Постановление Европейского суда по правам человека от 17.06.2010 «Дело Товсултанова (tovsultanova) против России» [англ.]

Город принятия

(Application No. 26974/06)
(Strasbourg, 17.VI.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tovsultanova v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 27 May 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 26974/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Ms Liza Tovsultanova ("the applicant"), on 21 May 2006.

2. The applicant was represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 2 March 2009 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

4. The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government's objection, the Court dismissed it.

I. The circumstances of the case
5. The applicant was born in 1951. She is the mother of Said-Magamed (also spelled as Said-Magomed) Tovsultanov, who was born in 1970. At the material time she lived in Sleptsovskaya (also known as Ordzhenikidzovskaya), Ingushetia. Currently she lives in Katar-Yurt (also spelled as Katyr-Yurt), Chechnya.

A. Disappearance of the applicant's son
1. The applicant's account
6. The applicant did not witness the disappearance of Said-Magamed Tovsultanov. The account below is based on the anonymous statements of third persons summarised by the applicant and submitted by her to the Court.

7. In September 1999, before the beginning of the large-scale military operations in Chechnya, the applicant and Said-Magamed Tovsultanov moved from Katar-Yurt, Chechnya, to the village of Sleptsovskaya in Ingushetia. The applicant and her son, who were registered as forced migrants in the village, stayed with their relatives, the family of Ms Zh.S. In 2002 the applicant returned to Katar-Yurt, whereas her son Said-Magamed Tovsultanov stayed on in Sleptsovskaya with their relatives.

8. On 14 June 2004 (in the submitted documents the date was also referred to as 13 June 2004) the applicant was at home in Katar-Yurt. At about 3 p.m. a woman came to her house and told her that her son had been abducted in Sleptsovskaya. The applicant immediately went to her relative's home in that village. The applicant and Mrs Zh.S. were in the yard when a woman named Roza, who was from Roshni-Chu in Chechnya, stopped by. She told the women that on 14 June 2004 she had been in the forced migrants' tent camp when one of her female acquaintances had told her that at about 1 p.m. on the same day a group of armed masked men in camouflage uniforms in five VAZ and UAZ cars had apprehended a young Chechen man in a white VAZ-2107 car with registration number C897 ME. The incident had taken place in the centre of Sleptsovskaya, on the corner of Pobeda and Rabochaya Streets. During the apprehension, right before he had been put in one of the cars, the man, who had been dressed in a white shirt, had managed to shout out to the bystanders that his name was Said-Magamed Tovsultanov and that he was from Katar-Yurt. After that the group of armed men had driven away with him and his car.

9. The applicant immediately went to the centre of Sleptsovskaya to obtain information about her son, but to no avail. On the following day she left for Katar-Yurt. A day later she went to Sleptsovskaya again. On the way there she got out of the vehicle at the crossroads in the vicinity of the village of Assinovskaya in Chechnya, next to the "Kavkaz" motorway. The applicant was standing there when she saw a convoy of five VAZ cars of different colours driving quickly on the motorway from the direction of the "Kavkaz" checkpoint located on the border of Chechnya and Ingushetia. A white VAZ-2107 car without a registration number was in the middle of it.

10. When the convoy was passing by the applicant, she saw that in one of the cars a man in white shirt moved towards the car window. The applicant recognised the man as her son Said-Magamed Tovsultanov.

11. Immediately after that the applicant boarded a bus and went to Sleptsovskaya through the "Kavkaz" checkpoint. On her way there, before the checkpoint, she saw a black velvet pillow on the ground. The applicant recognised it at once as the pillow that had belonged to her son Said-Magamed Tovsultanov, who had used it as a seat cushion in his car. The applicant thought that the men who had driven by her in the convoy must have thrown the cushion out of her son's car.

2. Information submitted by the Government
12. The Government did not challenge the facts as presented by the applicant. At the same time they submitted that she had not witnessed the events and had obtained the information from third persons, that the body of Said-Magamed Tovsultanov had not been found and that the involvement of State representatives in his abduction and death had not been established.

B. The search for Said-Magamed Tovsultanov
and the investigation
1. The applicant's account
13. With the help of her relatives, the applicant contacted, both in person and in writing, various official bodies, such as the Russian President, the Chechen administration, departments of the interior and prosecutors' offices at different levels, asking for help in establishing the whereabouts of Said-Magamed Tovsultanov. She retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the local prosecutor's office. The relevant information is summarised below.

14. The applicant did not retain copies of her written complaints lodged with various State authorities from the middle of June 2004 to the beginning of April 2005.

15. On 22, 25 April 2005 and 27 January 2007 the Chechnya prosecutor's office forwarded the applicant's complaints about her son's abduction to the Ingushetia prosecutor's office for examination.

16. On 2 June 2005 the Sunzhenskiy district prosecutor's office (the district prosecutor's office) instituted an investigation into the disappearance of Said-Magamed Tovsultanov under Article 126 § 1 of the Criminal Code (kidnapping). The case file was assigned the number 05600034.

17. On 27 June 2005 the district prosecutor's office granted the applicant victim status in the criminal case.

18. On 2 November 2005 the district prosecutor's office suspended the investigation in the criminal case for failure to identify the perpetrators. The decision stated that the investigators had: questioned three neighbours of Said-Magamed Tovsultanov, as well as several salespersons from the kiosks located next to the place of his abduction; put Said-Magamed Tovsultanov's VAZ-2107 car on the search list; checked the registration log of the "Volga-20" border police checkpoint concerning the passage of vehicles on the day of the abduction; and forwarded information requests to various law-enforcement agencies in various regions of the Northern Caucasus. The applicant was informed about the suspension of the investigation on the same date.

19. On 29 January 2007 the Chechnya prosecutor's office informed the applicant that they had forwarded her complaint about the abduction to the Ingushetia prosecutor's office for examination.

20. On 7 February 2007 the Ingushetia prosecutor's office forwarded the applicant's complaint about her son's abduction to the district prosecutor's office.

21. On 14 February 2007 the district prosecutor's office informed the applicant that on 2 November 2005 they had suspended the investigation of her son's abduction.

22. On 12 February 2008 the applicant complained to the district prosecutor's office about the ineffectiveness of the investigation of the abduction and requested to be provided with access to the investigation file.

23. On 28 February 2008 the district prosecutor's office rejected the applicant's complaint, stating that under Articles 215 and 217 of the Criminal Procedure Code a victim in a criminal case could be provided with access to an investigation file only upon completion of the investigation.

24. On 15 April 2008 the applicant complained to the district prosecutor's office about the ineffectiveness of the investigation into her son's abduction and requested to be provided with access to the investigation file. She received no reply.

2. Information submitted by the Government
25. The Government submitted that on 14 February 2005 the applicant had complained about the abduction to the Russian President and not the competent law-enforcement authorities.

26. On 6 May 2005 the district prosecutor's office requested the Sunzhenskiy district department of the Federal Security Service (the FSB) and the Ingushetia FSB to inform them whether they had arrested or detained the applicant's son. According to their replies of 16 and 18 May 2005 no special operations in respect of Said-Magamed Tovsultanov had been conducted and no criminal proceedings had been pending against him.

27. On the same date the district prosecutor's office requested the Information Centre of the Ministry of the Interior (the MVD) to inform them whether Said-Magamed Tovsultanov was on the authorities' search list and whether they had information concerning his whereabouts.

28. On 1 June 2005 the applicant complained about her son's abduction to the district prosecutor's office.

29. On 2 June 2005 the district prosecutor's office initiated a criminal investigation of the abduction.

30. On 27 June 2005 the applicant was granted victim status in the criminal case and questioned. She stated that on 14 June 2004 a boy had come by her house in Katar-Yurt and handed her a note. According to the boy, this note had been given to him by someone from a passing bus who had asked him to pass it on to the relatives of Said-Magamed Tovsultanov. The applicant had gone straight to her son's flat in Sleptsovskaya and then to the scene of the incident, where she had learnt from eyewitnesses, who had been primarily teenagers and salespersons from the nearby kiosks, that her son, who had been driving a VAZ-2107 car, had been blocked by two UAZ vehicles and a VAZ-21099 car and been taken away by armed men in camouflage uniforms and masks. During the abduction he had managed to shout out his name, asking the onlookers to inform his family about the abduction. The applicant further stated that at the time she had not thought of writing down the names and addresses of the eyewitnesses, as she was illiterate. She had informed her relatives about the events and it appears that they complained to various law-enforcement bodies in Chechnya in their search for Said-Magamed Tovsultanov.

31. The Government pointed out that the applicant had not mentioned to the investigators any of the events which had taken place after her son's abduction in the vicinity of the "Kavkaz" checkpoint (see paragraphs 9 - 11 above).

32. On 15 June 2005 the investigators requested the Northern Ossetia FSB and the Chechnya FSB to inform them whether these agencies had arrested the applicant's son or opened criminal proceedings against him. On 28 June the Chechnya FSB replied that they had neither detained the applicant's son nor initiated criminal proceedings against him.

33. On 30 June 2005 the Sunzhenskiy district department of the interior (the ROVD) informed the investigators that they had not arrested or detained the applicant's son.

34. On an unspecified date in July 2005 the deputy Ingushetia prosecutor issued orders for the investigators in the criminal case. The relevant part of the document stated:

"...No investigation plan was prepared by the investigators who, in addition, also failed to examine a number of factual circumstances of the crime.

In order to conduct a full investigation of the criminal case I order the investigators to take the following measures:

- identify the woman who, according to L. Tovsultanova [the applicant], had eye witnessed the abduction and had told the boy about it... and question her about the events;

- identify and question the employees of the nearby kiosks who, according to the applicant, had witnessed the unidentified men in two UAZ cars and a VAZ-21099 detain S.-M. Tovsultanov, who had been driving a VAZ-2107, and take him away to an unknown destination;

- establish the registration numbers of the VAZ-2107 which had belonged to the abducted man and put this information on the search list;

- identify those who had been on duty on 14 June 2004 at the "Volga-20" checkpoint located on the border with Chechnya and question them about the circumstances of the case. In particular, it is necessary to find out whether a UAZ and VAZ-2107 carrying State officials had passed through the checkpoint on that date;

- examine the registration log of vehicles passing through the "Volga-20" checkpoint;

- inspect the household... where the abducted man had lived;

- in order to establish the whereabouts of S.-M. Tovsultanov, ...forward requests to various prosecutors' offices in [various regions] in the Northern Caucasus;

- forward information requests to [various...] detention centres in the Northern Caucasus and the military prosecutor's office of military unit No. 04062;

- forward information requests to various medical institutions in order to find out whether S.-M. Tovsultanov had applied for medical help and/or whether his body had been discovered;

- establish whether S.-M. Tovsultanov had purchased train or airplane tickets;

- receive