<\/span><\/a><\/span><\/p>\nComplaints<\/span><\/span><\/p>\nRelying in particular on Articles 2, 3, 5 and 13, the applicant alleged that her son disappeared after being unlawfully detained by Russian servicemen and that the domestic authorities failed to carry out an effective investigation into her allegations, which caused her psychological suffering.<\/span><\/p>\nDecision of the Court<\/span><\/span><\/p>\nArticle 2 (disappearance)<\/span><\/span><\/p>\nThe Court noted that the applicant\u2019s allegations had been supported by witness statements collected by her and by the investigation. It further found that the fact that a large group of armed men in uniform in broad daylight, equipped with military vehicles, had proceeded to check identity documents and opened fire had strongly supported the applicant\u2019s allegation that those had been State servicemen conducting a security operation. Having drawn inferences from the Government\u2019s failure to submit the documents which were in their exclusive possession or to provide a plausible explanation for the events in question, the Court considered that Khizir Tepsurkayev had been taken away on 27\u00a0August 2001 by State servicemen during an unacknowledged security operation. In his absence or of any news about him for several years, and given the failure of the Government to justify his abduction, the Court concluded that he should be presumed dead and his death could be attributed to the State. Accordingly, there had been a violation of Article 2 in respect of him.<\/span><\/p>\nArticle 2 (investigation)<\/span><\/span><\/p>\nThe Court noted that the authorities had been made aware of Khizir Tepsurkayev\u2019s abduction immediately. However, the investigation had been opened almost five months later and a number of essential investigative steps had been significantly delayed or not taken at all. Finally, the Court noted that the investigation had been suspended and resumed on numerous occasions and that there had been lengthy periods of inactivity when no proceedings were pending. Further, the Town Court had criticised deficiencies in the proceedings and ordered remedial measures; it appeared, however, that its instructions had not been complied with. Accordingly, the authorities had failed to carry out an effective investigation, in violation of Article 2.<\/span><\/p>\nArticle 3 (psychological suffering)<\/span><\/span><\/p>\nThe Court noted that the applicant, mother of the disappeared person, had had no news of him for more than seven years. Given that there had been no plausible explanation about what had happened after Khizir Tepsurkayev\u2019s detention, the Court concluded that there had been a violation of Article 3 as a result of the applicant\u2019s psychological suffering.<\/span><\/p>\nArticle 5 (unlawful detention)<\/span><\/span><\/p>\nGiven that Khizir Tepsurkayev had been held in unacknowledged detention without any of the safeguards contained in Article 5, this had constituted a particularly grave violation of the right to liberty and security as enshrined in Article 5.<\/span><\/p>\nArticle 13 (right to an effective remedy) in conjunction with Article 2<\/span><\/span><\/p>\nThe Court held that, given that the criminal investigation into Khizir Tepsurkayev\u2019s abduction had been ineffective, the effectiveness of any other remedy that may have existed, including civil remedies suggested by the Government, had been undermined, in violation of Article\u00a013 of the Convention.<\/span><\/p>\n***<\/span><\/p>\nCASE OF MUTSAYEVA v. RUSSIA<\/span><\/span><\/p>\n(Application no. 24297\/05)<\/span><\/span><\/p>\nJUDGMENT<\/span><\/p>\nSTRASBOURG<\/span><\/p>\n23 July 2009<\/span><\/p>\nThis judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/span><\/span><\/p>\n
<\/span><\/p>\nIn the case of Mutsayeva v. Russia,<\/span><\/p>\nThe European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/span><\/p>\nChristos Rozakis, President,
\n<\/span> Nina Vaji\u0107,
\n<\/span> Anatoly Kovler,
\n<\/span> Elisabeth Steiner,
\n<\/span> Khanlar Hajiyev,
\n<\/span> Dean Spielmann,
\n<\/span> Sverre Erik Jebens, judges,
\n<\/span>and S\u00f8ren Nielsen, Section Registrar<\/span>,<\/span><\/p>\nHaving deliberated in private on 2 July 2009,<\/span><\/p>\nDelivers the following judgment, which was adopted on that date:<\/span><\/p>\nPROCEDURE<\/span><\/p>\n1.\u00a0\u00a0The case originated in an application (no. 24297\/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Russian nationals, Ms Zara Mutsayeva (also known as Tepsurkayeva) and Mr Abdul-Khamit Tepsurkayev, on 9 June 2005.<\/span><\/p>\n2.\u00a0\u00a0Ms Zara Mutsayeva and Mr Abdul-Khamit Tepsurkayev were represented before the Court by lawyers of EHRAC\/Memorial, a non-governmental organisation with offices in Moscow and London. Mr Abdul-Khamit Tepsurkayev died on 10 January 2006 and Ms Zara Mutsayeva (\u201cthe applicant\u201d) decided to pursue the application on behalf of herself and her disappeared son. The Russian Government (\u201cthe Government\u201d) were represented by their Agent, Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n3.\u00a0\u00a0On 1 September 2005 the Court decided to apply Rule\u00a041 of the Rules of Court and to grant priority treatment to the application.<\/span><\/p>\n4.\u00a0\u00a0On 11 March 2008 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 \u00a7 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.<\/span><\/p>\n5.\u00a0\u00a0The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.<\/span><\/p>\nTHE FACTS<\/span><\/p>\nI.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n6.\u00a0\u00a0The applicant was born in 1953; she and her husband Mr Abdul-Khamit Tepsurkayev were the parents of Khizir Tepsurkayev, who was born in 1980. The applicant lives in Urus-Martan.<\/span><\/p>\n7.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/span><\/p>\nA.\u00a0\u00a0Disappearance of Khizir Tepsurkayev and subsequent events<\/span><\/p>\n1.\u00a0\u00a0The applicant’s account<\/span><\/p>\n8.\u00a0\u00a0The applicant did not eyewitness the events. The description of the circumstances surrounding the abduction of Khizir Tepsurkayev is based on the witness accounts provided by the applicant, her husband, Mr\u00a0A.\u00a0Ruslanbek and Mr A. Alvi.<\/span><\/p>\n9.\u00a0\u00a0At about 9 a.m. on 27 August 2001 Khizir Tepsurkayev left his house in Urus-Martan to go to the Town Court, located in the centre of the town. He was supposed to meet there with the chairman of the court to discuss his future employment as a policeman and the chairman’s guard. On his way to the centre, at the corner of Pervomaiskaya and Ordzhonikidzevskaya Streets, Khizir Tepsurkayev met his acquaintance A. Said-Arbi. The two men were talking when a VAZ-2107 car pulled up next to them. The driver, B. Mairbek, offered Khizir Tepsurkayev and A. Said-Arbi a lift with him to the centre of town. A. Said-Arbi declined the offer, explaining that he had left his passport at home and that he would need it because a sweeping operation was taking place in the centre. Khizir Tepsurkayev accepted the offer of a lift and got into the car. It appears that Khizir Tepsurkayev was not aware of the fact that B. Mairbek and his car were on the authorities’ wanted list.<\/span><\/p>\n10.\u00a0\u00a0At about 10 a.m. the car approached the building of the former Military Commissariat on Kalanchakskaya Street. There was a group of Russian servicemen there from military unit no.\u00a06779. The group consisted of policemen from Bashkortostan and was stationed on the eastern edge of Urus-Martan. One of Khizir Tepsurkayev’s acquaintances, police officer A.Ruslanbek, was with the group. The commander of the group was officer V. Vasiliy. The group, accompanied by military cars and APCs (armoured personnel carriers), was participating in a special operation and was conducting identity checks. The servicemen were stopping and searching every car. Many people were in the area at the time, as the checks were being carried out next to the local farmers’ market. When the soldiers stopped B. Mairbek’s car, Khizir Tepsurkayev got out of the car and showed his identity documents. The officers checked them and gave them back. At that moment someone in an APC shouted that the car was on the wanted list and the driver should be arrested. B. Mairbek turned his car around and drove away as the servicemen opened fire.<\/span><\/p>\n11.\u00a0\u00a0After the car had left, commander V. Vasiliy immediately ordered the soldiers to detain Khizir Tepsurkayev. The soldiers started beating him. One of the soldiers hit Khizir Tepsurkayev on the forehead with the butt of his rifle, causing bleeding. During the beatings Khizir Tepsurkayev called for help. He called the name of his acquaintance, D. Yaragi, who lived nearby. The latter heard him and approached the crowd, but could not get through to Khizir Tepsurkayev because the soldiers started firing over the heads of the crowd. Khizir Tepsurkayev was forced into one of the APCs.<\/span><\/p>\n12.\u00a0\u00a0Another eyewitness, police officer A. Alvi (also mentioned in the submitted documents under the name of A. Aslan), participated in the special operation with another group of servicemen. He was close to the market when he heard the gunfire. Upon approaching the crowd he was told by bystanders that the officers had taken a young man, beaten him and were about to take him away in an APC. Then a group of officers from the temporary department of the interior of the Urus-Martan District (\u201cthe VOVD\u201d) arrived in a UAZ (\u201ctabletka\u201d<\/span>) vehicle. Khizir Tepsurkayev was taken from the APC and placed into the UAZ car, which drove away. A.\u00a0Alvi immediately reported Khizir Tepsurkayev’s removal to his superiors at the VOVD.<\/span><\/p>\n13.\u00a0\u00a0After Khizir Tepsurkayev had been taken away, the group under V.\u00a0Vasiliy’s command continued the special operation. The UAZ car which had taken Khizir Tepsurkayev away returned in half an hour. When A.\u00a0Ruslanbek asked the officers in the car where they had taken Khizir Tepsurkayev, they refused to answer. A. Ruslanbek immediately reported Khizir Tepsurkayev’s removal to his superiors at the district department of the interior.<\/span><\/p>\n14.\u00a0\u00a0Approximately half an hour after Khizir Tepsurkayev was taken away, in the morning of 27 August 2001, a boy came to the applicant’s house and told her and her husband that their son had been abducted at the local market. The applicant and her husband immediately started searching for Khizir Tepsurkayev.<\/span><\/p>\n15.\u00a0\u00a0The applicant and her husband went to the VOVD and inquired about their son. They were told that Khizir Tepsurkayev was not there. The applicant’s husband asked an employee of the Urus-Martan administration, Mr G., about his son. The latter was familiar with the situation and told him that B. Mairbek’s car was on the wanted list, that Khizir should not have got into the car and that nothing could be done to assist the applicant and her husband in attempting to have their son released.<\/span><\/p>\n16.\u00a0\u00a0On 28 August 2001 the applicant’s husband contacted the former Mayor of Grozny, Mr M., who went with him to the VOVD. An investigator from the department acknowledged that Khizir Tepsurkayev had been detained by the department and that he \u201cwould need to work with him\u201d.<\/span><\/p>\n17.\u00a0\u00a0Each day for two months, from morning until evening, the applicant and her husband waited for their son at the entrance to the VOVD. They asked everyone who entered or left the building about Khizir Tepsurkayev. Some of those who had also been detained during the special operation on 27 August 2001 and had been released later on, including the applicant’s neighbour, told the applicant and her husband that they had heard the police mention the surname of Khizir Tepsurkayev in the halls of the VOVD.<\/span><\/p>\n2.\u00a0\u00a0Information submitted by the Government<\/span><\/p>\n18.\u00a0\u00a0The Government did not challenge most of the facts as presented by the applicant. According to their observations of 3 July 2008 \u201c…the Urus-Martan district prosecutor’s office opened criminal case no.\u00a061008 in connection with the abduction in Urus-Martan of Kh. Tepsurkayev. The case was opened under Article 126 \u00a7\u00a01 of the Criminal Code upon receipt of information from the office of the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic…\u201d<\/span><\/p>\nB.\u00a0\u00a0The official investigation into the disappearance<\/span><\/p>\n1.\u00a0\u00a0Information submitted by the applicant<\/span><\/p>\n19.\u00a0\u00a0Since 27\u00a0August 2001 the applicant and her husband have contacted, both in person and in writing, various official bodies, such as the Envoy of the President of the Russian Federation for Ensuring Human Rights and Freedoms in the Chechen Republic, the Urus-Martan District administration, the Chechen administration, a member of the Russian State Duma, military commanders’ offices and prosecutors’ offices at different levels, and detention centres in Chechnya and other regions of the Russian Federation, describing in detail the circumstances of their son’s abduction and asking for help in establishing his whereabouts. The applicant retained copies of a number of those letters and submitted them to the Court.<\/span><\/p>\n20.\u00a0\u00a0On the morning of 27 August 2001 the applicant and her husband went in person to the VOVD with a complaint about their son’s detention. It appears that on the same day Mr A. Ruslanbek and Mr A. Alvi reported Khizir Tepsurkayev’s removal to their superiors.<\/span><\/p>\n21.\u00a0\u00a0On 1 September 2001 the applicant’s husband wrote to the Urus-Martan District prosecutor’s office (\u201cthe district prosecutor’s office\u201d) with a request for assistance in finding his son. He described the circumstances of his son’s removal by security forces and stated that his son had been taken away in a military UAZ car to the VOVD.<\/span><\/p>\n22.\u00a0\u00a0On 3 September 2001 the applicant’s husband wrote to the military commander’s office of the Urus-Martan District (\u201cthe district military commander’s office\u201d) with a request for assistance in finding his son. He described the circumstances of his son’s abduction and stated that his son had been taken away in a military UAZ car to the VOVD.<\/span><\/p>\n23.\u00a0\u00a0On 8 September 2001 the district prosecutor’s office forwarded the request of the applicant’s husband to the military prosecutor in Moscow.<\/span><\/p>\n24.\u00a0\u00a0On 25 January 2002 the district prosecutor’s office instituted an investigation into the disappearance of Khizir Tepsurkayev under Article\u00a0126 \u00a7\u00a01 of the Criminal Code of the Russian Federation (kidnapping) (from the submitted documents it appears that the investigation also referred to Article 126 \u00a7\u00a02 of the Criminal Code of the Russian Federation (aggravated kidnapping)). The case file was given number 61008 (in the submitted documents the case file was also referred to under no.\u00a062008).<\/span><\/p>\n25.\u00a0\u00a0On 14 May 2002 the applicant wrote to the district military commander’s office with a request for assistance in finding her son. She complained that her letters to various authorities had produced no results.<\/span><\/p>\n26.\u00a0\u00a0On 30 June 2002 the Department of Federal Security Service in the Chechen Republic (the Chechnya FSB) informed the applicant that her request of 28 June 2002 had been forwarded for further examination to the military prosecutor’s office of military unit no. 20102.<\/span><\/p>\n27.\u00a0\u00a0On 1 July 2002 the applicant wrote to the Prosecutor General of the Russian Federation. In her letter she stated that on 27 August 2001 her son had been detained by representatives of the Russian federal forces under the command of V. Vasiliy and taken to the VOVD. She stated that her numerous complaints to various State authorities had produced no results and that the authorities had failed to conduct an investigation in the criminal case opened in connection with her son’s disappearance. She asked for assistance in establishing the whereabouts of Khizir Tepsurkayev.<\/span><\/p>\n