CASE OF DZHABRAILOVA v. RUSSIA
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 5 - Right to liberty and security
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
7. The applicant was born in 1944 and lives in the village of Goyty in Urus-Martan District in the Chechen Republic. 8. The applicant is the mother of Mr Khanpasha Lechayevich Dzhabrailov, born in 1976. At the material time the applicant, Mr Khanpasha Dzhabrailov, his wife and their three children lived at 24 Shamov Street, Goyty village. 9. The account below is based on eyewitness statements of the applicant and her daughter, Ms Raisa Dzhabrailova. 10. According to the applicant, the village of Goyty was under the federal forces’ control from December 1999. The road leading to and from the village was blocked by federal checkpoints. 11. On 10 April 2003 at around 4 a.m. a khaki UAZ vehicle, a grey UAZ off-road vehicle («таблетка») and a grey bus with a blue stripe arrived at the Dzhabrailovs’ house. Around twenty armed men in masks and camouflage uniforms got out of the vehicles; the applicant believed that they belonged to the Russian military because they spoke unaccented Russian and could move freely around the village during the curfew. 12. Around ten servicemen entered the house, woke the Dzhabrailovs and, threatening them with their machine guns, forced them to the floor. Then they seized Mr Khanpasha Dzhabrailov’s badge of an employee of a local human rights NGO, grabbed the young man and dragged him to the door. When the applicant and her daughter-in-law asked them where they intended to take Mr Khanpasha Dzhabrailov, the servicemen gave no clear answer but shouted at the women, using mostly swear words. They then blindfolded Mr Khanpasha Dzhabrailov and took him away. 13. Ms Raisa Dhzbrailova followed the servicemen and saw them put Mr Khanpasha Dzabrailov into the bus and leave in the direction of UrusMartan. 14. According to the Government, on 10 April 2003 at about 4 a.m. a group of at least ten unidentified persons in masks and camouflage uniforms armed with automatic firearms entered the house at 24 Shamov Street in Goyty village, abducted Mr Khanpasha Dzhabrailov and took him away to an unknown destination. 15. On 11 April 2003 the applicant complained in writing about her son’s abduction to the military commander’s office of the Urus-Martan District. 16. On 27 April 2003 the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) instituted an investigation into Mr Khanpasha Dzhabrailov’s disappearance under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 34051. 17. On 30 April 2003 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) forwarded the applicant’s complaint about her son’s disappearance to the district prosecutor’s office. 18. On 27 June 2003 the district prosecutor’s office stayed the investigation for failure to identify those responsible. 19. On 10 June (or September) 2003 the military commander’s office of Urus-Martan District informed the applicant in reply to her complaint of 11 April 2003 (see paragraph 15 above) that they had carried out an internal inquiry which had not established Mr Khanpasha Dzhabrailov’s whereabouts or the identities of those who had abducted him. They also assured the applicant that they would continue searching for her son. 20. On 10 September 2003 the district prosecutor’s office informed the applicant that they had stayed the investigation in case no. 34051 on 27 June 2003 and advised her that she had the opportunity to appeal against that decision. 21. On 30 September 2003 the department of the interior of Urus-Martan District informed the applicant that since 27 May 2003 they had been carrying out search activities in relation to the kidnapping of Mr Khanpasha Dzhabrailov. 22. On 9 December 2003 the republican prosecutor’s office forwarded the applicant’s complaint about her son’s kidnapping to the district prosecutor’s office and ordered them to update her on the outcome of the investigation. On 17 December 2003 the district prosecutor’s office replied, without specifying the date, that the investigation into Mr Khanpasha Dzhabrailov’s kidnapping had been stayed. 23. On 28 January 2004 the district prosecutor’s office informed the applicant that the investigation in case no. 34051 had been suspended and invited her to provide the investigators with any new pieces of relevant information that she might obtain. 24. On 12 July 2004 the republican prosecutor’s office informed the applicant that investigative measures were being taken to resolve Mr Khanpasha Dzhabrailov’s kidnapping. 25. In a letter of 22 September 2005 the district prosecutor’s office informed the applicant’s daughter, Ms R. Dzhabrailova, that operational and search activity was under way in criminal case no. 34051 and that she would be notified if any important information emerged. 26. On 15 December 2005 the republican prosecutor’s office forwarded Ms R. Dzhabrailova’s complaint to the district prosecutor’s office with a request for more activity in the investigation, for all necessary measures to be taken to establish the whereabouts of the missing person and for Ms R. Dhzabrailova to be informed of the results of the examination of her complaint. 27. In a letter of 2 January 2006 the district prosecutor’s office informed the applicant’s daughter that operational and search activity was under way in criminal case no. 34051 opened on 27 April 2003, that during the preliminary investigation the authorities had taken the steps it was possible to take in the absence of the culprits, and that she would be notified if any important information emerged. 28. In a letter of 14 March 2008 the investigator in charge informed Mr L. Dzhabrailov that the investigation in case no. 34051 had been stayed on 4 March 2008 and that it was open to him to challenge this decision in accordance with Articles 124 and 125 of the Russian Code of Criminal Procedure. The letter did not specify the ground on which the investigation had been suspended. 29. According to the applicant, at some point she and her daughter spoke to an official of the district prosecutor’s office, who had allegedly said to them that Mr Khanpasha Dzhabrailov had confessed that he had been a participant in illegal armed groups. In the Government’s submission, in the criminal investigation file there was a police report, rather than Mr Khanpasha Dzhabrailov’s confession, stating that the applicant’s son had been a member of illegal armed groups and participated in operations under command of Salman Raduyev, one of the Chechen field commanders. According to the Government, however, this information had not been confirmed during the investigation. 30. In the applicant’s submission, since the beginning of 2008 the investigating authorities had visited her house on three occasions and questioned ten witnesses, all of whom had confirmed that Mr Khanpasha Dzhabrailov had been a law-abiding person and had had no enemies. 31. According to the Government, the investigation was repeatedly suspended owing to failure to establish those responsible and then reopened pursuant to supervising prosecutors’ orders, but had been unable to date to identify the alleged perpetrators. 32. In the Government’s submission, in course of the investigation the investigating authorities questioned the applicant as well as Mr L. Dzhabrailov and Ms R. Dhzabrailova, who confirmed the circumstances of the incident of 10 April 2003. In particular, the applicant had stated, as alleged by the Government, that on the date in question ten unidentified armed people in masks and camouflage uniforms had arrived at the Dzhabrailovs’ address in a grey UAZ off-road vehicle, a UAZ vehicle and a Gazel minibus, put Mr Khanpasha Dzhabrailov in the UAZ off-road vehicle and taken him away. According to the applicant, the other witnesses gave similar oral evidence. 33. According to the Government, the status of victim was granted to Ms Ya. Dhzbrailova – Mr Khanpasha Dzhabrailov’s wife – on 26 May 2003, and then to Mr L. Dzhabrailov on 15 June 2004. It does not appear that the applicant has ever been declared a victim in the case. 34. The Government also submitted that the investigating authorities sent enquiries to law-enforcement bodies in the Chechen Republic and further in the Northern Caucasus. According to the replies received by the investigators, no criminal proceedings had ever been brought against Mr Khanpasha Dzhabrailov, he had not been arrested by any of those lawenforcement agencies, nor kept in any detention centres, there was no information as to whether he had participated in illegal armed groups, he had not been found among unidentified corpses and had never applied for assistance to any medical institutions. The replies also stated that the federal forces had not conducted any special operation in the Urus-Martan District on 10 April 2003, and that Mr Khanpasha Dzhabrailov’s whereabouts could not be established despite steps taken to find him. 35. In the Government’s submission, at present investigative actions are being taken aiming at resolving the crime and punishing those responsible. 36. On 26 January 2004 the applicant complained to Urus-Martan Town Court that the investigators were taking no action in case no. 34051. She also requested that she be admitted to the proceedings as a victim and a civil party and be allowed access to the investigation file. It is unclear whether Urus-Martan Town Court replied to that complaint. 37. On 22 March 2004 the applicant complained to the Supreme Court of the Chechen Republic that the investigation was ineffective and requested that she be admitted to the proceedings as a victim and a civil party and be allowed access to the investigation file. 38. On 12 May 2004 the Supreme Court of the Chechen Republic forwarded the applicant’s complaint to the prosecutor’s office of the Chechen Republic to be examined in compliance with the subject matter jurisdiction rules. 39. It is unclear whether the applicant’s complaints have been examined by domestic courts. 40. In September 2007, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 34051 opened in connection with the abduction of the applicant’s son. The Government refused to submit any documents from the file, stating that under Article 161 of the Russian Code of Criminal Procedure disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. They also submitted that they had taken into account the possibility of requesting confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file the applicant or her representatives would not disclose these materials to the public. According to the Government, in the absence of any sanctions in respect of the applicant for the disclosure of confidential information and materials, there were no guarantees concerning compliance by the applicant with the Convention and the Rules of Court. 41. In December 2007 the Court reiterated its request. In reply, the Government again refused to produce any documents from the file for the aforementioned reasons. At the same time, they suggested that a Court delegation could be given access to the file in Russia, with the exception of those documents containing military and State secrets, and without the right to make copies of the case file. 42. For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007.