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,
--------------------------------
<*> 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,
--------------------------------
<*> 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
