ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 24.02.2005<ДЕЛО ХАШИЕВ И АКАЕВА (khashiyev and akayeva) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FORMER FIRST SECTION
CASE OF KHASHIYEV v. RUSSIA AND AKAYEVA v. RUSSIA
(Applications Nos. 57942/00 and 57945/00)
JUDGMENT <*>
(Strasbourg, 24.II.2005)
In the case of Khashiyev v. Russia and Akayeva v. Russia,
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<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Former First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs F. Tulkens,
Mrs {N. Vajic} <*>,
Mr A. Kovler,
Mr V. Zagrebelsky, judges
and Mr S. Nielsen, Section Registrar,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 14 October 2004 and 27 January 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in two applications (Nos. 57942/00 and 57945/00) 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, Mr Magomed Akhmetovich Khashiyev and Mrs Roza Aribovna Akayeva ("the applicants"), on 25 May 2000 and 20 April 2000 respectively.
2. The applicants, who had been granted legal aid, were represented by Mr Kirill Koroteyev, a lawyer of Memorial, a Russian Human Rights NGO based in Moscow, and Mr William Bowring, a lawyer practising in London. The Russian Government ("the Government") were represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicants alleged that their relatives were tortured and killed by members of the Russian federal military in Chechnya in February 2000. They also submitted that the investigation into their deaths was inefficient. They relied on Articles 2, 3 and 13 of the Convention.
4. The applications were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).
6. The Chamber decided to join the proceedings in the two applications (Rule 42 § 1).
7. By a decision of 19 December 2002, the Court declared the applications admissible.
8. The applicants and the Government each filed observations on the merits (Rule 59 § 1).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 October 2004 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights, Agent,
Mr Y. Berestnev, Counsel,
Mrs A. Saprykina, Adviser;
(b) for the applicants
Mr B. Bowring, Professor, Counsel,
Mr P. Leach,
Mr K. Koroteyev, Advisers.
The Court heard addresses by Mr Laptev, Mr Bowring, Mr Leach and Mr Koroteyev.
THE FACTS
I. The circumstances of the case
10. The applicants were born in 1942 and 1955 respectively and were residents of Grozny, Chechnya. The first applicant currently resides in Ingushetia, and the second applicant in the Moscow Region.
A. The facts
11. The facts surrounding the deaths of the applicants" relatives and the ensuing investigation were partially disputed. In view of this the Court requested that the Government produce copies of the entire investigation files opened in relation to the applicants" relatives" deaths. The Court also requested that the applicants produce additional documentary evidence in support of their allegations.
12. The submissions of the parties on the facts concerning the circumstances of the applicants" relatives" deaths and the ensuing investigations are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
1. The killing of the applicants" relatives
13. The first applicant lived at 101 Tashkalinskaya Street in the Staropromyslovskiy district of Grozny. After 1991 the first applicant, who is ethnic Ingush, attempted to sell the house and leave because he felt threatened by the situation in Chechnya, but could not find anyone to buy it. During the hostilities in 1994 - 1996 the first applicant and his family stayed in Ingushetia, and on their return found that all their property had been destroyed or looted.
14. In November 1999 the first applicant left Grozny because of the renewed hostilities. His relatives decided to stay in Grozny to look after their houses and property. They were his brother, Khamid Khashiyev (born in 1952), his sister Lidiya Khashiyeva (born in 1943) and her two sons, Rizvan Taymeskhanov (born in 1977) and Anzor Taymeskhanov (born in 1982). The first applicant"s brother lived in the street parallel to Tashkalinskaya Street, at 109 Neftyanaya Street, and his sister lived in the neighbouring house at 107 Neftyanaya Street.
15. The second applicant was a resident of the "Tashkala" quarter in the Staropromyslovskiy district of Grozny. In October 1999 she left the city together with her mother and sister because of the hostilities. Her brother, Adlan Akayev (born in 1953) remained to look after their property and house, located at 24 4-th Neftyanoy Lane.
16. In December 1999 the Russian federal army started an operation to take control of Grozny. Heavy fighting lasted until the end of January 2000, when the central parts of the city were finally taken. The exact date on which the Staropromyslovskiy district of Grozny was taken by the federal forces is somewhat unclear. The applicants submitted, referring to the Government RIA and Interfax news agencies, that by 20 January 2000 the Staropromyslovskiy district was under the Russian federal forces" firm control. Several witness statements produced by the parties indicate that the federal troops were in control of the district as from 27 December 1999. The Government disputed this allegation and referred to two witness statements, allegedly contained in criminal investigation file No. 12038 which suggest that, although troops were present in the district as early as 1 January 2000, they still faced scattered resistance from the Chechen fighters ("boyeviki"). However, no such testimonies are contained in the copy of the file submitted by the Government to the Court, nor are they listed in the list of documents attached to the criminal case-file.
17. At the end of January 2000 the applicants learned that their relatives had been killed in Grozny. On 25 January 2000 the first applicant, his sister Movlatkhan Bokova (maiden name Khashiyeva), and one of their former neighbours from Grozny, Petimat (also spelled Fatima) Goygova, travelled to Grozny to find out more about the state of their relatives. At 107 Neftyanaya Street they found three bodies lying in the courtyard with gunshot wounds and other marks. These were Lidiya Khashiyeva and Anzor Taymeskhanov, the first applicant"s sister and nephew, and Adlan Akayev, the second applicant"s brother. The second applicant"s brother was holding his identity card as Head of the Physics Department of the Grozny Teaching Institute. Other documents were in a shirt pocket: his passport, identity card as researcher for the Grozny Oil Institute and his driving licence. Identity documents were also found on the two other bodies.
18. The first applicant and the women had to return to Ingushetia on the same day, because of the curfew imposed after 5 p.m. There they informed the family of Adlan Akayev, including the second applicant, of his death. Having arranged for transport, on 28 January 2000 they went to Grozny to collect the bodies. Soldiers from a roadblock in the Staropromyslovskiy district accompanied them to the house at 107 Neftyanaya Street and helped them to collect the bodies. The first applicant brought the bodies to the village of Voznesenskoye in Ingushetia, where they were buried on 29 January 2000.
19. The first applicant submits that the bodies of his relatives bore marks of numerous stab and gunshot wounds and bruises, and that some bones were broken. In particular, the body of Lidiya Khashiyeva had 19 stab wounds, her arms and legs were broken and teeth were missing. The body of Anzor Taymeskhanov had multiple stab and gunshot wounds, and his jaw was broken (see § 51 below).
20. On 28 January 2000 the second applicant travelled to Voznesenskoye and saw the bodies of her brother and of the first applicant"s relatives. She saw numerous gunshot and stab wounds and traces of beatings and torture on the body of her brother and on the other bodies. In particular, she submits that her brother"s body had seven gunshot wounds to his skull, heart and abdominal area. The left side of his face was bruised and his collar-bone was broken (see § 61).
21. Both applicants submit that they did not contact a medical doctor or take photographs of the bodies at that stage due to the state of shock caused by their relatives" violent deaths.
22. On 2 February 2000 the village authorities of Psedakh, Ingushetia, issued a certificate to confirm that the body of Adlan Akayev, brought from the Staropromyslovskiy district of Grozny, was buried on 29 January 2000 in the village cemetery.
23. On 9 February 2000 the second applicant travelled to Grozny. In the courtyard of the house at 107 Neftyanaya Street she picked up machine-gun cartridges and her brother"s hat. On the same day she saw five other bodies in a nearby house. All had been shot. She learned that a sixth woman from the same group, Elena G., had been wounded but survived. The second applicant later traced her to Ingushetia. Elena G. informed the second applicant that they had been shot at by soldiers and that she had last seen the applicant"s brother alive on the evening of 19 January 2000.
24. On 10 February 2000, the first applicant, together with his daughter and sister, travelled to Grozny again, hoping to find his missing brother and nephew. With help from a local resident they found three bodies lying between nearby garages. These were the bodies of Khamid Khashiyev and Rizvan Taymeskhanov, the first applicant"s brother and second nephew. The third body belonged to Magomed Goygov, a neighbour. The first applicant took photographs of the bodies. He then brought a car to transport the bodies to Ingushetia, where they were buried the next day. Goygov"s body was collected by his relatives on 11 February 2000 for burial.
25. The first applicant submits that Khamid Khashiyev"s body was mutilated, half of his skull was smashed and some fingers had been cut off. Rizvan Taymeskhanov"s body was grossly mutilated from numerous gunshots (see §§ 52 and 54).
26. On 10 February 2000 at the first applicant"s request, the three bodies were examined by officers of the Nazran Department of the Interior, who reported numerous wounds to the head, body and extremities. The examination took place in the Malgobek town morgue. The officers did not remove the clothes from the bodies, which were frozen.
27. The second"s applicant"s mother, Isit Akayeva, died on 29 April 2000 at the age of 65 of a heart attack. The second applicant submits that her death was brought about by the news of her only son"s death.
2. The investigation into the deaths
28. On 7 February 2000 the Malgobek Town Court in Ingushetia, acting on a motion by the second applicant, certified the death of her brother, Adlan Akayev, which had occurred in Grozny on 20 January 2000. The court based its decision on statements of the applicant and two witnesses. They confirmed that his body had been found in Grozny in the courtyard of the Khashiyevs" house with numerous gunshot wounds and that he had been buried on 29 January 2000 in the village of Psedakh. Following the court"s decision, the civil registration office of the Malgobek district in Ingushetia issued a death certificate for the second applicant"s brother on 18 February 2000.
29. On 14 March 2000 the office of the Malgobek Town Prosecutor issued a paper to the first applicant certifying that on 10 February 2000 the dead body of his brother, Khamid Khashiyev, had been found in Grozny and that, given the numerous gunshot wounds to the head and body, his brother appeared to have died a violent death.
30. On 7 April 2000 the Malgobek Town Court in Ingushetia, at the first applicant"s request, certified the deaths of Khamid Khashiyev, Lidiya Khashiyeva, Rizvan Taymeskhanov and Anzor Taymeskhanov, which had occurred in Grozny, Chechnya, on 19 January 2000. The court based its decision on statements by the applicant and two witnesses. The court noted in the decision that a criminal case had been opened and that an investigation was in progress (there is no evidence that a criminal case had been opened at that time). Following the court decision, the civil registration office of the Malgobek district in Ingushetia issued death certificates for the first applicant"s four relatives on 19 April 2000.
31. The Government submitted a copy of investigation file No. 12038, opened on 3 May 2000 by the Grozny Town Prosecutor"s Office following a publication entitled "Freedom or Death" in the Novaya Gazeta newspaper on 27 April 2000 about mass murder of civilians by the "205th brigade" in the Novaya Katayama settlement in Grozny on 19 January 2000. The relevant documents, as submitted by the Government, are listed below in Part B.
32. On 27 May 2000 the military prosecutor of military unit No. 20102 (the Russian federal military headquarters in Chechnya) informed the first applicant, in response to a complaint he had made on 5 April 2000 concerning the killing of his relatives, that, after a review by the prosecutor, no decision to open a criminal investigation had been taken for lack of corpus delicti in the actions of federal servicemen.
33. On 6 June 2000 the Malgobek Town Prosecutor informed the first applicant that criminal case No. 20540020, opened on 4 May 2000 into the deaths of Rizvan Taymeskhanov and Khamid Khashiyev, had been transferred on 15 May 2000 to the Republican Prosecutor in Ingushetia.
34. On 30 June 2000 the office of the Chief Military Prosecutor, in response to a request by the Memorial Human Rights Centre for information

"СОГЛАШЕНИЕ МЕЖДУ ПРАВИТЕЛЬСТВОМ РОССИЙСКОЙ ФЕДЕРАЦИИ И ПРАВИТЕЛЬСТВОМ МЕКСИКАНСКИХ СОЕДИНЕННЫХ ШТАТОВ О БЕЗВИЗОВЫХ ПОЕЗДКАХ ПО ДИПЛОМАТИЧЕСКИМ, СЛУЖЕБНЫМ И ОФИЦИАЛЬНЫМ ПАСПОРТАМ"(Заключено в г. Москве 28.01.1997)  »
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