Постановление Европейского суда по правам человека от 23.07.2009 «Дело Муцаева (mutsayeva) против России» [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MUTSAYEVA v. RUSSIA
(Application No. 24297/05)
JUDGMENT*
(Strasbourg, 23.VII.2009)
____________________________
*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 Mutsayeva 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,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 2 July 2009,

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

PROCEDURE
1. The case originated in an application (No. 24297/05) 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 two Russian nationals, Ms Zara Mutsayeva (also known as Tepsurkayeva) and Mr Abdul-Khamit Tepsurkayev, on 9 June 2005.

2. Ms Zara Mutsayeva and Mr Abdul-Khamit Tepsurkayev were represented before the Court by lawyers of EHRAC/Memorial, a non-governmental organisation with offices in Moscow and London. Mr Abdul-Khamit Tepsurkayev died on 10 January 2006 and Ms Zara Mutsayeva ("the applicant") decided to pursue the application on behalf of herself and her disappeared son. The Russian Government ("the Government") were represented by their Agent, Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

4. On 11 March 2008 the Court decided 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.

5. 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.

THE FACTS
I. The circumstances of the case
6. The applicant was born in 1953; she and her husband Mr Abdul-Khamit Tepsurkayev were the parents of Khizir Tepsurkayev, who was born in 1980. The applicant lives in Urus-Martan.

7. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Disappearance of Khizir Tepsurkayev and subsequent events
1. The applicant's account
8. The applicant did not eyewitness the events. The description of the circumstances surrounding the abduction of Khizir Tepsurkayev is based on the witness accounts provided by the applicant, her husband, Mr A. Ruslanbek and Mr A. Alvi.

9. At about 9 a.m. on 27 August 2001 Khizir Tepsurkayev left his house in Urus-Martan to go to the Town Court, located in the centre of the town. He was supposed to meet there with the chairman of the court to discuss his future employment as a policeman and the chairman's guard. On his way to the centre, at the corner of Pervomaiskaya and Ordzhonikidzevskaya Streets, Khizir Tepsurkayev met his acquaintance A. Said-Arbi. The two men were talking when a VAZ-2107 car pulled up next to them. The driver, B. Mairbek, offered Khizir Tepsurkayev and A. Said-Arbi a lift with him to the centre of town. A. Said-Arbi declined the offer, explaining that he had left his passport at home and that he would need it because a sweeping operation was taking place in the centre. Khizir Tepsurkayev accepted the offer of a lift and got into the car. It appears that Khizir Tepsurkayev was not aware of the fact that B. Mairbek and his car were on the authorities' wanted list.

10. At about 10 a.m. the car approached the building of the former Military Commissariat on Kalanchakskaya Street. There was a group of Russian servicemen there from military unit No. 6779. The group consisted of policemen from Bashkortostan and was stationed on the eastern edge of Urus-Martan. One of Khizir Tepsurkayev's acquaintances, police officer A. Ruslanbek, was with the group. The commander of the group was officer V. Vasiliy. The group, accompanied by military cars and APCs (armoured personnel carriers), was participating in a special operation and was conducting identity checks. The servicemen were stopping and searching every car. Many people were in the area at the time, as the checks were being carried out next to the local farmers' market. When the soldiers stopped B. Mairbek's car, Khizir Tepsurkayev got out of the car and showed his identity documents. The officers checked them and gave them back. At that moment someone in an APC shouted that the car was on the wanted list and the driver should be arrested. B. Mairbek turned his car around and drove away as the servicemen opened fire.

11. After the car had left, commander V. Vasiliy immediately ordered the soldiers to detain Khizir Tepsurkayev. The soldiers started beating him. One of the soldiers hit Khizir Tepsurkayev on the forehead with the butt of his rifle, causing bleeding. During the beatings Khizir Tepsurkayev called for help. He called the name of his acquaintance, D. Yaragi, who lived nearby. The latter heard him and approached the crowd, but could not get through to Khizir Tepsurkayev because the soldiers started firing over the heads of the crowd. Khizir Tepsurkayev was forced into one of the APCs.

12. Another eyewitness, police officer A. Alvi (also mentioned in the submitted documents under the name of A. Aslan), participated in the special operation with another group of servicemen. He was close to the market when he heard the gunfire. Upon approaching the crowd he was told by bystanders that the officers had taken a young man, beaten him and were about to take him away in an APC. Then a group of officers from the temporary department of the interior of the Urus-Martan District ("the VOVD") arrived in a UAZ ("tabletka") vehicle. Khizir Tepsurkayev was taken from the APC and placed into the UAZ car, which drove away. A. Alvi immediately reported Khizir Tepsurkayev's removal to his superiors at the VOVD.

13. After Khizir Tepsurkayev had been taken away, the group under V. Vasiliy's command continued the special operation. The UAZ car which had taken Khizir Tepsurkayev away returned in half an hour. When A. Ruslanbek asked the officers in the car where they had taken Khizir Tepsurkayev, they refused to answer. A. Ruslanbek immediately reported Khizir Tepsurkayev's removal to his superiors at the district department of the interior.

14. Approximately half an hour after Khizir Tepsurkayev was taken away, in the morning of 27 August 2001, a boy came to the applicant's house and told her and her husband that their son had been abducted at the local market. The applicant and her husband immediately started searching for Khizir Tepsurkayev.

15. The applicant and her husband went to the VOVD and inquired about their son. They were told that Khizir Tepsurkayev was not there. The applicant's husband asked an employee of the Urus-Martan administration, Mr G., about his son. The latter was familiar with the situation and told him that B. Mairbek's car was on the wanted list, that Khizir should not have got into the car and that nothing could be done to assist the applicant and her husband in attempting to have their son released.

16. On 28 August 2001 the applicant's husband contacted the former Mayor of Grozny, Mr M., who went with him to the VOVD. An investigator from the department acknowledged that Khizir Tepsurkayev had been detained by the department and that he "would need to work with him".

17. Each day for two months, from morning until evening, the applicant and her husband waited for their son at the entrance to the VOVD. They asked everyone who entered or left the building about Khizir Tepsurkayev. Some of those who had also been detained during the special operation on 27 August 2001 and had been released later on, including the applicant's neighbour, told the applicant and her husband that they had heard the police mention the surname of Khizir Tepsurkayev in the halls of the VOVD.

2. Information submitted by the Government
18. The Government did not challenge most of the facts as presented by the applicant. According to their observations of 3 July 2008 "...the Urus-Martan district prosecutor's office opened criminal case No. 61008 in connection with the abduction in Urus-Martan of Kh. Tepsurkayev. The case was opened under Article 126 § 1 of the Criminal Code upon receipt of information from the office of the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic..."
B. The official investigation into the disappearance
1. Information submitted by the applicant
19. Since 27 August 2001 the applicant and her husband have contacted, both in person and in writing, various official bodies, such as the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic, the Urus-Martan District administration, the Chechen administration, a member of the Russian State Duma, military commanders' offices and prosecutors' offices at different levels, and detention centres in Chechnya and other regions of the Russian Federation, describing in detail the circumstances of their son's abduction and asking for help in establishing his whereabouts. The applicant retained copies of a number of those letters and submitted them to the Court.

20. On the morning of 27 August 2001 the applicant and her husband went in person to the VOVD with a complaint about their son's detention. It appears that on the same day Mr A. Ruslanbek and Mr A. Alvi reported Khizir Tepsurkayev's removal to their superiors.

21. On 1 September 2001 the applicant's husband wrote to the Urus-Martan District prosecutor's office ("the district prosecutor's office") with a request for assistance in finding his son. He described the circumstances of his son's removal by security forces and stated that his son had been taken away in a military UAZ car to the VOVD.

22. On 3 September 2001 the applicant's husband wrote to the military commander's office of the Urus-Martan District ("the district military commander's office") with a request for assistance in finding his son. He described the circumstances of his son's abduction and stated that his son had been taken away in a military UAZ car to the VOVD.

23. On 8 September 2001 the district prosecutor's office forwarded the request of the applicant's husband to the military prosecutor in Moscow.

24. On 25 January 2002 the district prosecutor's office instituted an investigation into the disappearance of Khizir Tepsurkayev under Article 126 § 1 of the Criminal Code of the Russian Federation (kidnapping) (from the submitted documents it appears that the investigation also referred to Article 126 § 2 of the Criminal Code of the Russian Federation (aggravated kidnapping)). The case file was given number 61008 (in the submitted documents the case file was also referred to under No. 62008).

25. On 14 May 2002 the applicant wrote to the district military commander's office with a request for assistance in finding her son. She complained that her letters to various authorities had produced no results.

26. On 30 June 2002 the Department of Federal Security Service in the Chechen Republic (the Chechnya FSB) informed the applicant that her request of 28 June 2002 had been forwarded for further examination to the military prosecutor's office of military unit No. 20102.

27. On 1 July 2002 the applicant wrote to the Prosecutor General of the Russian Federation. In her letter she stated that on 27 August 2001 her son had been detained by representatives of the Russian federal forces under the command of V. Vasiliy and taken to the VOVD. She stated that her numerous complaints to various State authorities had produced no results and that the authorities had failed to conduct an investigation in the criminal case opened in connection with her son's disappearance. She asked for assistance in establishing the whereabouts of Khizir Tepsurkayev.

28. On 11 and 19 July 2002 the Department of the Prosecutor General's Office in the Southern Federal Circuit informed the applicant that her requests had been forwarded for examination to the Chechnya prosecutor's office.

29. On 24 July 2002 the Chechnya prosecutor's office informed the applicant that the district prosecutor's office was to examine the lawfulness of the decisions taken by the investigative authorities in a number of criminal cases, including the case opened in connection with the disappearance of Khizir Tepsurkayev. The letter stated that the investigation in the case was under the control of the Chechnya prosecutor's office.

30. On 11 September 2002 the Chechnya prosecutor's office informed the applicant that on 25 January 2002 the district prosecutor's office had instituted an investigation into her son's disappearance under Article 126 § 2 of the Russian Criminal Code; that on 25 March 2002 the investigation in the criminal case had been suspended for failure to identify the perpetrators; that concrete measures aimed at identifying the culprits were being taken; and that information concerning the investigation could be obtained from the district prosecutor's office.

31. On 7 October 2002 the Chechnya prosecutor's office again informed the applicant that the district prosecutor's office was to examine the lawfulness of the decisions taken by the investigative authorities in a number of criminal cases, including the case opened in connection with the disappearance of Khizir Tepsurkayev.

32. On 15 November 2002 the district prosecutor's office informed the applicant's husband that the investigating authorities were undertaking search measures in the criminal case concerning his son's disappearance.

33. On 30 November 2002 the military prosecutor's office of the United Group Alignment ("the military prosecutor's office of the UGA") informed the applicant that at her request the office had examined the possibility that the Russian federal forces had been involved in the disappearance of her son and that their involvement in the abduction had not been established.

34. On 10 March 2003 the district prosecutor's office granted the applicant's husband victim status in criminal case No. 61008.

3 Comments

John Doe

March 27, 2018 at 8:00 am Reply

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John Doe

March 27, 2018 at 8:00 am Reply

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

John Doe

March 27, 2018 at 8:00 am Reply

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat.

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