Sasita Alikhanovna ISRAILOVA and Others v Russia - 35079/04 [2009] ECHR 544 (5 March 2009)

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Application no. 35079/04
by Sasita Alikhanovna ISRAILOVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 5 March 2009 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

The applicants are Russian nationals and live in Grozny, the Chechen Republic. They were represented before the Court by lawyers from the Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Moscow, Russia. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

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

The first two applicants are the parents of Mr Ilyas Movldiyevich Yansuyev, born in 1978, Mr Isa Movldiyevich Yansuyev, born in 1980, and the sixth applicant. Ilyas Yansuyev was married to the seventh applicant; they are the parents of the third and fifth applicants. Isa Yansuyev was married to the fourth applicant.

It was the seventh applicant who witnessed the events of 13 February 2003, and the account below is based on her submissions.

In the early morning of 13 February 2003 Ilyas and Isa Yansuyev, their families and a friend, Mr D., were asleep in Ilyas Yansuyev's flat, no. 110 at 24 Ioanisiani Street, Grozny.

At about 4 or 5 a.m. between fifteen and forty armed men wearing camouflage uniforms forced open the entrance door of Ilyas Yansuyev's flat and entered; some of them were masked. Although the armed men did not introduce themselves, the Yansuyevs concluded that they belonged to the Russian military because they spoke Russian without an accent.

The servicemen hit the seventh applicant on the head with the butt of a machine gun, tied her arms behind her back and covered her mouth with adhesive tape. Then they put her on the floor and covered her body with a blanket. One of them sat on the seventh applicant's back with the result that she could not move for about an hour. The eight-month-old third applicant was asleep in her bed; the servicemen put a pillow over her face.

Meanwhile the servicemen searched the flat, without producing a warrant, but did not seize anything. They also beat Ilyas Yansuyev with the butts of their machine guns. Then they forced Mr D., Ilyas and Isa Yansuyev out into the street and took them away. A few minutes later neighbours came and untied the seventh applicant, who rushed to take the pillow off her daughter's face.

In the applicants' submission, the neighbours had seen the abductors arrive in two armoured personnel carriers (“APCs”) which they had parked in the courtyard. The applicants did not produce any witness statements to corroborate this allegation.

According to the fourth applicant, who spent that night at her parents' flat in the same block of flats, she was awoken by the noise. She looked through a window and saw about twenty servicemen. After they left, she rushed into the street and saw the tracks of APCs leading in the direction of the main federal military base in Khankala.

In the Government's submission, on 13 February 2003 at about 4 a.m. unidentified persons in camouflage uniforms and masks armed with automatic firearms forcibly entered flat no. 110 at 24 Ioanisiani Street in Grozny, where they beat and tied up the seventh applicant and abducted Mr Ilyas Movldiyevich Yanusov, Mr Isa Movldiyevich Yanusov and Mr D. and took them away in an unknown direction.

According to the applicants, they started searching for their relatives in the morning of 13 February 2003. It was the first, fourth and seventh applicants who contacted various official bodies, such as the local administration, the Chechen administration, the Chechen President, the military commander's office of the Leninskiy District of Grozny (“the district military commander's office”) and prosecutors' offices at different levels. In those applications they described the events of 13 February 2003 and asked for assistance in establishing their relatives' whereabouts. They were assisted in their efforts by the SRJI.

In the applicants' submission, they also tried to obtain any information concerning their relatives' fate through unofficial channels. In particular, the first applicant turned for help to her neighbour, Ms P., who lived with a serviceman of the Russian intelligence service, Mr M., and agreed to ask him for information. Mr M. told Ms P. that Ilyas and Isa Yansuyev were being kept in a “pit” at the federal military base in the village of Khankala. He also mentioned that the person in charge of their arrest was named Ruslan Amirov. Two months later Ms P. learned that the Russian military had apprehended the Yansuyev brothers because Mr M. had slandered them.

On 13 February 2003 the first applicant complained in writing to the district military commander's office and the head of the administration of the Leninskiy District of Grozny that her sons had been apprehended on that date and asked for assistance in finding them. On an unspecified date the military commander's office requested the Grozny prosecutor's office and the department of the interior of the Leninskiy District to render the first applicant assistance in the search for Ilyas and Isa Yansuyev.

According to the Government, on 17 February 2003, in response to the first applicant's complaint of 13 February 2003, the Grozny prosecutor's office instituted an investigation into the disappearances of Mr D., Ilyas and Isa Yansuyev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was given the number 20039.

On 11 March 2003 the Grozny prosecutor's office granted the first applicant the status of victim of a crime in case no. 20039 and questioned her on the same date. She confirmed the account of events of 13 February 2003 as submitted before the Court. The first applicant also stated that she had information to the effect that the alleged perpetrators were servicemen of regiment no. 531 of the Russian Ministry of the Interior. According to the Government, the first applicant was further interviewed on 3 April 2003, when she stated that she had information, the source of which she refused to disclose to the investigating authorities, to the effect that the servicemen who had taken away her sons had been under command of Mr Ruslan Amirov, an officer of an intelligence service.

On 8 April 2003 the Grozny prosecutor's office requested the head of the detention facility IZ 20/2 based in the village of Chernokozovo to inform them whether Mr D., Ilyas and Isa Yansuyev were being or had been kept there. It is unclear whether any reply followed.

On 9 April 2003 the seventh applicant was granted the status of victim in case no. 20039 and questioned in connection with the events of 13 February 2003. She submitted that at about 4 a.m. the entrance door of her flat had been forced open, and around fifteen armed men in camouflage uniforms and masks had entered the room in which she and her husband had been sleeping. One of the men had hit her on the head with the butt of a machine gun and another one started kicking her husband. She had not seen what had been going on in the room where her brother-in-law and Mr D. had been sleeping. The men had then put adhesive tape across her mouth, had tied the hands of the Yansuyev brothers and Mr D. and taken them away. She had not seen what had been going on in the street. She had not applied to any medical institutions in connection with her injuries.

On 17 April 2003 the investigation was suspended for failure to identify the alleged perpetrators.

On 25 November 2003 the SRJI requested information on the progress of the investigation from the prosecutor's office of the Leninskiy District of Grozny (“the district prosecutor's office”).

On 19 December 2003 the district prosecutor's office informed the first applicant and the SRJI that the investigation into the kidnapping of Mr D., Ilyas and Isa Yansuyev had been opened and was underway.

On 20 April 2004 the district prosecutor's office resumed the investigation in case no. 20039.

On 29 April 2004 the military prosecutor's office of the United Group Alignment forwarded the applicants' complaint to the military prosecutor's office of military unit no. 20102.

In the Government's submission, on 29 April 2004 the investigating authorities again interviewed the first applicant, who had confirmed that Mr M. and her sons had had a quarrel. She also referred to Ms P.'s words to the effect that Mr M. had told her that the Yansuyev brothers had not been being kept in Khankala, and that he had tried to contact the intelligence officer Mr Ruslan Amirov so as to obtain information concerning their abduction.

According to the Government, on 10 May 2004 the investigating authorities questioned Ms P., the applicants' neighbour, who stated that in March 2003 she had been working as a yard-cleaner at the federal military base in Khankala and upon the first applicant's request had attempted to obtain information regarding the fate of the Yansuyev brothers. Ms P. had received information from a serviceman named Vladimir to the effect that the applicants' relatives had been alive and had been being held in a “pit”. During that period she had been cohabiting with Mr M., who according to him had been an officer of the federal Security Service. At some point Mr M. had had a quarrel with the Yansuyev brothers and threatened that they would “rot in a pit”.

On 27 May 2004 the district prosecutor's office stayed the investigation in case no. 20039 for failure to identify those responsible.

On 7 June 2004 the military prosecutor's office of military unit no. 20102 informed the prosecutor's office of the Chechen Republic (“the republican prosecutor's office”) that they had carried out an inquiry which had not established any indication that military personnel were implicated in the arrest of Ilyas and Isa Yansuyev. They had forwarded the case materials to the republican prosecutor's office pursuant to subject-matter jurisdiction rules.

On 2 February 2005 the SRJI requested the district prosecutor's office to update them on the state of proceedings in case no. 20039 and to inform them whether the first applicant had been granted the status of victim of a crime. On 25 February 2005 the district prosecutor's office replied that the first applicant had been granted the status of victim of a crime and that the investigation had been stayed on 27 May 2004.

On 8 April 2005 the district prosecutor's office informed the first applicant that the investigation in case no. 20039 instituted on 17 February 2003 had been resumed on 20 April 2004 and that the search for her sons, as yet fruitless, was underway.

On 11 April 2005 the republican prosecutor's office informed the first applicant that investigative measures were being taken in case no. 20039 and invited her to send further queries to the district prosecutor's office.

On 20 June 2005 the SRJI requested the district prosecutor's office to update them on the progress in case no. 20039 and to resume the investigation if it had been suspended.

On 28 April 2006 the decision of 27 May 2004 to suspend the investigation into the disappearance of the Yansuyev brothers was set aside and the proceedings were resumed. The first and sevenths applicants were informed accordingly.

In the Government's submission, on 10 May 2006 the investigating authorities questioned Mr B., the applicants' neighbour, who submitted that on 13 February 2003 at about 4 a.m. his wife had woken him up and said that she had heard voices speaking Russian. He had looked through the peephole of his flat door and had seen on the staircase around fifteen men armed with automatic firearms who forced the door of the Yansuyevs' flat open and shortly after brought out the Yansuyev brothers and another man. Two other neighbours of the applicants, who were interviewed on 12 and 15 May 2006, made similar submissions. One of them also stated that she had seen the men who had taken the applicants' relatives away leaving in the direction of Kirov Avenue.

The criminal proceedings had been stayed on 6 June 2006 for failure to establish the identity of the alleged perpetrators, and then resumed on 3 August 2007. The first and seventh applicants were informed of those decisions.

According to the Government, in the course of the investigation the authorities took a number of steps, and in particular verified the possibility that federal servicemen were implicated in the imputed offence. They sent numerous enquiries to various State bodies in an attempt to obtain information as to whether criminal proceedings had ever been brought against the Yansuyev brothers, or whether they had been detained by any of those bodies. The authorities had also checked detention centres so as to establish whether the applicants' relatives were being kept there. In the Government's submission, those measures brought no positive results.

In June 2007, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 20039 opened in connection with the abduction of the applicants' relatives. The Government produced several documents but refused to submit the entire file, stating that, under Article 161 of the Russian Code of Criminal Procedure, disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. They also submitted that they had taken into account the possibility of requesting confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file, the applicants or their representatives would not disclose those materials to the public. According to the Government, in the absence of any sanctions in respect of applicants for the disclosure of confidential information and materials, there were no guarantees concerning compliance by the applicants with the Convention and the Rules of Court. At the same time, the Government suggested that a Court delegation could be given access to the file in Russia, with the exception of those documents containing military and State secrets, and without the right to make copies of the case file.

In September 2007 the Court reiterated its request. In reply, the Government refused to produce any documents other than those submitted earlier for the aforementioned reasons.

(a) a decision of 17 February 2003 to institute criminal proceedings in connection with the abduction on 13 February 2003 of Ilyas Yansuyev, Isa Yansuyev and D. by a group of men in camouflage uniforms and masks armed with automatic firearms;

(b) a prosecutor's decision of 3 April 2003 to transfer case no. 20039 from one investigator to another;

(d) transcripts of witness interviews of the first and seventh applicant dated 11 March and 9 April 2003 respectively;

(e) decisions of 17 April 2003, 27 May 2004 and 6 June 2006 suspending the investigation in case no. 20039 and a decision of 20 April 2004;

(f) letters of 17 April 2003, 27 April and 27 May 2004, 6 May and 6 June 2006 and 6 August 2007 informing the first and seventh applicants of the suspension and resumption of the investigation in case no. 20039.

For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007.

“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argued that the investigation into the abduction of the applicants' relatives had not been completed, and that therefore the domestic remedies had not been exhausted in respect of the applicants' complaints.

The applicants called into question the effectiveness of the investigation, stating that it had been ongoing for several years but had not produced any meaningful results.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.

The Government argued that there were no grounds to hold the State responsible for the alleged violations of Article 2 of the Convention in the present case. They contended that there was no conclusive evidence that the applicants' relatives were dead and that the investigation had obtained no evidence that representatives of the State had been involved in the abduction of the Yansuyev brothers. They referred, in particular, to the replies of various State bodies obtained by the investigating authorities to the effect that none of those bodies had detained the Yansuyev brothers or brought criminal proceedings against them, and that they were not detained in any detention centres.

The Government further argued that the applicants had not given any reliable evidence to corroborate their allegations concerning the involvement of State agents in the abduction. In the Government's submission, groups of Ukrainian or ethnic Russian mercenaries had participated in the armed conflict together with Chechen rebel fighters and committed crimes in the territory of the Chechen Republic; thus, the fact that the perpetrators had Slavic features and spoke Russian did not prove their attachment to the Russian military. The Government also alleged that a considerable number of weapons had been stolen by illegal armed groups from Russian arsenals in the 1990s and that anyone could purchase masks, camouflage uniforms and firearms.

The Government also pointed to contradictions between the applicants' account of the events of 13 February 2003 submitted to the Court and the statements concerning the incident made to the domestic authorities. In particular, whilst in their submissions to the Court the applicants claimed that the alleged perpetrators had arrived in two APCs and, having apprehended the Yansuyev brothers, had then left in the direction of Khankala, in her witness interview to the domestic authorities the seventh applicant stated that she had not seen what had happened in the street, whilst the fourth applicant had allegedly seen only the tracks of the APCs leading in the direction of Khankala. The first applicant did not witness the incident of 13 February 2003 at all and based her account on others' statements. Moreover, she refused to disclose the source of her information concerning the alleged implication of the federal forces in her sons' abduction, which obstructed the investigation.

The Government further insisted that they had fulfilled their procedural obligation under Article 2 of the Convention. They argued that the investigation into the disappearance of the applicants' relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify those responsible. They submitted that the investigation was being carried out in full compliance with the domestic law and that a large number of investigative actions had been taken, including the sending of numerous enquiries to the federal military and security agencies to verify the possible involvement of federal servicemen in the imputed offence, or to check whether the applicants' relatives were being kept in any detention centres. The Government also argued that the first and seventh applicants, who had been acknowledged as victims in the case, had received explanations concerning their procedural rights.

As regards the applicants' complaint concerning their mental suffering, the Government, whilst not denying that the abduction of the applicants' relatives must have caused considerable emotional distress to the applicants, submitted that there was no causal link between the authorities' actions and the applicants' anguish, in the absence of any findings by the domestic investigation confirming the involvement of State agents in the aforementioned offence. According to them, the investigation had obtained no evidence that the applicants had been subjected to treatment prohibited by Article 3 of the Convention.

The Government further submitted that the investigation had obtained no evidence to confirm that the applicants' relatives had been detained by State agents in breach of the guarantees set out in Article 5 of the Convention.

Lastly, the Government argued that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, but had been unwilling to make use of them. They submitted that the first and seventh applicants had been granted victim status and therefore had been afforded procedural rights in the criminal proceedings, and in particular, the right to give oral and other evidence, to file motions, to receive copies of procedural decisions, and to access the case file and make copies of the materials of the file on completion of the investigation. The Government further argued the applicants could have appealed in court against actions or omissions of the investigation authorities, in accordance with Article 125 of the Russian Code of Criminal Procedure, but failed to do so. Also, in the Government's view, if the applicants had considered that any action or omission of public officials had caused them damage, they could have sought compensation for that damage in court by virtue of the relevant provisions of the Russian Civil Code, but they had never attempted to avail themselves of that opportunity. In support of this argument, the Government referred to a letter of the Supreme Court of Russia dated 3 August 2007 which stated that the applicants had not complained to the courts in the Chechen Republic about the unlawful detention of their relatives, about actions of any law-enforcement officials, or about any shortcomings in the investigation into the disappearance of Ilyas and Isa Yansuyev. The Government did not submit the letter to which they referred.

As regards Article 2 of the Convention, the applicants insisted that Ilyas and Isa Yansuyev had been taken away by representatives of the State in life-threatening circumstances, and the fact that they had remained missing for five years proved that they had been killed. In the applicants' opinion, due to the difficulties they faced in obtaining the necessary evidence from the authorities to substantiate their application, the burden should be shifted to the Government to provide reliable explanations in respect of the events in question and to prove that State agents were not responsible for arbitrary detention and killing of the Yansuyev brothers. The applicants also submitted that the investigation in the present case had fallen short of the Convention standards. They pointed out that the Government had withheld information regarding the investigation by refusing to provide the file of the criminal investigation. The applicants further argued that the investigation was pending for several years, having been repeatedly suspended and reopened but with no tangible results. In their submission, the authorities had failed to inform them of the progress of the investigation and to take a number of essential steps, for example to question any military personnel, and in particular Mr Ruslan Amirov, who had allegedly participated in the detention of the applicants' relatives.

The applicant further insisted that they had endured severe mental suffering, falling within the scope of Article 3 of the Convention, owing to the disappearance of their family members and the indifferent attitude of the State towards their situation.

The applicants also maintained that their relatives' detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.

As regards Article 13 of the Convention, the applicants that they had no effective remedies at their disposal as the investigation into their relatives' abduction had been pending for several years without producing any tangible result, and that in the absence of any findings of the domestic investigation the effectiveness of any other remedy was undermined.

The Court considers, in the light of the parties' submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

In their observations of 5 December 2007 the applicants stated that they no longer wished their complaint under Article 3 of the Convention concerning the alleged ill-treatment of their relatives and their complaints under Articles 8 and 14 of the Convention to be examined.

The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character, affecting respect for human rights as defined in the Convention, which require the further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998, unpublished; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005).

It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.

The Court reiterates that while in accordance with Article 35 § 1 of the Convention those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system, there is no obligation under the said provision to have recourse to remedies which are inadequate or ineffective. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), nos. 62566/00 et seq., 10 January 2002).

In the instant case, it does not appear that the seventh applicant properly raised before the domestic authorities her complaint alleging ill-treatment. The Court notes in this connection that the seventh applicant mentioned the beating during an interview of 9 April 2003 when describing the circumstances of the Yansuyev brothers' detention. However, the Court considers that, in the circumstances, the seventh applicants did not, as such, complain about the alleged ill-treatment but rather referred to it as a background for her complaint about her relatives' detention and disappearance. The Court is thus not convinced that this could be regarded as an attempt by the seventh applicant to bring her relevant complaint, as raised before the Court, to the attention of the national authorities. But even assuming that in the circumstances of the present case no remedies were available to the seventh applicant, the events complained of took place on 13 February 2003, whereas the present application was lodged on 23 August 2004, more than six months later (see Musayeva and Others v. Russia (dec.), no. 74239/01, 1 June 2006; Aziyev and Aziyeva v. Russia (dec.), no. 77626/01, 21 September 2006, or Ruslan Umarov v. Russia (dec.), no. 12712/02, 8 February 2007).

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Decides to join to the merits the Government's objection concerning non-exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants' complaints under Articles 2, 5 and 13 of the Convention and their complaint under Article 3 of the Convention concerning their mental suffering in connection with their relatives' disappearance;

Decides to strike out of its list of cases the applicants' complaint under Article 3 of the Convention concerning the alleged ill-treatment of their relatives and their complaints under Articles 8 and 14 of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Sasita Alikhanovna ISRAILOVA and Others v Russia - 35079/04 [2009] ECHR 544 (5 March 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/544.html Cite as: [2009] ECHR 544