Постановление ЕСПЧ от 27.03.2012 «Дело «Индербиева (Inderbiyeva) против Российской Федерации» (жалоба N 56765/08) [рус., англ.] Часть 3

1   2   3   4

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF INDERBIYEVA v. RUSSIA
(Application No. 56765/08)
JUDGMENT <*>

(Strasbourg, 27.III.2012)
———————————
<*> 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 Inderbiyeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Nina , President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik , judges,
and  Nielsen, Section Registrar,
Having deliberated in private on 6 March 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

  1. The case originated in an application (No. 56765/08) 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 a Russian national, Ms Deshi Inderbiyeva («the applicant»), on 10 July 2008.
  2. The applicant was represented by Mr D. Itslayev, a lawyer practising in Grozny. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
  3. The applicant alleged that two of her sisters had been killed by Russian servicemen in Grozny in January 2000. She alleged a violation of Articles 2, 3, 6 and 13 of the Convention.
  4. On 11 September 2009 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 former 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.

 

THE FACTS

  1. The circumstances of the case

 

  1. The applicant was born in 1968. She lives in Grozny. She is the sister of Shema (also spelt Sheima) Inderbiyeva, who was born in 1963, and Shamani Inderbiyeva, who was born in 1966.

 

  1. The killing of Shema and Shamani Inderbiyeva and subsequent events

 

  1. The applicant’s account

 

  1. At some point in 1999 due to heavy hostilities between Russian forces and Chechen fighters the applicant moved to a refugee camp in Ingushetia. Two of her sisters, Shema Inderbiyeva and Shamani Inderbiyeva, and her mother Yakhita Inderbiyeva remained in their flat — No. 10 in the block of flats at 154B, Pugacheva Street in the Staropromyslovskiy District of Grozny. Most of the other residents of the district left for safer areas, but the applicant’s relatives stayed to look after the family property. According to the applicant, Russian forces regained control over the Staropromyslovskiy District at the beginning of January 2000.
  2. In December 1999 the applicant’s mother and her sisters Shema and Shamani Inderbiyeva moved from their flat to the basement under the pavilion situated in the courtyard of their block of flats. On 1 January 2000, owing to the intensity of a fire, Shema and Shamani Inderbiyeva decided to hide in the basement of the applicant’s block of flats at No. 285 (in the documents submitted the address is also stated as No. 287) in Derzhavina Street in the Staropromyslovskiy District of Grozny. Their mother, Yakhita, remained in the basement at 154B, Pugacheva Street as she was sick and could not walk. The applicant’s sisters regularly visited their mother and brought her food.
  3. On 8 February 2000 (in the submitted documents the date was also referred to as 12 February 2000) the applicant, together with an acquaintance, Ms F.A., went to visit her relatives in Grozny. She did not find anybody in her family’s flat in Pugacheva Street and went to find out about her sisters and mother from the neighbours who lived in her block of flats in Derzhavina Street. In the basement of the house the applicant found her mother, who was in bed, in a state of shock and incoherent, and who kept saying: «Russian soldiers, smoke, fire».
  4. Having spent the night with her mother in the basement, on the following day the applicant went to look for her sisters in Pugacheva Street. In the basement located in the courtyard of her family’s block of flats she found the two burnt corpses of Shema and Shamani Inderbiyeva. The applicant was able to identify her sisters by their personal belongings, pieces of hair, remaining facial features and teeth crowns.
  5. The applicant collected the remains in pillow cases and returned with them to Derzhavina Street, where she met Ms M.Z., an elderly ethnic Russian. The woman told her that on 10 January 2000 she and her husband had been walking next to the basement at 154B, Pugacheva Street when they had seen three servicemen looking into the basement under the pavilion. One of the servicemen, a senior one, had said to someone in the basement: «Mother, come out and let’s go to the military commander’s office for an identity check». Then he had leaned over and pulled the applicant’s mother out. He had walked her away from the pavilion by hand whereas two other servicemen had remained next to the basement. Next, one of the two soldiers had thrown something inside. A powerful explosion followed as a result of which the pavilion had been partially destroyed and smoke had been coming out from the basement. The applicant’s mother had turned back and fainted; looking at her the soldiers had started laughing. Ms M.Z. and her husband had become scared and walked away.
  6. On 10 February 2000 the applicant and Ms F.A. went to the Staropromyslovskiy District military commander’s office to obtain permission to bury her sisters’ remains in the cemetery of the village of Valerik in the Urus-Martan District. After she explained to the servicemen that her sisters had been killed by Russian soldiers, the servicemen wanted to detain her and even opened gunfire to stop her, but she managed to run away. Then she saw a group of Chechens in military uniforms and asked them for help. The servicemen from the military commander’s office requested that the Chechens hand the applicant over to them, but they refused. Then the Chechen servicemen took her to the 36th District of Grozny (36-й участок); from there the applicant managed to get a lift to Valerik.
  7. On the same date, 10 February 2000, the applicant buried her sisters’ remains in the Valerik cemetery. After that, she returned to the refugee camp in Ingushetia.
  8. According to the applicant, her mother Yakhita, after witnessing the murder of her daughters Shema and Shamani by the soldiers, suffered a severe psychological breakdown and became mentally ill.
  9. In support of her statements, the applicant submitted her own statement dated 22 February 2010; a statement by Ms G.P. dated 29 January 2004; a statement by Mr S.Kh. dated 1 March 2010; a statement by Ms Z.T. dated 1 February 2004, a copy of the witness statement by the applicant’s mother Yakhita Inderbiyeva dated 5 July 2000 and copies of other documents received from the authorities. The applicant also enclosed a Human Rights Watch report «Civilian Murders in the Staropromyslovskiy District of Grozny» of February 2000 and a sketched map of the district indicating the place where the bodies of her sisters had been discovered. The applicant also referred to the Court’s judgments Khashiyev and Akayeva v. Russia (Nos. 57942/00 and 57945/00, 24 February 2005), Makhauri v. Russia (No. 58701/00, 4 October 2007), Tangiyeva v. Russia (No. 57935/00, 29 November 2007), Goncharuk v. Russia (No. 58643/00, 4 October 2007), and Goygova v. Russia (No. 74240/01, 4 October 2007), and the witness statements contained therein, stating that the events she complained of had been examined by the Court in those judgements and that they concerned the same events which had taken place in the Staropromyslovskiy District of Grozny in January 2000.

 

  1. Information submitted by the Government

 

  1. The Government did not challenge the matter as presented by the applicant. They stated that the circumstances of the events were still under criminal investigation and that unidentified persons had killed the applicant’s sisters.

 

  1. The official investigation of the murder

 

  1. Information submitted by the applicant

 

  1. The death of Shema and Shamani Inderbiyeva was initially investigated as part of criminal case No. 12038 opened on 3 May 2000 by the Grozny Town Prosecutor’s Office (the town prosecutor’s office). The criminal investigation was initiated after the publication in the newspaper Novaya Gazeta on 27 April 2000 of an article entitled «Freedom or death» concerning the mass murder of civilians by servicemen of the 205th brigade on 19 January 2000 (in the documents submitted the date was also referred to as 19 February 2000) in Grozny.
  2. On 5 and 17 July 2000 the applicant’s other sister Mobarik Inderbiyeva (in the documents submitted also spelt Moberik) and her mother Yakhita Inderbiyeva were questioned by the investigators.
  3. The applicant was neither kept informed of the progress in the investigation of criminal case No. 12038 nor granted victim status in the criminal case.
  4. On 2 July 2003 the Staropromyslovskiy District Prosecutor’s Office in Grozny (the district prosecutor’s office) opened criminal case No. 50080 in connection with the murder of the applicant’s sisters.
  5. On 6 December 2007 the applicant requested that the investigators allow her to access the investigation file. On 10 December 2007 her request was granted in part and she was able to obtain copies of a few basic procedural decisions.
  6. On 15 April 2008 the applicant complained to the Staropromyslovskiy District Court of Grozny (the district court) that the investigation in criminal case No. 50080 was ineffective. She requested that the court order the district prosecutor’s office to resume the investigation and conduct it in a thorough and effective manner.
  7. On 19 May 2008 the district court rejected the applicant’s complaint stating that on 16 May 2008 the district prosecutor’s office had already resumed the investigation of the criminal case.
  8. According to the applicant, throughout the investigation the authorities failed to provide her with information on the progress of the criminal proceedings in case No. 50080.

 

  1. Information submitted by the Government

 

  1. On 3 May 2000 the town prosecutor’s office opened criminal case No. 12583 in connection with the publication of the article «Freedom or death» in Novaya Gazeta concerning the mass murder of civilians on 19 February 2000 by the 205th brigade of the Russian military forces in the Katayama (also spelt Katoyama) settlement in the Staropromyslovskiy District of Grozny.
  2. On 17 June 2000 the investigators from the town prosecutor’s office questioned the applicant who stated that on 9 February 2000 she had returned to Grozny from Ingushetia and found out that her sisters Shema and Shamani had been killed by servicemen from military unit No. 3737. On the same date she had found her sisters’ bodies in the basement at No. 154B Pugacheva Street and had subsequently buried them at a cemetery in the Achkhoy-Martan District.
  3. On the same date the investigators questioned the applicant’s sister Mobarik Inderbiyeva who stated that on 12 February 2000 the applicant had returned home with the remains of their sisters Shema and Shamani who had been blown up by military servicemen with a flamethrower on 10 January 2000 while they had been hiding in the basement. The witness further stated that she had been able to identify the remains of her sisters by their personal belongings, pieces of hair, remaining facial features and teeth crowns. The witness stressed that her sisters could have been killed only by Russian soldiers as the area in question had at the time been under the full control of the Russian military and it had been impossible for persons who had not belonged to the federal forces to access the premises without a special pass.
  4. On 5 July 2000 the investigators questioned the applicant’s mother Yakhita Inderbiyeva who stated, amongst other things, that at some point in January 2000 the applicant had told her that she had found the burnt remains of her daughters Shema and Shamani in the basement next to the pavilion.
  5. On 27 July 2000 the investigators questioned Ms Ya.Z. whose statement concerning the circumstances surrounding the death of the applicant’s sisters the Government did not give to the Court.
  6. On 11 June 2003 the Chechnya Prosecutor’s Office forwarded part of criminal case file No. 12038 to the district prosecutor’s office to be severed into a separate criminal case. The relevant part of the file concerned the discovery by the applicant on 12 February 2000 of the burnt bodies of her sisters Shema and Shamani Inderbiyeva.
  7. On 16 June 2003 the investigators in criminal case No. 12583 requested that the military prosecutor of the United Group Alignment (the UGA) inform them which military units had participated in the military operation in the Staropromyslovskiy District of Grozny in January and February 2000.
  8. On 25 June 2003 an investigator from the district prosecutor’s office initiated a preliminary inquiry into the discovery by the applicant of her sisters’ bodies.
  9. On 2 July 2003 the district prosecutor’s office opened criminal case No. 50080 under Article 105 § 2 of the Russian Criminal Code (murder) in connection with the discovery on 12 February 2000 of the bodies of Shema and Shamani Inderbiyeva in the basement situated across the courtyard from the block of flats at No. 154B Pugacheva Street in Grozny.
  10. On 3 July 2003 the investigators examined the crime scene at No. 154B Pugacheva Street. Nothing was collected from the scene.
  11. On 29 July 2003 the investigators requested that the Staropromyslovskiy District Department of the Interior (the ROVD) identify any witnesses to the applicant’s sisters’ murder and that those witnesses be brought in for questioning.
  12. In reply to the above request, on 1 August 2003 the ROVD informed the investigators that the applicant’s mother and Ms Ya.Z. had been summoned for questioning.
  13. On 15 September 2003 the investigators again requested that the ROVD identify witnesses to the murder, bring the applicant, her mother, her sister Mobarik Inderbiyeva and Ms Ya.Z. for questioning and identify the place of the applicant’s sisters’ burial.
  14. On 17 September 2003 the ROVD reported to the investigators that it was impossible to establish other witnesses to the events, other than the applicant and Mobarik Inderbiyeva, as the buildings in the area had been destroyed as a result of the armed hostilities and residents who had resided there in 2000 had moved elsewhere.
  15. On 17 September 2003 the applicant provided the ROVD officers with a short statement concerning the circumstances surrounding the discovery of her sisters’ bodies and stated that her mother Yakhita Inderbiyeva had developed a mental illness as a result of her daughters’ murder.
  16. On 23 September 2003 the investigators again requested that the ROVD identify the witnesses to the events and bring them for questioning stating that the ROVD had provided them with superficial replies and failed to take meaningful steps to identify the witnesses.
  17. On 5 October 2003 the investigators granted the applicant victim status in criminal case No. 50080 and questioned her. The applicant stated that on 9 February 2000 she had gone from Ingushetia to visit her sisters and mother in Grozny. On 10 February 2000 she had gone to Pugacheva Street where she had met a woman who had told her that her mother had became mentally ill and was living in a basement situated in a former dentist’s office. The applicant had found her mother in an incoherent state. Then the applicant had met an elderly, ethnically Russian couple and the woman had told her about the circumstances of her sisters’ murder by servicemen from military unit No. 3737. According to the woman, the soldiers had conducted a «sweeping-up» operation in the area; they had pulled Yakhita Inderbiyeva out from the basement and let her go, but they had killed her daughters Shema and Shamani who had remained in the basement, with a flamethrower. Then the applicant had gone to the basement, found the burnt bodies of her sisters and had taken the remains to the village of Valerik for burial.
  18. On 17 October 2003 the investigators ordered that the bodies of Shema and Shamani Inderbiyeva be exhumed.
  19. On 21 October 2003 the investigators examined the bodies. It was impossible to establish any traces of physical violence, other than burns, owing to the state of decomposition.
  20. On 22 October 2003 the investigators ordered forensic medical examinations of the remains of Shema and Shamani Inderbiyeva and requested that the experts determine the cause of their death, possible origins and the extent of the injuries, traces of gunshot wounds and their number.
  21. On 23 October 2003 the Chechnya Bureau of Forensic Expert Evaluations (the Bureau) reported to the investigators that the state of the bodies of Shema and Shamani Inderbiyeva, which must have been exposed to high temperatures, precluded them from obtaining the information necessary to reply to the investigators’ questions.
  22. On 2 November 2003 the investigation in criminal case No. 50080 was suspended for failure to identify the perpetrators.
  23. On 3 April 2004 (in the documents submitted the date was also referred to as 1 April 2004) the deputy Chechnya prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to resume the proceedings and take a number of steps, such as identifying the servicemen from military unit No. 3737 who had participated in the military operation in the Staropromyslovskiy District of Grozny in January 2000 and providing an explanation of the differences in the witness statements given by the applicant, her sister Mobarik Inderbiyeva and Ms Ya.Z.
  24. On 10 April 2004 the investigators again requested that the ROVD identify among the neighbourhood’s residents the witnesses to the applicant’s sisters’ murder.
  25. On 12 April 2004 the investigators again examined the crime scene; no evidence was collected.
  26. On various dates in April 2004 the investigators questioned a number of witnesses, including Ms M.S., Mr R.M., Ms M.Ib., Ms T.Sh., Ms Kh.D., Mr R.Kh., Mr A.Kh., Ms F.M., Ms M.Kh., and Ms M.O., all of whom stated that at the material time they had lived elsewhere and had not witnessed the events in question; however, at some point they had learnt from their relatives and neighbours that the applicant’s sisters Shema and Shamani had been killed by Russian servicemen and their corpses had been found later in the basement.
  27. On 15 May 2004 the investigators requested that the Central Archives of the Russian Ministry of the Interior (the MVD) provide them with the following information:

«…the investigation established the involvement in the crime [the murder of the applicant’s sisters] of military servicemen from military brigade No. 205.

According to the reply from the North-Caucasus Headquarters of the Internal Troops of the Ministry of the Interior to our request for information, documents concerning special operations conducted in the Chechen Republic in 1999, 2000, 2001 and 2002 were transferred to the Central Archives of the Ministry of the Interior.

Based on the above information, I ask you… to identify which regiments of which military units and troops of the Ministry of the Interior carried out their service duties or were stationed between October 1999 and February 2000 inclusive in the Staropromyslovskiy District of Grozny… and to establish the location of these regiments and units at present…

…you are also requested to declare which troops of military brigade No. 205 of the Russian Military Forces participated in the military operation in Grozny… between October 1999 and February 2000 in the Staropromyslovskiy District of Grozny…»

  1. On 16 May 2004 the investigators again requested that the ROVD identify the witnesses to the events, including the elderly Russian couple who had informed the applicant of the circumstances of her sisters’ murder, and bring them for questioning.
  2. On 8 June 2004 the investigation in the criminal case was again suspended for failure to identify the perpetrators.
  3. On 9 July 2004 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to resume it and take a number of steps, such as identifying the servicemen from military unit No. 3737 who had participated in the military operation in the Staropromyslovskiy District of Grozny in January 2000. The prosecutor also ordered the investigators to provide an explanation of the differences in the witness statements given by the applicant, her sister Mobarik Inderbiyeva and Ms Ya.Z., and to identify the elderly Russian couple who had informed the applicant about the circumstances of her sisters’ murder.
  4. On 15 July 2004 the investigators again questioned the applicant’s sister Mobarik Inderbiyeva who stated that she had found out about the circumstances of her sisters’ murder from the applicant and that the area where her sisters had been killed had at the time been under the full control of the Russian military.
  5. On 2 August 2004 the investigators questioned Mr I.A. who stated that he had not witnessed the murder, but had learnt from his relatives and neighbours that the applicant’s sisters had been killed during a «sweeping-up» operation by Russian military servicemen who had been called by the local population «the jailers» («тюремщики»).
  6. On the same date, 2 August 2004, the investigators questioned Mr A.G. whose statement about the events was similar to the one given by Mr I.A.
  7. On 9 August 2004 the investigation in the criminal case was suspended for the third time for failure to identify the perpetrators.
  8. On 18 October 2004 the supervising prosecutor overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps ordered on 9 July 2004. The investigation was resumed on the same date.
  9. On 21 October 2004 the investigators questioned Mr K.S. whose statement about the events was similar to that given by Mr I.A. (see paragraph 56 above).
  10. On 18 November 2004 the investigation in the criminal case was suspended for the fourth time for failure to identify the perpetrators.
  11. On 14 December 2004 the supervising prosecutor again overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps, including those ordered on 9 July and 18 October 2004. The investigation was resumed on the same date and the applicant was informed of this decision.
  12. On 14 January 2005 the investigation in the criminal case was again suspended for failure to identify the perpetrators without having taken any of the steps ordered by the supervising prosecutor.
  13. On 27 January 2005 the investigators requested that the ROVD identify the witnesses to the murder and bring them for questioning. On the same date the investigators requested that the Archives of the North-Caucasus Military Circuit inform them which military unit had been stationed in the area of the events at the material time.
  14. On 6 December 2007 the applicant complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators allow her to access the investigation file.
  15. On 10 December 2007 the investigators granted the applicant’s request in part and allowed her to access the procedural documents reflecting the investigative steps taken with her participation.
  16. On 8 April 2008 the applicant again complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators grant her access to the investigation file and resume the criminal proceedings. No reply was given to this request.
  17. On 16 May 2008 the supervising prosecutor again overruled the decision to suspend the investigation as unsubstantiated and premature and ordered the investigators to take the necessary steps, including those ordered on 9 July, 18 October and 14 December 2004. The investigation was resumed on the same date.
  18. On 20 May 2008 the investigators requested that the investigative department of the UGA assist them in identifying the military unit which had been stationed in the area of the events in January and February 2000, provide them with a list of its servicemen for the period and inform them of the stationing of the military unit at present.
  19. On 2 June 2008 the investigators questioned Ms Ya.Z. The Government did not furnish a copy of this statement to the Court either (see paragraph 29 above).
  20. On 9 June 2008 the ROVD informed the investigators that it was impossible to establish the identities of the elderly Russian couple who had witnessed the applicant’s sisters’ murder.
  21. On 16 June 2008 the investigation in the criminal case was suspended for the sixth time for failure to identify the perpetrators.
  22. On 26 June 2008 the applicant again complained to the district prosecutor’s office that the investigation into her sisters’ murder was ineffective and requested that the investigators grant her access to the investigation file and resume the criminal proceedings.
  23. On 30 June 2008 the investigators replied to the applicant’s complaint stating that she was entitled to a copy of the last decision to suspend the investigation.
  24. On an unspecified date in January 2009 the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered the investigators to take the necessary steps. The Government did not furnish the Court with a copy of this document.
  25. On 19 January 2009 the investigation in the criminal case was resumed.
  26. The Government submitted that although the investigation had failed to establish the perpetrators of the murder of Shema and Shamani Inderbiyeva, the proceedings were still in progress. The information gathered by the investigators demonstrated that the applicant’s sisters had been killed by unidentified persons and that «it cannot be seen from the case file that Shema and Shamani Inderbiyeva were killed as a result of the use of lethal force by representatives of the State». The Government further submitted that the domestic authorities had been taking all possible steps to have the crime resolved.

 

  1. In reply to the Court’s request for the full contents of the investigation file in criminal case No. 50080, the Government stated in a Memorandum of 20 January 2010 that they enclosed the contents of the criminal case file «in full» and that it ran to 171 pages. However, from the documents submitted and their pagination it follows that a number of documents, such as witness statements, were not furnished by the Government and no explanation had been given for the failure to submit the remaining documents to the Court.

 

  1. Relevant domestic law

 

79. For a summary of the relevant domestic law see Goygova v. Russia (No. 74240/01, §§ 63 — 64, 4 October 2007).

1   2   3   4

Добавить комментарий

Ваш e-mail не будет опубликован.

*

code