Постановление Европейского суда по правам человека от 20.05.2010 «Дело Джабраиловы (dzhabrailovy) против России» [англ.]

Город принятия

(Application No. 3678/06)
(Strasbourg, 20.V.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 Dzhabrailovy 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 29 April 2010,

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

1. The case originated in an application (No. 3678/06) 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 three Russian nationals listed below ("the applicants"), on 19 January 2006.

2. The applicants were represented by lawyers from the Stichting Russian Justice Initiative ("SRJI"), an NGO based in the Netherlands with a representative office in Russia. 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. The applicants alleged that the first applicant and their relative, Mr Valid Dzhabrailov, had been abducted by State servicemen in Chechnya in February 2003 and that those State servicemen had subsequently killed the latter. They complained under Articles 2, 3, 5 and 13.

4. On 30 April 2008 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.

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.

I. The circumstances of the case
6. The applicants are Mr Aslan (also known as Lukman) Dzhabrailov, who was born in 1979, Ms Umkusu Dzhabrailova, who was born in 1949 and Ms Larisa Dzhabrailova, who was born in 1977. They live in Grozny, Chechnya. The first applicant is the brother of Valid (also spelled as Volid and also known as Lecha) Dzhabrailov, who was born in 1973; the second applicant is his mother and the third applicant is his sister.

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

A. Abduction of Aslan and Valid Dzhabrailov
1. Events of 16 - 18 February 2003
a. Abduction of the first applicant and Valid Dzhabrailov
8. At the material time the applicants and Valid Dzhabrailov lived at 104 Sovetskaya Street in the settlement of Pervomayskiy, in the Grozny district, Chechnya. At about 7 a.m. on 16 February 2003 (in the submitted documents the date was also referred to as 15 February 2003) the applicants and Valid Dzhabrailov were at home, when a group of armed masked men in camouflage uniforms arrived at their gate. The men arrived in a white GAZ car ("Газель"), a blue VAZ-2121 car ("Нива"), a khaki-coloured military UAZ car ("таблетка") and a UAZ car. The men broke into the house and dispersed into different rooms. The intruders, who spoke unaccented Russian, neither identified themselves nor produced any documents. The applicants thought that they were Russian servicemen.

9. The intruders woke up the second and third applicants, lined them up against a wall and threatened to shoot them if they moved. After that the servicemen went into the room where the first applicant and Valid Dzhabrailov were sleeping. They woke them up, forced the brothers to the floor, handcuffed them and blindfolded Valid Dzhabrailov with the hood of his sweater. Then they took Valid and Aslan Dzhabrailov's passports, beat them, dragged them outside and forced them to the ground. When the second applicant asked the intruders where they were taking her sons, the servicemen told her that they were taking them to a local department of the interior ("в отдел") for an identity check. After that they forced Valid and Aslan Dzhabrailov, who were already bleeding, into the military UAZ car and drove away to an unknown destination. While travelling in the car, the servicemen beat and kicked the brothers.

b. Detention of Valid and Aslan Dzhabrailov
10. Upon arrival at the point of destination, the servicemen took Valid Dzhabrailov and the first applicant out of the car, put plastic bags over their heads and bound the bags with adhesive tape. The brothers did not know where they had been taken, but they could hear the sound of military vehicles and helicopters. The first applicant thought that they had arrived at the main base of the Russian military forces in Khankala, Chechnya.

11. After that Valid and Aslan Dzhabrailov were forced to crawl on their hands and knees into a basement where they were thrown on to a cement floor. The brothers were cold and bleeding. Some time later the abductors came into the cell. Valid Dzhabrailov asked them why they had been abducted. In response one of the servicemen gave him several blows to the head and in the stomach with his rifle butt. Valid Dzhabrailov fell unconscious and was dragged outside. After that the brothers were separated and placed into different cells.

i. Detention and ill-treatment of the first applicant
12. The first applicant was taken into a small cell in a basement, measuring approximately 2 x 3 metres. The cell had an electric light, a bunk bed and no windows. From the cell he could hear his brother Valid Dzhabrailov being interrogated and screaming as a result of being beaten.

13. After a while two masked men in camouflage uniforms came into the applicant's cell. They asked him a number of questions, such as: whether he had ever laid any landmines and whether he had known any members of illegal armed groups in his village. They beat him with their fists, pistols and a heavy flashlight and kicked him with their heavy boots. The applicant was subjected to such interrogations and beatings several times. The men pressurised the applicant to confess to involvement in illegal armed groups. For two days of his detention in the basement the first applicant was not given any food or drink.

ii. Detention of Valid Dzhabrailov
14. It appears that Valid Dzhabrailov was detained in the same building as the first applicant. Between 16 and 18 February 2003 he was subjected to interrogations and beatings.

2. Events of 18 February 2003
a. Attempt to kill the first applicant
15. On 18 February 2003 two officers took the first applicant out of the basement, put a plastic bag over his head, bound it and his hands with adhesive tape and pushed him into a military UAZ car. In the vehicle the first applicant felt someone's heavy, cold body on the floor. He realised that this was the body of his brother, Valid Dzhabrailov.

16. The two servicemen took the first applicant and the body of Valid Dzhabrailov to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny. One of them shot the first applicant in the head; the applicant was not killed, but wounded, and he was able to pretend to be dead.

17. The servicemen carried the first applicant and Valid Dzhabrailov's body into a pit and placed them under a piece of a construction block. Then they laid explosives on the first applicant and placed Valid Dzhabrailov's body on top of them. After that they lit the fuse. Having done that, they got back in the car and drove away.

18. The first applicant managed to set himself free and extinguish the burning fuse. He threw the explosives away before they exploded. He ran out into the street and stopped the driver of a passing car who drove him home.

19. Upon returning home the first applicant did not immediately seek medical help; that came at a later stage. The first applicant obtained the following medical statements and submitted them to the Court:

1) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 8 December 2003. The document stated that, as a result of a splinter wound to the head, Aslan Dzhabrailov was suffering from cephalgia (pain in the skull), asthenia and neurosis.

2) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that, as a result of a tangential wound to the head received in 2003, Aslan Dzhabrailov was suffering from asthenia and neurosis.

3) Medical statement issued by a surgeon at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that the applicant had undergone a medical examination of the tangential wound inflicted to his head in 2003.

b. Discovery of Valid Dzhabrailov's body
20. On 18 February 2003 (in the submitted documents the date was also referred to as 17 February 2003) the applicants, their relatives and neighbours went to the Zavodskoy district of Grozny. They found Valid Dzhabrailov's body where it had been left by the first applicant and took it home. According to the witnesses, Ms L.M. and Ms A.M., the body showed traces of torture: it was black from the beatings; the wrists and ankles had been cut to the bone from the wearing of handcuffs and shackles; the palms and feet had been crushed and the head was hardly recognisable. They found a piece of metal wire on the neck but there was no trace of firearm wounds on the body.

21. Valid Dzhabrailov was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities. Two certificates were issued in connection with his death: the medical statement confirming Valid Dzhabrailov's death, dated 17 April 2003 and Valid Dzhabrailov's death certificate, stating that his death had occurred on 17 February 2003.

22. In support of their statements, the applicants submitted: an account by Ms L.M., dated 29 September 2003; an account by Ms A.M., dated 29 September 2003; an account by the first applicant, dated 29 October 2003; an account by the second applicant, dated 29 October 2003; an account by the third applicant, undated, and the three medical certificates, one dated 8 December 2003 and two dated 31 August 2004.

23. The Government did not challenge the facts as presented by the applicants. However, they pointed out that the investigation file contained neither a mention of the first applicant's beating in the car following the abduction nor his assertion that he had heard Valid Dzhabrailov screaming from being beaten while in detention.

B. The investigation into the abduction and the killing
24. Since 16 February 2003 the applicants have repeatedly applied in person and in writing to various public bodies, including the district department of the Ministry of the Interior (the ROVD) and prosecutors at various levels. They have been supported in their efforts by the NGO, SRJI. In their letters to the authorities the applicants referred to the events of 16 - 18 February 2003 and asked for assistance and details of the investigation. Mostly, these enquiries have remained unanswered, or purely formal replies have been given in which the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted to the Court some of the letters sent to the authorities and their replies. These documents, as well as the documents submitted by the Government, are summarised below.

25. On 16 February 2003 the Grozny district prosecutor's office inspected the crime scene at the applicants' house. Nothing was collected from the scene.

26. On 17 February 2003 an officer of the Zavodskoy ROVD informed his superiors that at about 6 p.m. on that date the ROVD had received information about the discovery of Valid Dzhabrailov' body in an abandoned building on the premises of a chemical plant and of the first applicant with a gunshot wound in his head. The latter stated that he and his brother, Valid, had been abducted from their house at about 6 a.m. on 15 February 2003 by unidentified armed men in camouflage uniforms; that they had been detained in an unidentified place and then taken by the abductors to the chemical factory in a UAZ vehicle.

27. On 18 February 2003, under Article 126 § 2 of the Criminal Code (aggravated kidnapping), the Grozny district prosecutor's office instituted an investigation into the abduction of Valid and Aslan Dzhabrailov. The case file was given the number 42024 (in the submitted documents the number was also referred to as 42042 and 41026).

28. On 18 February 2003 the investigators examined the crime scene at the place where Valid Dzhabrailov's body had been discovered. The investigators inspected the body on the spot and drafted a report to this effect. As a result, it was established that Valid Dzhabrailov's skull, face, ribs and upper and lower limbs seemed intact; no metal wire was found on his neck. Nothing was collected from the scene.

29. On 18 February 2003 the Grozny town prosecutor's office instituted an investigation into the murder of Valid Dzhabrailov and the case file was given the number 30034.

30. On 19 February 2003 the first and third applicants were granted victim status in the criminal case concerning the abduction and were questioned.

31. During questioning on 19 February 2003 the third applicant stated that at about 7 a.m. on 16 February 2003 a group of military servicemen had arrived at their house in several vehicles and had broken in. They had been armed with automatic guns; their faces had been covered with masks. The intruders had woken up the first applicant and Valid Dzhabrailov, taken their passports and told the third applicant in Russian that they would check her brothers' identities and release them. After that the servicemen had pushed the brothers into a grey UAZ car and taken them away. On 18 February 2003 a woman had arrived at the applicants' house and told them that the first applicant and Valid Dzhabrailov had been in the Zavodskoy ROVD. The applicants had immediately informed the district police officer about it who had gone to Grozny and returned with the body of Valid Dzhabrailov and the first applicant. The body had had numerous injuries and