflage uniform and a balaclava and was armed with a machine gun. The witness had warned the man that he was a police officer. In reply, the man had opened fire and the witness shot back. Then the other intruders had opened fire with machine guns and grenades, in an attack of about twenty minutes. The witness had been wounded by grenade splinters in the hand and the torso. He had managed to leave the house and run into the neighbouring courtyard. Meanwhile, the shooting continued. The witness had seen five ROVD officers come out after they heard the gunfire. He had explained the situation to them and they had contacted the local military commander’s office and the ROVD by radio. The witness and the police officers had then heard an APC arriving at the witness’s house, after which the shooting had intensified and had lasted for another half an hour. Then the two APCs had driven off and the gunfire stopped. The police officers had left one of their colleagues with the witness and had gone to the house. Upon their return, they had told him that his brother and father had been taken away in the APCs. 18. On 9 July 2002 the investigators questioned the applicant’s neighbour, Mr V.M., who stated that on the night between 8 and 9 July 2002 he had been woken up by intense gunfire from automatic firearms at the applicant’s house, which had lasted for about fifty minutes. Then he had seen that the applicant’s house had been set on fire. A group of men had shouted and sworn in unaccented Russian and had then driven off in an APC. 19. On 9 July 2002 the investigators questioned another neighbour of the applicant, Mr A.T., who stated that the night before he had been woken up by intense gunfire at the applicant’s house. When he had tried to open the door to see what was going on, he had been ordered to stay inside or be shot. He had heard men swearing in Russian. 20. On 9 July 2002 the investigators questioned the applicant’s neighbours Mr V.A., Mr A.Ch. and Ms Ay.V., whose statements were similar to the one given by Mr V.M. Ms Ay.V. also stated that at about 3 a.m. someone had demanded that she open her door and let in the wife of Mr Aslan Dudayev, Ms Amnat Yakhyayeva, and her children, including the wounded Adam Dudayev. Ms Amnat Yakhyayeva told the witness that all of the men who had been in their house had been killed by the armed men who had arrived in the APC. On the following morning the witness had found a spent 5.45 mm calibre cartridge at her home, presumably from an automatic gun. 21. On 9 July 2002 the investigators also questioned the applicant’s neighbour, Mr A.I., whose statement was similar to those of the other neighbours (see paragraphs 18-20 above). In addition, he stated that the shooting at the Dudayevs’ house had continued for at least one and a half hours, that the armed men who had attacked the applicant’s family had been an organised group of fifteen to twenty men in camouflage uniforms, that they had sworn a lot in unaccented Russian and that they had driven in an APC. After the shooting he had gone to the house and found the walls and furniture riddled with bullet holes. He had also found the body of the applicant’s son, Aslan, who had been killed in the gunfire. 22. On the same date, 9 July 2002, the investigators also questioned the applicant’s neighbours Ms A.Ya., Ms B.Dzh. and Mr Ab.V., whose statements were similar to those of the other neighbours (see paragraphs 1821 above). 23. On 10 July 2002 the investigators opened criminal case no. 54042 (in the documents submitted the number was also referred to as 54048) in connection with the murder of the applicant’s son Mr Aslan Dudayev “by a group of fifteen to twenty armed men in camouflage uniforms and balaclavas who had arrived at the [the applicant’s] house”. 24. On 10 July 2002 the investigators ordered a forensic examination of the body of the applicant’s son Mr Aslan Dudayev. On 12 August 2002 the forensic experts concluded that he had died from two gunshot wounds to the head. 25. On 13 July 2002 the investigators ordered a forensic examination of the applicant’s grandson Adam Dudayev. On the same date the experts concluded that he had received a perforating shrapnel wound and a gunshot wound to the torso. 26. On 15 July 2002 the applicant’s son Mr Alikhan Dudayev complained of the incident to the Chechnya Prosecutor. In particular, he stated that on the night of the events he had warned the intruders that he was a police officer, but they had opened fire. After an hour and a half of intense shooting, the perpetrators had taken his brother, Mr Aslan Dudayev, outside and executed him in the courtyard. They had then wounded his nephew Adam, and had taken away his father, Mr Ali Dudayev. Neither the military commander’s office nor the nearby police station had reacted to the gunfire or intervened in any way. 27. On 18 July 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva, whose statement concerning the events was similar to that of her brother-in-law, Mr Alikhan Dudayev. In addition, she stated that her husband, Mr Aslan Dudayev, had been shot dead by the perpetrators, who had been in military uniform and had driven around in two APCs. The perpetrators had also taken away the applicant’s husband, Mr Ali Dudayev. 28. On 18 July 2002 the investigators questioned the applicant’s neighbours Mr A.V. and Mr M.Kh., whose statements were similar to the applicant’s account before the Court. In addition, Mr M.Kh. stated that after the shooting had stopped, several military vehicles had driven down their street in the direction of the applicant’s house. In the morning he had learned that the attack had been carried out by federal servicemen who had been driving in three APCs. 29. On 28 July 2002 the investigators ordered a ballistics report on the cartridges, bullets and machine gun collected from the crime scene on 9 July 2002. On 12 August 2002 the ballistic experts concluded that the machine gun had been set for single shots only and that the cartridges had come from several different Kalashnikov machine guns. 30. On 30 July 2002 the investigators granted the applicant’s son Mr Alikhan Dudayev, the status of victim in the criminal case and questioned him again. He reiterated his previous statement (see paragraph 17 above). 31. On 1 August 2002 the investigators granted the applicant’s daughter-in-law Ms Amnat Yakhyayeva the status of victim in the criminal case and questioned her. Her statement was similar to the one given on 18 July 2002 (see paragraph 27 above). In addition, she stated that the perpetrators had wounded her father-in-law and taken him away in their APC. 32. On 1 August 2002 the investigators questioned the applicant’s neighbour Ms Yakh. Dzh., whose statement about the events was similar to those given by the other neighbours and to the applicant’s account before the Court. 33. On 1 August 2002 the Chechnya Prosecutor wrote to the Chechnya Military Prosecutor asking for assistance in the investigation of the criminal case. The letter stated, inter alia, the following: “... The Chechnya prosecutor’s office is investigating a criminal case concerning the killing of Mr A. Dudayev and the wounding of Mr A.M. Dudayev by a group of unidentified persons armed with automatic rifles. One of the theories being pursued by the investigation is that of the involvement in the crime of military servicemen from the United Group Alignment (the UGA). In connection with this I request that an investigator from unit no. 20102 of the military prosecutor’s office be included in the investigators’ group to assist in solving the crime...” 34. On 21 August 2002 the Grozny military commander’s office informed the investigators that they had no information about the possible identity of the perpetrators and had not issued orders for a special operation at the applicant’s house. 35. On 10 September 2002 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this. 36. On 18 July 2003 the Staropromyslovskiy district prosecutor overruled the decision to suspend the investigation as unlawful and premature. He pointed out, among other things, that the investigators had failed to take basic steps, such as questioning the police officers whom Mr Alikhan Dudayev had met after his escape from the house or questioning the officers from the military commander’s office about the attackers’ use of APC military vehicles. The investigation resumed on the same day. 37. On an unspecified date in July 2003 the applicant complained of her son’s killing and her husband’s abduction to the Staropromyslovskiy district administration, which on 30 July 2003 forwarded her complaint to the investigators for examination. 38. On 10 August 2003 the investigators questioned the applicant’s neighbour Mr S.D., whose statement was similar to the applicant’s account before the Court. 39. On 18 August 2003 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this decision. 40. On 2 June 2009 the investigators again took up the criminal case on the orders of their superiors after receiving a request for information from the applicant. 41. On 5 July 2009 the investigators granted the applicant the status of a victim in the criminal case and questioned her. The applicant’s statement concerning the circumstances of her son’s killing and the abduction of her husband by military servicemen was similar to her account before the Court. In addition, she stated that even though the servicemen had known that her son Mr Alikhan Dudayev worked in the police, they had still opened fire. 42. On 7 July 2009 the investigators again suspended the investigation owing to a failure to identify the perpetrators. They informed the applicant of this decision. 43. The applicant appealed against that decision to the Staropromyslovskiy District Court in Grozny. On 29 September 2009 the court rejected the complaint because earlier that day the investigators had resumed the proceedings in the criminal case. 44. On 30 September 2009 the investigations in criminal cases 54042 and 54108 were joined under the number 54042 (see below). 45. On 4 October 2009 the investigators suspended the proceedings in the joint criminal case and informed the applicant. 46. On 9 November 2011 the investigation was resumed by the supervising body as having been unlawfully suspended and the investigators were ordered to take fresh steps. 47. On 15 December 2011 the investigators again suspended the proceedings in the joint criminal case. 48. The document submitted shows that the investigation is still pending. 49. On 11 December 2002 the Grozny prosecutor’s office opened criminal case no. 54108 in connection with the disappearance of the applicant’s husband, Mr Ali Dudayev. 50. On 20 December 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva and her son Mr Alikhan Dudayev. Their statements were similar to the applicant’s account before the Court. 51. On 24 and 25 December 2002 the investigators questioned the applicant’s neighbours Ms A.V. and Ms Z.I., whose statements were similar to the applicant’s account before the Court. In addition, they stated that the perpetrators of the abduction had been military servicemen. 52. On an unspecified date in February 2003 the investigators informed the applicant’s lawyer that they were taking search measures to establish the whereabouts of the applicant’s missing husband. 53. On 11 February 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was not informed. 54. On 18 June 2003 the investigation resumed and was again suspended on 18 August 2003. The applicant was not informed of either decision. 55. On 2 June 2009 the investigators resumed the investigation at the applicant’s request. 56. On 5 July 2009 she was granted victim status in the criminal case and questioned. Her statement was identical to the one given in criminal case no. 54042 (see paragraph 41 above). 57. On 7 July 2009 the investigators suspended the investigation on account of a failure to identify the perpetrators and informed the applicant. 58. The applicant appealed against the decision to suspend the proceedings to the Staropromyslovskiy District Court. On 29 September 2009 the court rejected the complaint because earlier on the same day the investigators had resumed proceedings in the criminal case. 59. On 30 September 2009 the investigation in the criminal case was joined with the investigation in criminal case 54042 under a joint number, 54042. 60. On 4 October 2009 the investigators again suspended the proceedings in the criminal case and informed the applicant. The document submitted shows that the joint investigation is still pending (see above). 75. The Government did not contest the essential facts underlying the application, but claimed that the applicant’s submission was unsubstantiated and that there was no evidence proving “beyond reasonable doubt” that State agents had been involved in the killing of the applicant’s son and the disappearance of her husband. In particular, they stated that the applicant herself had not witnessed the incident and that her application had been based “only on the suppositions of her relatives and neighbours” as none of the alleged witnesses had been able to say for sure that the man taken away in the APC by the abductors had been Mr Ali Dudayev. 76. The applicant submitted that it had been established “beyond reasonable doubt” that State agents had been involved in the attack on her house, which had resulted in the abduction of her husband and the killing of her son. In support of that assertion she referred to the ample evidence contained in her submissions and those of the Government, as well as the contents of the criminal investigation file. In particular, she pointed out that the perpetrators had arrived as a large group in APCs, which could only have been used by the federal forces, and that they had been able to move around freely during the curfew. The local military commander’s office had not reacted to the intense gunfire in the middle of the town during the curfew and the attack had taken place close to the local police station and lasted for more than an hour. She submitted that she had made a prima facie case that State agents had killed her son and abducted her husband and that the Government had failed to provide a plausible explanation for the events. In view of the absence of any news of her husband for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, she asked the Court to consider him dead. 77. The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012). 78. The Court has addressed a whole series of cases concerning allegations of disappearances and deaths of applicants’ relatives in Chechnya. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction or killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99, and Inderbiyeva v. Russia, no. 56765/08, § 96, 27 March 2012). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012, and Udayeva and Yusupova v. Russia, no. 36542/05, § 78, 21 December 2010). 79. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, 24 October 2013). 80. The Court has made findings of presumptions of deaths in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years. 81. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 21, 24 and 31 above) demonstrate that the applicant’s son Mr Aslan Dudayev was shot dead on the night of 8 to 9 July 2002 by a group of armed servicemen who drove around in APCs and opened fire on the applicant’s house during curfew hours. As a result of the two-hour attack, which took place in proximity of the military commander’s office and the police station, the applicant’s husband, Mr Ali Dudayev, was taken away by the same group of servicemen and has been missing since. In their submissions to the authorities, the applicant, her relatives and neighbours, pointed out that the killing of Mr Aslan Dudayev and the abduction of Mr Ali Dudayev had been carried out by the same group of perpetrators, who belonged to the federal forces (see paragraphs 27, 28 and 41 above). The investigators considered this version of events and took steps to verify this assertion (see paragraphs 33 and 36 above). In view of all the evidence in its possession, the Court finds that the applicant has presented a prima facie case that State agents killed her son and abducted her husband, who subsequently disappeared. 82. The Government neither contested the essential facts underlying the application nor provided a satisfactory and convincing explanation for the events in question. Bearing in mind the general principles set out above, the Court finds that Mr Aslan Dudayev was killed on the night of 8 to 9 July 2002 in the applicant’s house by a group of State agents and that her husband Mr Ali Dudayev was taken into custody on the same night by the same group of State agents. In view of the absence of any reliable news of the applicant’s husband since that date and the lifethreatening nature of such detention (see paragraph 79 above), the Court also finds that Mr Ali Dudayev may be presumed dead following his unacknowledged detention.