Постановление Европейского суда по правам человека от 29.10.2009 «Дело Вахаева и другие (vakhayeva and others) против России» [англ.]

Город принятия

(Application No. 1758/04)
(Strasbourg, 29.X.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 Vakhayeva and Others 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,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 8 October 2009,

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

1. The case originated in an application (No. 1758/04) 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 seven Russian nationals listed below ("the applicants"), on 14 November 2003.

2. The applicants, who had been granted legal aid, were represented by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government ("the Government") were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights and subsequently by their new Representative, Mr G Matyushkin.

3. The applicants alleged that their relative had disappeared after being detained by servicemen in Chechnya on 1 August 2000. They complained under Articles 2, 3, 5 and 13.

4. By a decision of 11 September 2008 the Court declared the application admissible.

5. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.

I. The circumstances of the case
6. The applicants are:

1. Ms Rebart (Rebat) Vakhayeva, born in 1945;

2. Ms Kheda Aydamirova, born in 1976;

3. Mr Adam Vakhayev, born in 1993;

4. Ms Petimat Vakhayeva, born in 1995;

5. Mr Akhmed Vakhayev, born in 1997;

6. Mr Akhyad Vakhayev, born in 1998;

7. Ms Khadizhat Vakhayeva, born in 2000.

The applicants are Russian nationals and live in Urus-Martan, the Chechen Republic.

7. The applicants are members of one family and are close relatives of Kazbek Vakhayev, born in 1975, who was apprehended by the police and has been missing since 13 August 2000. The first applicant is his mother, the second applicant is his wife and the third to seventh applicants are his children. The applicants live together in their house in Urus-Martan at 5, Nuradilova Street, where Kazbek Vakhayev also lived before his arrest.

8. Kazbek Vakhayev worked as a furniture maker before his arrest. According to the applicants, he had never been involved in the armed conflict in Chechnya and had no connections with the paramilitary.

A. Arrest and detention of Kazbek Vakhayev
1. The applicants' account
9. On 1 August 2000 the Urus-Martan Temporary Department of the Interior of the Chechen Republic Урус-Мартановский временный отдел внутренних дел Чеченской республики ("Urus-Martan VOVD") conducted a sweeping operation in the eastern part of the town. From early morning military forces cordoned off the eastern sector of the town, and officers from the Ministry of the Interior carried out a security raid.

10. During the raid a van belonging to the Urals police arrived at the Vakhayevs' house. The whole family was already waiting in the courtyard with their documents, ready to be checked. According to the applicants, the servicemen were wearing police uniforms and were armed. Without any introduction or the presentation of a warrant they started searching the house. No attesting witnesses were present and no official records were made of the search. The search did not yield any incriminating evidence.

11. After the search the servicemen proceeded with the document check, and requested the passports of the adult men who were present, namely Kazbek Vakhayev and his father, Lecha Vakhayev. They showed their passports, both of which were valid and bore registration stamps confirming their legal address, which was the place where they were being checked. The servicemen examined the passports and asked who Kazbek Vakhayev was. He answered and then asked whether anything was wrong with his documents. The servicemen told him that the documents were fine, but he was "on the list" and showed him a page from a notepad with some names on it. He was ordered to get in the van. In reply to the first applicant's question as to where he was being taken one of the policemen said: "They will see. Interrogate him. He will be released in two hours". Another policeman explained that Kazbek Vakhayev was being taken following the receipt of an anonymous letter.

12. On the same day officers from the Urus-Martan VOVD arrested several other men from the neighbourhood, among them G., two brothers Sh. and four brothers M. At the time of their arrests their houses were also searched. All of them were taken to the Urus-Martan VOVD, a temporary police station with a detention facility set up in a former boarding school in the town centre.

13. On 2 August 2000 the applicants learned that an order to remand Kazbek Vakhayev in custody for ten days had been issued on the grounds that he was a vagrant. Under the applicable legislation this meant a person without any legal address indicated in his passport.

14. For the next ten days the first and the second applicants visited the Urus-Martan VOVD regularly to enquire about Kazbek Vakhayev and to leave food and clothes for him, to be passed to the detention facility. Every day they were told that there was nothing pending against him on the file and that he was about to be released.

15. Whenever the applicants left a parcel they attached a list of its contents, which would then be signed by Kazbek Vakhayev, and the guard would show them his signature to confirm its receipt. The applicants submit that they recognised his signature every time they left him a parcel. Sometimes he would add a short note and they were also able to recognise his handwriting.

16. On 11 August 2000 Kazbek Vakhayev was due to be released after his ten days' detention. His relatives and the families of other detainees whose release was due on the same day went to the Urus-Martan VOVD early in the morning to pick them up. They waited until 5 p.m., when Major S. announced that no one would be released on that day. The applicants then left another parcel for Kazbek Vakhayev, the receipt of which he confirmed as usual. All the detainees' families, including the applicants, stayed in front of the Urus-Martan VOVD until the start of the curfew and then left.

17. On 12 August 2000 the applicants and the other families waited outside the Urus-Martan VOVD all day, but no one was released on that day either. In the evening the applicants left another parcel, the receipt of which Kazbek Vakhayev confirmed as usual.

18. On 13 August 2000 the first and the second applicants and three relatives went to the Urus-Martan VOVD and waited there all day together with the families of the other detainees. At about 5 p.m. they submitted a parcel for Kazbek Vakhayev. However, after an unusually long delay a policeman brought it back and told them that their relative was no longer in the detention facility.

19. The applicants asked to see the head of the Urus-Martan VOVD, Colonel Sh., and when he came to meet them outside the VOVD the first applicant asked him where her son was. Colonel Sh. took their names, went back into the police station and then returned with Kazbek Vakhayev's passport. He handed the passport to the first applicant and told her he did not know where her son was. When she pressed him for an explanation he replied that he had probably been taken to the "force groups". According to the applicants, this meant the federal force group "Zapad" (группировка федеральных сил "Запад") which at the time was located to the south-west of Urus-Martan. When the first applicant protested, saying that the police were in charge of Kazbek Vakhayev and that handing him over without any documents was unheard of, Colonel Sh. replied that he would punish the head of the detention facility. The applicants were unable to obtain any more information on the matter.

20. On the evening of the same day the two brothers Sh. and four brothers M. were found after having been left on the Rostov - Baku motorway near the town of Argun in Chechnya. The applicants learned that all of them had sustained numerous injuries and had traces of torture. The first applicant also learned that on the night of 11 - 12 August 2000 they had been transferred from the Urus-Martan VOVD to the Urus-Martan District Department of the Interior (ROVD), a normal police station, and on the night of 12 - 13 August 2000 they had been taken to the federal force group "Zapad". After spending a night there, on 13 August 2000 they were taken to the town of Khankala, then the main federal military base for Chechnya. On the evening of the same day they were driven to the Argun district, where they were dropped off on the motorway.

21. On 14 August 2000 the applicants learned that two more detainees, Yusup Satabayev (Satabayeva v. Russia, application No. 21486/06) and Ch., had gone missing from the Urus-Martan VOVD at the same time as Kazbek Vakhayev. Yusup Satabayev had been in detention since 23 February 2000 on suspicion of involvement in illegal paramilitary groups; from the beginning of August he had been held in the Urus-Martan VOVD. According to the applicants, Ch. had been arrested during the sweeping operation on the Urus-Martan district on 9 August 2000. On 14 August 2000 the relatives of Yusup Satabayev and Ch. had learned of their disappearance from the Urus-Martan VOVD. G. had also gone missing from the VOVD.

22. At about noon on the same day the families of the four missing men met the head of the Urus-Martan VOVD, Colonel Sh., who initially told them that all four men had been released. He then said that only Kazbek Vakhayev had been released on 11 August 2000, but that the others had been taken to the "force groups". The first applicant talked to Colonel Sh. afterwards, and eventually he told her that all four men, including her son, had been taken to "FSB-2" ("ФСБ-2"), which formed part of the "force groups".

2. The Government's account
23. In their submissions prior to the Court's decision of 11 September 2008 on the admissibility of the application, the Government stated that "on 1 August 2000 officers of the Urus-Martan Temporary Department of the Interior of the Chechen Republic under Decree of the President of the Russian Federation of 2 November 1993 No. 1815 "On Measures for Prevention of Vagrancy and Mendicancy" apprehended and brought to the said department Y.A. Satabayev, [G.], K.L. Vakhayev and [Ch.]. Subsequently they were released however, their whereabouts [are] still unknown".

24. In their submissions after the Court's decision of 11 September 2008 on the admissibility of the application, the Government reiterated that Kazbek Vakhayev had been detained on 1 August 2000 on the ground of the above-mentioned Decree. At the same time they submitted that he had been released on 11 August 2000. The Government also stated that his detention was "sanctioned by the prosecutor of the Urus-Martan district as valid and justified. The applicants have never brought any complaints against this detention before the national courts".

B. The search for Kazbek Vakhayev and the investigation
25. On 15 August 2000 the first applicant filed a complaint with the Urus-Martan District Prosecutor's Office concerning the unlawful arrest, detention and disappearance of her son.

26. On 20 August 2000 the acting prosecutor of the Urus-Martan district replied to the first applicant:

"Further to your application concerning the disappearance of your son, Kazbek Vakhayev, born in 1975, I can inform you that from 1 to 11 August 2000 he was detained in the detention facility of the Urus-Martan VOVD as a vagrant, after which he was released."
27. On 22 August 2000 the first and the second applicants learned from informal contacts that on 13 August 2000 four young Chechen men had been executed in a military camp near the village of Goy-Chu of the Urus-Martan district. The execution had apparently been carried out by servicemen from the Urus-Martan district military commander's office (Урус-Мартановская районная военная комендатура) and the bodies had been buried in a shallow grave in the grounds of the military camp. When the camp was relocated one of the soldiers had told the villagers of Goy-Chu about the grave and asked them to re-bury the dead. In the place he indicated villagers exhumed four corpses with numerous traces of violence, and also found some spent cartridges. They could not identify the bodies but they made a video recording of them. The bodies were re-buried on the same day, 22 August 2000, in the Goyskoye village cemetery. A member of the applicants' family, Mr U., came to identify the bodies, but he did not recognise Kazbek Vakhayev among them. The applicants submitted a copy of the above video recording to the Court.

28. On 27 August 2000 the first applicant wrote to the military commander of the Urus-Martan district, requesting him to take urgent measures to search for her son.

29. On 14 September 2000 the applicant filed a written complaint with the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic, requesting his assistance in the search for her son.

30. On 16 September 2000 the first applicant and the mothers of the missing detainees Yusup Satabayev, G. and Ch. applied to the Prosecutor's Office of the Chechen Republic, complaining about the disappearance of their sons from the detention facility and alleging the use of torture against them.

31. On 17 September 2000 the Urus-Martan District Prosecutor's Office informed the applicant that her letter of 20 August 2000 had been forwarded to the Urus-Martan VOVD.

32. On 18 October 2000 the Urus-Martan District Prosecutor's Office opened a criminal investigation into the abduction of four men, i.e. Kazbek Vakhayev, Yusup Satabayev, G. and Ch. (criminal case file No. 24048). The decision stated, in particular: