AS TO THE ADMISSIBILITY OF
Application no. 59334/00
by Arbi CHITAYEV and Adam CHITAYEV
The European Court of Human Rights (First Section), sitting on 30 June 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 19 July 2000,
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,
Having deliberated, decides as follows:
The applicants are Arbiy (Arbi) Salaudovich Chitayev, born in 1964, and Adam Salaudiyevich Chitayev, born in 1967. They are brothers. The applicants are Russian nationals and residents of Chechnya. They are represented before the Court by the Stichting Russia Justice Initiative (SRJI), an NGO based in the Netherlands with offices in Moscow and in Ingushetia, Russia. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case are partially in dispute between the parties. They may be summarised as follows.
The first applicant, an engineer by profession, lived with his wife and two children in Staraya Sunzha, a suburb of Grozny. The first applicant's son, Alu, born in 1994, is diagnosed with primary hydrocephalous, and has been in a coma since surgery performed in September 1999. The second applicant, a school teacher by profession, lived in Kazakhstan and moved to Chechnya in 1999 with his wife and two children. In the autumn of 1999 hostilities started in Chechnya between the Russian military forces and Chechen fighters. The city and its suburbs were the targets of wide-scale attacks by the Russian military. In October 2000 a housing agency in Grozny certified the destruction of the first applicant's flat as a result of the hostilities.
Fearing the attacks, the applicants moved their families and valuables to their father's house at 28 Matrosova Street in the town of Achkhoy-Martan. The applicants submit that the following items were stored in the house, among other things: the first applicant's tape-recorder, a hi-fi system, a video camera and the second applicant's TV set and a video player. Other items of electronics and clothing, belonging to other family members, were also stored in the house. The documents and purchase receipts for the valuables were kept separately in a suitcase. Most items were stored in one room of the house and in the cellar.
1. Search on 15 January 2000
On 15 January 2000 servicemen of the Achkhoy-Martan temporary District Office of the interior - “VOVD” (временный РОВД) - searched the house for firearms. The applicants submit that the search was not officially authorised or documented. The servicemen took with them a new packaged cordless telephone set with batteries and an antenna.
On 18 January 2000 the second applicant complained to the head of the VOVD about the unlawfulness of the search and asked for the phone to be returned. It appears that at the beginning of March 2000, following the applicants' father's submitting request to the district military prosecutor, the phone was returned.
According to the information submitted by the Government, on 15 January 2000 the officers of the Achkhoy-Martan VOVD checked (проверка) the house at 32 [not 28] Matrosova Street. During the check, the applicants' father voluntarily submitted a radio station FT-26 and a personal military card of serviceman B., who had been earlier kidnapped by unidentified persons, as well as “other items not belonging to him”. Later these items were apparently recorded as including a transmitting and receiving antenna and a cable, 14 batteries for portable radio stations BP-196, technical documentation to the radio stations in foreign languages, a camouflage cloak, a bullet-proof vest, 11 registration plates for cars and tractors. Following voluntary surrender of the items, a formal note (акт) was drawn up, and on 4 February 2000 an investigator of the Achkhoy-Martan VOVD decided not to open criminal investigation. This decision was quashed on 18 April 2000 and the materials were joined to the criminal proceedings opened against the applicants. The Government did not submit copies of these documents.
2. Search and arrests on 12 and 14 April 2000
On 12 April 2000 at about 8 or 9 a.m. several servicemen of the Achkhoy-Martan VOVD again came to the house at 28 Matrosova Street. Both applicants were at home at that time, with their families. The applicants submit that the servicemen, whom they knew to be on duty shift from the Voronezh region, searched the house. They did not produce any warrants or official justification for their action. They seized several items, including a portable computer, a cordless telephone set, documents for equipment and personal documents of some of the family members. They then asked the applicants to come with them to the VOVD for a few hours to help them to deal with the paperwork.
The applicants submit that once they were in the car, the servicemen told them that they had been arrested and started to beat them. They were taken to the Achkhoy-Martan VOVD and put into separate cells.
In the meantime at about 12 p.m. on the same day the applicants' house was again searched. The applicants submit accounts of the second search made by their sister and neighbours. They state that about 30 servicemen with two cars arrived to the house and took away all the electronic equipment found in the house, including a printer, TV sets and video equipment. No official justification for the search and seizure had been presented. The applicants presented an undated list of 14 items seized from their house, countersigned by their mother Zina Chitayeva, two witnesses and detective Vlasenko from the Achkhoy-Martan VOVD. It lists four TV sets, two video players, a printer, a heater, “two folders with documents”, video and audio tapes, charging devices.
The Government submit that on 12 April 2000 the applicants' house was “examined” (осмотр) by an investigator of the Achkhoy-Martan VOVD in the presence of witnesses. There were found eight military coats and four military jackets, all with numbers and personal details of the servicemen. There were also found details from a radio transmitting device, “tapes with recordings of Shamil Basayev's interview, a video tape with a documentary 'Nokhcho Chechnya – the Day of Freedom', photographs of exhumation, photographs of Arbi Chitayev with arms, computer and diskettes with information concerning tapping of radio and telephone conversations of the members of the Government of Chechnya in 1998, lists of mobile phones of the leadership of Chechnya and the leaders of the illegal armed groups, outlines of eavesdropping transmitters, and other materials that could be indicative of the applicants' participation in illegal armed groups.” The Government submitted no documents relating to the “examination” and the seizure of such items.
In the evening of the same day, on 12 April 2000, the applicants' relatives went to the VOVD to establish their whereabouts. They were informed that the brothers had been asked to help out with paperwork and would soon return home.
On 14 April 2000 at about 2 p.m. the applicants' father, Salaudi Chitayev, went to the VOVD to find out where his sons were. The servicemen informed him that the brothers had been detained, because they were suspected of kidnapping Russian soldiers for ransom. The suspicion was allegedly based on the soldiers' uniformed overcoats, found in the house. The applicants' father replied that these were old style Soviet military overcoats, no longer used in the army, that his sons had brought them back from the service in the Soviet army and that he had used them for various household needs. The applicants' father was also arrested, and detained until 29 April 2000. His relatives were told that he had been detained for violation of the curfew regulations. He submits that he was not properly informed of the reasons for his detention. His detention was not documented in any way.
3. The applicants' detention at the Achkhoy-Martan VOVD
b. The applicants' submissions
The applicants were detained in the Achkhoy-Martan VOVD for 17 days, until 28 April 2000. They submit that during the detention they were questioned about the activities of the Chechen fighters and about kidnappings for ransom. The applicants denied all allegations.
The applicants submit that during the detention and interrogations, which took place in a cell situated on the third floor of the VOVD building, they were subjected to various forms of torture and ill-treatment: they were handcuffed to a chair and beaten; electric shocks were applied to various parts of their bodies, including fingertips and ears; they were forced to stand for a long time in a stretched position, with feet and hands spread wide apart; their arms were twisted; they were beaten with rubber truncheons and with plastic bottles filled with water; they were strangled with adhesive tape, with a cellophane bag and a gas mask; dogs were set on them; parts of their skin were torn away with pliers.
In particular, the first applicant submits that he was interrogated on the first day of detention and told to sign a confession. When he refused, the interrogators handcuffed him to a chair and kicked him with their feet. They put a gas mask on his face and released cigarette smoke into it. The first applicant lost consciousness and was brought back to his cell. The following day he was again taken for questioning to the same room. Wires were applied to his fingertips and the interrogators turned the handle of a device, which they called a “lie detector”, and which gave the first applicant electric shocks.
The second applicant was also interrogated on the first day of detention. He was brought into a room with two servicemen, who told him to confess that he had been a fighter (boyevik) and that he had been involved in kidnappings. When the second applicant refused to sign a confession, he was placed against the wall, handcuffed and his mouth was covered with adhesive tape. One of the interrogators started to beat him on his back and sexual organs, while the other held a machine gun and threatened to shoot him if he moved. The second applicant was beaten for an hour and then taken back to his cell.
Several times during the detention the servicemen of the VOVD came into the cell and beat everyone who was inside.
Since there were no toilets in the cells, the detainees were taken out to the toilet one by one. They were forced to run all the way to the toilet and if they were slow, they were beaten with rifle butts and chased with dogs. In the toilet they were not allowed enough time. Sometimes they were not allowed to go to the toilet and had to urinate and defecate in the corridor in full view of the guards.
The cells were unheated and damp and the applicants were constantly suffering from cold.
b. The Government's position
The Government submit that on 17 April 2000 an investigator of the Achkhoy-Martan VOVD opened criminal investigation file no. 26009 (later renamed no. 59212) against the applicants, on suspicion of crimes committed under Articles 126 (kidnapping) and 208 (2) (participation in an unlawful armed group) of the Criminal Code. The results of the check (проверка) of 15 January 2000 and of the examination (осмотр) of 12 April 2000 served as the basis for the suspicion. No copies of these decisions were submitted.
The Government further stated that on 19 April 2000 the Prosecutor of the Achkhoy-Martan District authorised the applicants' detention under charges of kidnapping and participation in illegal armed groups. The applicants countersigned the orders on 20 April 2000. The Government submitted copies of these orders, which were forwarded for execution to the Chernokozovo pre-trial detention facility – SIZO.
According to the Government, on 20 April 2000 both applicants were formally charged with crimes committed under Articles 126 (kidnapping) and 208 (2) (participation in an unlawful armed group) of the Criminal Code. After 25 April 2000 the applicants received legal aid from a member of the Nazran (Ingushetia) bar Mr Tepsayev. No copies of relevant documents have been submitted.
4. The applicants' detention at the Chernokozovo SIZO
a. The applicants' submissions
The applicants submit that on 28 April 2000 they and some other detainees were taken out of the VOVD, blindfolded and put into a vehicle. The guards told them that they were going to execute them. Instead, they were brought to a place which they later learnt was the Chernokozovo SIZO. The detainees were unloaded, put on the ground and beaten. Then they were instructed to remember articles of the Criminal Code with which they had been charged. The applicants submit that they, as almost every other detainee, were told that they had been charged with Articles 126 and 208 (2). The applicants were not subjected to a medical check upon admission to the SIZO, as prescribed by the relevant legislation.
The applicants were then taken to cells. In the end of July 2000 the applicants were in the same cell for about three days, the rest of the time they remained in separate cells. The second applicant was detained in cell no. 27, which was very small and had room for three people, but no less than six were detained in it. The applicant had a mattress which he placed directly on the floor. The second applicant was also placed in cell no. 5, where he stayed for one month and a half, and then in cell no. 20, also for a month and a half.
The applicants submit that, while in detention in the Chernokozovo SIZO, they were questioned at first every two days and later about once a week. They were forced to run to the interrogation room with their head lowered and keeping hands clasped on the head, while the guards beat them on their backs. The interrogation room contained an iron table and a chair, and a hook on the wall. No official records were made during the interrogations. The applicants submit that they were told to confess or were simply beaten. They submit that the following forms of torture and ill-treatment were applied to them: they were beaten with boots, rifle butts and mallets on different parts of their bodies, in particular knee caps; threatened with a knife pressed against their fingers; tarpaulin gauntlets were put on them, thus tied to the hook and they were suspended from it and beaten; their fingers and toes were squashed with mallets and a safe door; their hands and feet were tied together behind their backs (“sparrow” position); they were strangled with adhesive tape or cellophane bag; electric shocks were applied to their fingers.
They were also beaten by the guards when they were taken out of their cells for a few minutes “exercise”. The detainees were not allowed to pray under threat of being beaten and placed into a punishment cell. The second applicant was once punished in this way for praying in his cell.
During their stay in Chernokozovo, the applicants were allowed only one visit by their lawyer, Mr. Sharip Tepsayev, in May 2000. The applicants were allowed to meet with him one by one, in the presence of a serviceman. They were required to speak Russian during the meeting and the lawyer could only ask them how they were doing.
The conditions of detention improved in June 2000. The applicants explain this with the change of the guards' teams who were on duty shifts, first from Rostov-on-Don and then from Ryazan. They also believe it was related to the visit to the SIZO of the representatives of the International Committee of the Red Cross (ICRC), who first visited Chernokozovo on 14 June 2000. The second applicant talked to the representatives of the ICRC personally, in a confidential meeting, because he spoke English.
The first applicant submits that before the first visit of the ICRC representatives, many of the detainees were taken away in cars and they later told him that they had spent a day packed in cars in a forest until the representatives left.
There were two other visits by the ICRC representatives in August 2000. Through the ICRC, the applicants were able to exchange Red Cross messages with their family. In January 2001 the ICRC office in Nalchik, Kabardino-Balkaria, issued certificates to the applicants confirming that they had been visited by the ICRC in Chernokozovo on 14 June, 11 and 23 August 2000.
b. The Government's position
The Government stated that upon admission to Chernokozovo – on 26 April 2000 - the applicants were subjected to a medical examination, as prescribed by the relevant legal acts. The first applicant was diagnosed with a head trauma, no other injuries had been recorded. The Government submitted two documents issued by the SIZO in 2003, which stated that the first applicant, while in detention, had applied seven times for medical help in relation to the head trauma, and was proscribed medicines. The second applicant applied for medical help five times, in relation to a flu and chronic gastritis, and was also proscribed treatment.
On 21 October 2003 the SIZO issued a document which listed the cells where the applicants had been detained: the first applicant in cells nos. 10 (measuring 18 square metres), 2 (14 sq. m), 23 (18.8 sq m), 3 (12.8 sq m) and 10 (18 sq m). The second applicant was detained in cells nos. 5 (measuring 13.2 square metres), 20 (12,2 sq m), 3 and 27 (7 sq. m). The sanitary conditions of the cells are in conformity with the relevant norms, all cells are equipped with running water and toilets. The document further stated that the number of persons detained together with the applicants and other conditions of detention, such as individual sleeping berths, was in accordance with the relevant norms.
In other documents issued in 2003, the administration of the SIZO stated that the applicants did not send any letters or complaints while in detention, that they were provided with relevant legal information and advice, including access to the legal documents, that on 2 June 2000 they had a meeting with lawyer Tepsayev, and that no physical force or special devices had been used against the applicants between 26 April and 25 September 2000.
5. The applicants' release
On 19 September 2000 the applicants were brought to the Achkhoy-Martan VOVD. There for the first time they were officially informed that they had been charged under Articles 126 (2) and 208 (2) of the Criminal Code of kidnapping and participation in an unlawful armed group.
On 5 October 2000 the applicants were released from detention.
On 6 October 2000 the applicants were taken by their relatives to the Achkhoy-Martan hospital. They were examined by a general practitioner, neuropathologist and a surgeon. The first applicant was diagnosed with repeated craniocerebral traumas, resulting in intracranial hypertension and posttraumatic stress disorder, chronic bronchitis, chronic two-sided pyelonephritis, right-side neeruoctosis, asthenoneurotic syndrome, hypochromic anaemia, numerous blunt injuries to the head, body and extremities, chronic pneumonia of the left lung. The second applicant was diagnosed with repeated craniocerebral traumas, resulting in intracranial hypertension and posttraumatic stress disorder, numerous blunt injuries to the head, body and extremities and a trauma of the left knee cap; chronic pneumonia of the left lung and chronic left-sided pyelonephritis. The doctors noted that the traumas and diseases had been apparently received in the SIZO Chernokozovo in April - October 2000.
On 9 October 2000 the Office of the District Prosecutor of Achkhoy-Martan informed the first applicant that the criminal investigation file no. 59212 opened against him under Articles 126 (2) and 208 (2) of the Criminal Code had been closed on 9 October 2000 under Article 208 (1) part 2, because the guilt of the suspect had not been established. The obligation not to leave the place of residence had been lifted. The decision to close the criminal investigation could be appealed to a higher ranking prosecutor or to a court within five days.
The Government submit in their Memorandum that the criminal proceedings against both applicants were terminated on 20 January 2001. On 29 October 2003 that decision had been quashed by the Deputy Prosecutor of Chechnya and forwarded for additional investigation, which should take into account the applicants' explanations. No copies of such documents have been submitted by the Government.
6. Proceedings instituted by the applicants
The applicants' relatives applied to various official bodies concerning the seizure of property, the arrest and detention of the applicants as well as of the applicants' father. After the applicants' release, they also complained to various authorities about their ill-treatment in detention. In response, they received very little substantive information concerning the actions of the authorities upon their complaints. On several occasions, they received copies of letters by various authorities directing their complaints to the prosecutors of the Achkhoy-Martan district and of the Chechen Republic and to the district VOVD.
On 22 April 2000 the NGO Memorial wrote to the Special Representative of the Russian President in the Chechen Republic for rights and freedoms. In their letter they asked for clarification of the reasons for arrest of the applicants and their father and complained that the searches and seizures and arrests were unlawful.
On 18 May 2000 the Ministry of Interior replied to a member of the State Duma, who had inquired on behalf of the applicants, that a criminal case against the applicants had been opened by the Office of the District Prosecutor of Achkhoy-Martan under Articles 126 (2) and 208 (2) of the Criminal Code. On 21 April 2000 the case-file had been forwarded to the Chief Department of the Office of the General Prosecutor for the Northern Caucasus to be joined with other cases related to the military actions. Further information should be sought from the relevant prosecutors' office.
On 20 May 2000 the Office of the Prosecutor of the Chechen Republic informed the applicants' brothers, Rashid and Daud Chitayevy, that the criminal investigation against the applicants was being conducted by the Chief Department of the Office of the General Prosecutor for the Northern Caucasus, to whom they should apply with further inquiries. It further stated that the applicants' father, Salaudi Chitayev, had not been detained in relation to the criminal investigation.
On 22 May 2000 the applicants' father submitted a complaint to the head of the Achkhoy-Martan VOVD about the seizure of property and his detention between 14 and 29 April 2000. In reply, the deputy head of the VOVD informed the applicants' father, Salaudi Chitayev, that no items allegedly seized at their home were listed as such in the VOVD, and no criminal proceedings had been pending against himself or his family members at the VOVD. However, the Office of the Achkhoy-Martan District Prosecutor had opened criminal proceedings against his sons, and the search conducted at their family house was in accordance with the criminal procedural law and the Law on Militia, sections 2 and 18. The search and seizure had been documented by a report, the only copy of which was kept in the case-file. The seized items were also kept with the case-file. Further information could be obtained from the Office of the Prosecutor of the Chechen Republic, located in Gudermes.
On 4 July 2000 the applicants' brother, Daud Chitayev, addressed the Special Representative of the Russian President in the Chechen Republic for rights and freedoms and complained about the lawfulness of detention of the applicants, his father and of the searches and seizures in their house.
On 26 July 2000 the deputy head of the Achkhoy-Martan VOVD informed the applicants' father that the applicants had been detained on 17 April 2000 [rather than on 12 April] under Article 122 of the Criminal Procedural Code. There was no other information concerning detention of the applicants' family members, and there was no record of Salaudi Chitayev's detention at the VOVD.
On 28 July 2000 the same officer of the VOVD informed Salaudi Chitayev that the items seized in his house had been attached to the case-file of the criminal investigation, and that the decision upon those items could only be taken by the investigative authority or the competent court.
On 22 August 2000 the applicants' father addressed the Achkhoy-Martan District Prosecutor and the military commander of Achkhoy-Martan in relation to the reasons for his own arrest in April 2000.
On 1 September 2000 the applicants' father addressed the Prosecutor of the Chechen Republic in respect of the lawfulness of the searches and seizures in his house, his own detention and the detention of the applicants.
On 7 September 2000 the Office of the Prosecutor of the Chechen Republic replied to the applicants' father that the applicants had been detained in connection with the criminal charges brought against them under Articles 126 (2) and 208 (2) of the Criminal Code, i.e. kidnapping and participation in an unlawful armed group. Their further detention had been authorised by the Prosecutor of the Chechen Republic until 9 October 2000.
On 18 October 2000 the acting Prosecutor of the Chechen Republic informed the applicants' brother, Rashid Chitayev, that his complaint concerning the unlawfulness of the searches and seizures in their house and of the applicants' detention had been reviewed by that Office. The service of internal security of the Achkhoy-Martan VOVD was conducting a check (служебная проверка) of the seizure and destruction of “radio equipment and transmitting devices and personal property” of his brothers. The letter further stated that the applicants had been released from detention on 4 October 2000 on the undertaking not to leave their permanent residence.
On 1 June 2001 the applicants' brother, Rashid Chitayev, addressed the Achkhoy-Martan District Prosecutor for information concerning items seized in their family house in April 2000.
On 5 October 2001 the Chechnya Justice Initiative addressed the Prosecutor of the Chechen Republic with a complaint, giving a detailed description of the alleged procedural violations and severe ill-treatment of the applicants while they had been in detention in the VOVD and in the Chernokozovo SIZO. The letter referred to the medical documents in support of the ill-treatment complaints. A copy of the letter was forwarded to the General Prosecutor, who, on 25 October 2001 replied that the complaint had been forwarded to the Office of the Prosecutor of the Chechen Republic.
On 29 October 2001 the applicants' brother, Rashid Chitayev, requested the Achkhoy-Martan district VOVD to provide him with an update concerning the internal investigation concerning property seized in April 2000. On 3 January 2002 he again requested an update on the complaints related to the property and arrest and detention of his relatives. No reply was received to these requests.
On 22 November 2001 and on 24 January 2002 the SCJI again wrote to the Republican Prosecutor's Office, referring to their letter of 5 October 2001. On 29 January 2002 they requested the same information from the District Prosecutor of Achkhoy-Martan.
7. Questioning of the applicants
In January 2002 all male members of the Chitayev family received a summons to appear to the Achkhoy-Martan District Prosecutor's Office on 7 January 2002. The first applicant at that time was outside Chechnya, but the second applicant, the applicants' father Salaudi and their brother Daud attended the prosecutor's office. They were invited to talk to the investigator of the prosecutor's office one by one.
The second applicant submits that the District Prosecutor of Achkhoy-Martan and an investigator of the same Office proposed that he should write a statement denouncing all claims against the Achkhoy-Martan VOVD concerning the lawfulness and conditions of detention. In case of refusal, they threatened to re-open the criminal proceedings against both applicants. The second applicant was allowed to consult his relatives, whereupon he decided to sign the requested statement. On the same day, 7 January 2002, the investigator of the Achkhoy-Martan District Prosecutor's Office replied to the SCJI stating that, after having reviewed their complaints, a decision not to open criminal proceedings had been taken. No reasons were stated for the decision, but the SCJI was informed of the possibility to appeal.
On 14 March 2002 the SCJI appealed the decision of 7 January to the Prosecutor of the Chechen Republic. They referred to the pressure put on the second applicant to recall his complaints and requested the opening of criminal investigation into the allegations of ill-treatment of the applicants in the VOVD and the Chernokozovo SIZO.
On 18 March 2002 the acting District Prosecutor of Achkhoy-Martan informed the SCJI by letter that the Prosecutor's Office had conducted a check of the complaint concerning “illicit methods of investigation” in respect of the applicants. As a result of the check, a decision not to open criminal proceedings had been taken on the basis of Article 5 (2) of the Criminal Procedural Code, due to the absence of a corpus delicti in the actions of the servicemen of the VOVD. The letter further stated that the second applicant had been invited to the Prosecutor's Office where he acknowledged his detention at the VOVD and at the Chernokozovo SIZO, but denied that “illicit investigation methods” had been applied to him. The first applicant could not be questioned because he had left the Republic. No objective information proving the allegations of ill-treatment had been found during the verification. The letter finally alleged that the results of the verification had been previously sent to the Chechnya Justice initiative on 7 January 2002 by letter no. 105.
On 24 April 2002 the applicants' brother, Rashid Chitayev, addressed the Prosecutor of the Chechen Republic for information on the investigation opened in respect of his complaints about the searches and seizures in their house.
On 6 May 2002 [erroneously dated 2001] the Deputy Prosecutor of the Chechen Republic wrote a letter to the SCJI and informed them that the decision of the Achkhoy-Martan District Prosecutor's Office to refuse to open criminal proceedings in respect of the applicants' complaint concerning ill-treatment in detention between 12 April and 5 October 2000 was lawful and that the complaints had been found unsubstantiated.
The SCJI requested the Achkhoy-Martan District Prosecutor to submit a copy of the decision of 7 January 2002 by which the criminal proceedings have been denied. On 24 March 2003 that Office replied that according to the then enforced Code of Criminal Procedure the investigator was not obliged to forward a copy of such decision to the person who has applied for institution of proceedings. The reply further stated that the second applicant had been familiarized with the document in question.
The applicants further submitted that in March – April 2004 the investigators from the Achkhoy-Martan VOVD had on several occasions visited the Chitayevs' family house. They collected personal data and passport numbers of all the family members. They also questioned them about the whereabouts of the applicants, if they had travel passports and could travel abroad. In April 2004 an investigator allegedly explained to the applicants' father that due to their complaints he was obliged to place the second applicants' name on the federal list of wanted persons. He suggested to him to sign a paper which would rebut previous complaints concerning ill-treatment, and the applicants' father agreed, out of fear – similarly to the situation in January 2002.
The applicants submit that as a result of the pressure put on them by the local law-enforcement bodies in response to their complaints, and out of fear for their lives and security, both left Chechnya and do not want to make their whereabouts known to the authorities. One applicant is currently in Germany, the other lives in another region in Russia, away from his family.
B. Relevant Council of Europe reports
The Chernokozovo SIZO, where the applicants had been detained, received extensive attention from various human rights institutions, including the European Committee for the Prevention of Torture (CPT), for allegations of severe ill-treatment of detainees. On 4 March 2000 the Head of the CPT delegation Mr Hajek issued a statement to the Russian officials at the end of the visit of the CPT to the North Caucasian region of the Russian Federation. The statement said, inter alia, in relation to the visit to Chernokozovo:
The delegation is satisfied that, at present, persons detained in this establishment are not being physically ill-treated. Further, although conditions of detention in the SIZO leave much to be desired, the delegation has noted that genuine efforts have been made in recent times - and continue to be made - to improve those conditions.
However, the information gathered by the delegation strongly indicates that many persons detained at Chernokozovo were physically ill-treated in the establishment during the period December 1999 to early February 2000. In different locations, the delegation has interviewed individually and in private a considerable number of persons who were held at Chernokozovo during that period. A clear pattern of physical ill-treatment of prisoners by custodial staff emerged. The ill-treatment alleged consisted essentially of kicks, punches and truncheon blows to various parts of the body (excluding the face). The ill-treatment was said to have been inflicted principally in the central corridor of the detention facility, usually when prisoners were taken to an investigator's room for questioning or when they were returned to their cells after such questioning; apparently, prisoners were also on occasion physically ill-treated in the investigators' rooms. Investigators were said to have been fully aware of the ill treatment being inflicted, and some prisoners affirmed that it was inflicted at their instigation. In certain cases, the delegation has gathered medical evidence which is consistent with the allegations of ill-treatment made by the prisoners concerned.
It is also noteworthy that practically all the prisoners interviewed who had been held at the establishment in Chernokozovo during the period January to February 2000 stressed that there had been a distinct change for the better in early February, at the same time as a changeover of staff began to occur. The beatings stopped; further, other improvements had been made, in particular as regards food. Moreover, no allegations of physical ill-treatment were made by prisoners interviewed who had arrived in the establishment after the first week of February 2000.
On 10 July 2001 the CPT issued a public statement concerning the Chechen Republic, under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This step was prompted by the Russian authorities' failure to cooperate with the CPT in relation to two issues: i) the carrying out of a thorough and independent inquiry into the events in a detention facility at Chernokozovo during the period December 1999 to early February 2000; ii) action taken to uncover and prosecute cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the current conflict. The statement said, in particular:
...the information gathered by the CPT's delegation in the course of its February/March and April 2000 visits indicated that a considerable number of persons deprived of their liberty in the Chechen Republic since the outset of the conflict had been physically ill-treated by members of the Russian armed forces or law enforcement agencies. In the report on those two visits, the CPT recommended that the Russian authorities redouble their efforts to uncover and prosecute all cases of ill-treatment of persons deprived of their liberty in the Chechen Republic in the course of the conflict. The Committee made a number of remarks of a practical nature intended to clarify the precise form those efforts might take. More generally, the CPT stressed that it was essential for the Russian authorities to adopt a proactive approach in this area.
The response of the Russian authorities to this key recommendation was very unsatisfactory...
As was stressed in a letter sent to the Russian authorities on 10 May 2001, the CPT's concerns in this regard are all the greater given that in the course of the Committee's most recent visit to the Chechen Republic, in March 2001, numerous credible and consistent allegations were once again received of severe ill-treatment by Federal forces; in a number of cases, those allegations were supported by medical evidence. The CPT's delegation found a palpable climate of fear; many people who had been ill-treated and others who knew about such offences were reluctant to file complaints to the authorities. There was the fear of reprisals at local level and a general sentiment that, in any event, justice would not be done. It was emphasised to the Russian authorities that they must spare no effort to overcome this deeply disturbing state of affairs.
On 10 July 2003 the CPT issued a second public statement in relation to Chechnya. It was prompted by allegations of continued resort to torture and other forms of ill-treatment by members of the law enforcement agencies and federal forces operating in the Chechen Republic. It also referred to the action taken to bring to justice those responsible as slow and ultimately ineffective. In particular, the report stated:
In the course of the CPT's visits to the Chechen Republic in 2002 and, most recently, from 23 to 29 May 2003, a considerable number of persons interviewed independently at different places alleged that they had been severely ill-treated whilst detained by law enforcement agencies. The allegations were detailed and consistent, and concerned methods such as very severe beating, the infliction of electric shocks, and asphyxiation using a plastic bag or gas mask. In many cases, these allegations were supported by medical evidence. Some persons examined by the delegation's doctors displayed physical marks or conditions which were fully consistent with their allegations. Documentation containing medical evidence consistent with allegations of ill-treatment during periods of detention in law enforcement agencies was also gathered.
C. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure (CCP), as in force at the relevant time, read as follows:
1. Provisions relating to opening of criminal investigation
Article 108 provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens, public or private bodies, articles in the press or discovery by an investigating body, prosecutor or court of evidence that a crime had been committed.
Article 109 provided that the investigating body should take one of the following decisions within a maximum period of ten days after being notified of a crime: open or refuse to open a criminal investigation, or transmit the information to an appropriate body. The informants should be informed about any decision.
Article 113 provided that if the investigating body refused to open a criminal investigation, a reasoned decision should be provided. The informant should be made aware of the decision and could appeal to a higher-ranking prosecutor or to a court.
2. Provisions relating to arrest and detention
Article 11 (1) guaranteed the principle of personal inviolability and established that no one could be arrested otherwise than on the basis of a judicial decision or a prosecutor's order.
Pursuant to Articles 47 and 52 of the CCP, a suspect, from the moment of his arrest, had the right to be represented by a defence counsel, if necessary to be paid by the authorities.
Article 89 (1) authorised application of preventive measures when there were sufficient grounds to believe that the accused person could evade an inquiry, preliminary investigation or trial or obstruct the establishment of truth in a criminal case or engage in criminal activity, as well as in order to secure the execution of a sentence. The investigator, prosecutor or the court could apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.
Article 90 permitted, in exceptional instances, a measure of restraint to be imposed on a suspect who has not been charged. In such a case, charges should have brought against the suspect within ten days after imposition of the measure. If no charges were brought within the period specified, the measure of restraint should be revoked.
Article 91 required the following circumstances to be taken into account in imposing measure of restraint: the gravity of the charges and the suspect's or defendant's personality, occupation, age, health, family status and other circumstances.
Article 92 authorised investigator, procurator, or a court to issue a ruling or finding to impose measure of restraint, which should specify the offence of which the person was suspected or accused and the grounds for imposing the measure of restraint. The person concerned should have been informed of the ruling or finding and at the same time provided with explanations concerning appeal procedure. A copy of the ruling or finding should be immediately served on the person on whom a measure of restraint has been imposed.
Article 96 (Arrest) set out grounds for detention, and authorised public prosecutors, from the level of a district or town prosecutor to the Prosecutor General, to authorise detention on remand.
Article 97 (Terms of detention on remand) provided that detention on remand during the investigation of criminal cases could not last for more than two months. This term could be extended by the relevant prosecutor to three months, and further detention could have been authorised by a regional prosecutor (or a prosecutor of equal rank) up to a maximum of six months.
An appeal against an order extending periods of detention lied with the court for the area where the prisoner was held (Articles 220-1 and 220-2 of the CCP).
3. Provisions relating to search and seizure
Articles 83 – 86 of the CPP concerned rules applicable to the material evidence. Material evidence should be described in records, if possible, photographed, and should be stored together with the criminal investigation file. After the termination of proceedings a decision should be taken concerning the material evidence collected.
Article 87 prescribed that all investigative measure, including examination, search and seizure, should be documented by a formal record.
Chapter 14 regulated questions related to searches, seizures and arrest of property. Article 168 provided that a search should be authorised by a prosecutor upon a reasoned investigator's order. In urgent cases a search could take place without authorisation, but the prosecutor should then be informed within 24 hours of the search. Article 171 restricted seizures to items and documents that could be relevant to the criminal investigation.
Chapter 15 related to carrying out of examinations. Article 178 permitted examination of the site prior to opening of the criminal investigation file in urgent circumstances. The investigation would then have to be opened immediately after the examination. Article 182 demanded that a record should be made for the examination, which should describe the investigator's actions and all items seized during the examination.
1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment and torture. They refer, in particular, to the methods of ill-treatment applied to them in the Achkhoy-Martan VOVD and in the Chernokozovo SIZO, to the conditions of detention in both places, to the ban on exercising religious rites and to the threat of execution made on 28 April 2000. The applicants also complain under Article 3 that the authorities failed to investigate effectively their allegations of ill-treatment.
2. The applicants complain that their arrest and detention breached Article 5 § 1 Convention, as well as national law. They complain that they were not informed of the reasons for their arrest and detention under Article 5 § 2. They complain under Article 5 § 3 that their detention was not authorised by a court or a prosecutor and that their right to be released within a reasonable time pending trial had been violated. They also complain under Article 5 § 4 that they were denied an opportunity to challenge the lawfulness of their detention because they had no access to lawyers and legal information and virtually no contacts with the outside world. They were under a constant threat of severe ill-treatment by the guards in case they complained. They also submit that since no formal charges were brought against them, they could not properly challenge the reasons of their detention. Finally, they complain under Article 5 § 5 that their right to compensation for detention in violation of the provisions of Article 5 was violated, since no inquiry had been conducted by the national authorities into their allegations of unlawfulness of detention.
3. The applicants complain under Article 6 § 1 of the Convention about the length of criminal proceedings against them. They also submit that the presumption of innocence, guaranteed under Article 6 § 2, was violated by the actions of the investigators who tried to extract a confession from them through ill-treatment. They further submit that, contrary to the requirements of Article 6 § 3, they were not informed promptly and in detail of the nature and cause of the accusations against them, that they had neither adequate time and facilities for the preparation of their defence, nor access to legal assistance.
4. The applicants complain under Article 8 of the Convention that their rights to private and family life were violated in that they were denied any contacts with their families while in detention. The first applicant in particular complained that he could not obtain news of his severely ill son Alu. The applicants further complain that their right to respect for the home was violated by the searches and seizures conducted at their family house; the searches were not in accordance with the law, they pursued no legal aim and were not necessary in a democratic society.
5. The applicants complain under Article 1 of Protocol No. 1 that their property rights were violated by the seizure of their property on 12 April 2000, which they allege was not in accordance with the national legislation, was not based on a court decision and for which they had received no compensation.
6. The applicants complain under Article 13 of the Convention that that they had no effective remedies against any of the above violations.
1. The applicants complain under Article 3 that they were subjected to torture and inhuman and degrading treatment while in detention. They also submit that the State has failed its positive obligation under Article 3 to conduct a proper investigation of the credible allegations of torture. They complain that their detention was in violation of the provisions of Article 5. They further submit that the search and seizure of a number of items at their home was in breach of the domestic legislation and violated their rights for respect of home and for peaceful enjoyment of possessions, guaranteed by Article 8 and Article 1 of Protocol No. 1. They also submit that they had no effective remedies in respect of the above violations, contrary to Article 13. These Articles provide, as far as relevant:
“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.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”
“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.”
1. Exhaustion of domestic remedies
a. The Government
The Government request the Court to declare the case inadmissible as the applicants have failed to exhaust the domestic remedies. The Government outline several possible available legal remedies.
They submit that the applicants could complain about the conditions of their detention to the head of the detention facility, in accordance with Article 17 (1.7) of the Federal Law On Pre-Trial Detention. They could also appeal the legality and conditions of detention to the prosecutor or to the court. The Government stressed that the relevant legislation established an effective system of protection for detainees who wished to complain: letters addressed to prosecutors are submitted in sealed envelopes and are not subject to censorship, complaints to other authorities can not be delayed by the administration of the detention facility, and the officials are liable for interference with such correspondence. Furthermore, the applicants could complain orally to the higher ranking staff of the detention facility or to the responsible prosecutor during a regular visit, or submit a complaint through their lawyer.
The applicants were furnished with legal information and counselling during their detention in the SIZO Chernokozovo, but they did not submit any letters or complaints while in detention.
Finally, it was open to the applicants to pursue civil proceedings once they were released, either in Chechnya or in the neighbouring regions, which they also failed to do.
b. The applicants
The applicants disagree with the Government's objection.
First, they argue that there is an administrative practice of non-compliance with the requirement to investigate effectively abuses committed by Russian servicemen and members of the police in Chechnya. They refer to complaints submitted to the Court by other persons claiming to be victims of such abuses, who also complain about lack of effective investigation. The applicants cite human rights groups, NGO and media reports on violations of civilians' rights committed by federal forces. They also submit that Russian official bodies receive numerous such complaints, both in Chechnya and outside, but this does not lead to identification and punishment of the responsible. The applicants refer to the documents of the Council of Europe and human rights groups to support their conclusion about existence of an administrative practice.
Second, the applicants describe the situation of 2000 in Chechnya as that of a significant civil strife. No courts were operating there at that time, and the legal system was not functioning properly.
Thirdly, they invoke the existence of special circumstances as a result of brutal ill-treatment in detention. Their serious condition is confirmed by the medical reports, and they had to undergo treatment after release. They explain that they felt vulnerable, powerless and apprehensive of the State representatives. They assert that despite their very serious allegations, completed with details and medical documents, the prosecutor's office failed to act with sufficient expedience and diligence in response to their complaints, and that after they were compelled under duress to denounce their statements on 7 January 2002, they lost faith in the effectiveness of the internal remedies.
They maintain that in any event they exhausted domestic remedies, because upon release they applied to the prosecutor with a request to conduct an investigation into the allegations of ill-treatment, unlawful detention and seizure of property. Criminal investigation should, in their opinion, be regarded as a proper remedy in view of the nature of their complaints and the relevant practice of the Court. Despite their efforts, no investigation took place. Their complaints were rejected without proper examination, and the authorities refused to provide them with a copy of the document by which the investigation was denied, or to familiarise them with the documents in the file. They were thus deprived of any meaningful possibility to appeal.
They rely on the Court judgment in the case of Akdivar and others v. Turkey and argue that the Russian Federation has failed to satisfy the requirement that the remedy was “an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaint and offered reasonable prospects of success” (see the Akdivar and Others v. Turkey judgment of 30 August 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 68).
c. The Court's assessment
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 Court therefore decides to join this objection to the merits.
2. As to the merits of the applicants' complaints
a. The Government
The Government denies that the applicants' conditions of detention in Chernokozovo can not be qualified as inhuman or degrading treatment within the meaning of Article 3. They also deny that the applicants were subjected to unlawful violence while in detention in SIZO. The applicants were examined by a doctor upon admission and regularly received medical assistance while in detention. As to the Article 5 complaint, they were detained upon a lawful and grounded prosecutor's order and their detention was lawful throughout the period under review. They were timely informed about the reasons for their detention and could have appealed their detention to a court, in accordance with the then enforced legislation. The applicants had access to legal assistance and to legal counselling while in detention in the SIZO. Their allegations were dismissed by the competent national authorities as unfounded after a proper verification.
The Government further submit that the search in the applicants' house was based on the relevant provisions of the criminal procedural legislation, which permitted a search in exceptional circumstances without a prosecutors' sanction. In the Government's opinion, there are no grounds to conclude that the applicants' right to peaceful enjoyment of possession under Article 1 of Protocol No. 1 had been violated.
b. The applicants
The applicants maintain their complaints. They refer to their detailed submissions about the conditions of detention and methods of ill-treatment and to the medical documents produced immediately after their release which corroborate with their statements. They allege that the documents submitted by the Government cannot be regarded as conclusive evidence of the contrary, because they were issued in 2003 and do not contain detailed information of a medical nature. Even these documents acknowledge that the second applicant had a head trauma, which they fail to explain. They also refer to NGOs' and media reports, Council of Europe documents and other complaints brought to the European Court that denounce wide-spread ill-treatment of detainees in Chechnya, and particularly at the Chernokozovo detention centre.
The applicants stress that they were in detention between 12 April and 5 October 2000, while the Government's observations only deal with the period of their detention at the Chernokozovo SIZO (between 26 April and 25 September 2000, according to the certificate issued by the SIZO). The criminal investigation against them was opened only on 17 April 2000. The prosecutor's order authorising their detention was issued on 19 April, and was given to them on 20 April 2000. The applicants refer to numerous violations of the domestic legal rules concerning arrest and detention on remand. They submit that they had no contacts with their families, no access to legal information or information concerning the charges brought against them, were not allowed to pray and that their only meeting with the lawyer, held in the presence of the wardens and during which they were only allowed to speak in Russian about their condition, could not correct that.
In respect of their complaints concerning the search and seizure of certain items at their house, the applicants underline that the Government failed to refer to any legal basis for these actions. The searches of 15 January and of 12 April 2000 were, in their opinion, not based on relevant legal provisions and unlawful in the meaning of the Convention provisions. Domestic legalisation does not provide for such acts as “examination” or “checking” of the premises. They were held before the criminal case was opened, i.e. before 17 April 2000. They refer to violations of the domestic procedure and to the fact that none of the items seized was relevant to the accusations later brought against them. They did not receive any of the property back after the criminal proceedings were terminated.
They also submit that they had no recourse to effective remedies against the said violations, contrary to Article 13.
c. The Court's assessment
The Court considers, in the light of the parties' submissions, that the complaints under Articles 3, 5, 8 and 13 of the Convention and Article 1 of Protocol No. 1 raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
2. The applicants complain under Article 6 about various aspects of the criminal proceedings brought against them. Article 6 provides:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
The applicants complain about excessive length of criminal proceedings. They submit that the presumption of innocence was violated by the actions of the investigators who tried to extract a confession from them through ill-treatment. They further submit that they were not informed promptly and in detail of the nature and cause of the accusations against them, that they had neither adequate time and facilities for the preparation of their defence, nor access to legal assistance.
As far as the applicants complain about the length of the criminal proceedings against them, those lasted between April 2000 and October 2000 (or January 2001, according to the Government). In any event, this period of time is not such as to raise any issues under Article 6 § 1 of the Convention.
As concerns the rest of the complaints under Article 6, the applicants do not dispute that the criminal proceedings against them have been terminated by the investigative authorities. The applicants do not suggest that they continued to be affected by these proceedings after those were finished. There is no evidence to conclude that they have not been relieved of any effects to their disadvantage (see, mutatis mutandis, Correa de Matos v. Portugal, (dec.), 15 November 2001, ECHR 2001-XII).
The Court considers that there is nothing in the applicants' submissions to support the suggestion that they continued to be affected by the criminal charges brought against them in 2000 after the proceedings had been terminated, separately from the issues raised by the applicants in their complaints under other Articles of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Joins to the merits the Government's objection concerning non-exhaustion of domestic remedies;
Declares admissible, without prejudging the merits, the applicants' complaints under Articles 3, 5, 8 and 13 of the Convention and Article 1 of Protocol No. 1;
Declares inadmissible the remainder of the application.
Santiago Quesada Christos Rozakis
Deputy Registrar President
CHITAYEV and CHITAYEV v. RUSSIA DECISION
CHITAYEV and CHITAYEV v. RUSSIA DECISION