FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74237/01 
by Asmart Magomedovna BAYSAYEVA 
against Russia

The European Court of Human Rights (First Section), sitting on 1 December 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 20 September 2001,

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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Asmart Magomedovna Baysayeva, is a Russian national, who was born in 1958 and lives in the village of Pobedinskoye, Grozny district, Chechnya. She is 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, as submitted by the parties, may be summarised as follows.

1. “Disappearance” of the applicant’s husband

The applicant lives in the village of Pobedinskoye in the Grozny district. The applicant’s husband, Shakhid Raduyevich Baysayev, born in 1939, worked in the village of Podgornoye (also referred sometimes as Sobachevki) as a mechanic at a municipal transport enterprise. The applicant was married to her husband for 25 years and had five children.

On 2 March 2000 the applicant’s husband left to work at about 6.30 a.m. The road to the village of Podgornoye went through a Russian military checkpoint, at that time known as checkpoint no. 53, near which a military unit had been stationed.

At about 10 a.m. the same day the applicant heard the sounds of shooting and explosions from the road. She went out and saw a convoy of military cars under attack on the road. She later learned that the convoy of the OMON (police special forces) from the Sergiyev Posad, Moscow Region, had been under attack. The fighting lasted till about 1 p.m. It was later reported that the troops had been mistakenly ambushed by other detachments of the Russian forces, in particular, by the OMON forces from Podolsk and a military unit from the Sverdlovsk Region. As a result of the fighting, more than 20 servicemen were killed and more than 30 wounded. The fighting was followed the same day by a “sweeping” operation (zachistka) in the village of Podgornoye, from where the attack came.

During the fighting and later that day until night the checkpoint no. 53 remained closed and the road to Podgornoye was blocked. The applicant remained about 500 metres away from the checkpoint until about 8 p.m. that day but was not able to pass to Podgornoye. Her husband did not come home that night. The applicant has not seen her husband ever since.

Next day at about 5 a.m. she came to the checkpoint and saw the aftermath of the fighting – burned cars of the convoy, the soldiers’ bodies and blood stains. On that day and in the days immediately after the applicant questioned numerous witnesses trying to find out about her husband. She did not keep records of these conversations, as at that time she could not have imagined that it would be useful.

From the witnesses’ statements the applicant learned that the “sweeping” operation in Podgornoye resulted in a large number of persons – over 50 – being detained by the Russian military. All of them were brought to the Staropromyslovskiy Temporary District Department of Interior (VOVD). One of the witnesses told the applicant that he had seen her husband, Shakhid Baysayev, being taken away by the Russian servicemen in the village. The witness described the applicant’s husband as being in pain – apparently he had been beaten.

On 4 March 2000 the applicant met with several men who had been detained in Podgornoye on 2 March and later released. They identified the applicant’s husband by photograph and confirmed that he had been detained by the soldiers at the checkpoint no. 53 and then taken away. They did not see him at the VOVD where they had been brought.

Other witnesses told the applicant that her husband had finished work in Podgornoye and was returning home, but the soldiers did not let him through because of the fighting. He returned to Podgornoye and was detained during the “sweeping” operation. Apparently, the applicant’s husband witnessed the killing by the soldiers of two brothers O. and tried to intervene on their behalf. The soldiers beat him up, put a sack over his head and drove him away. In September 2000 the local administration of the Podgornoye village issued a certificate to the applicant to confirm that two brothers O. had been killed on 2 March 2000 during a “sweeping” operation in the village. The applicant submits that she later found the O.s’ house in Podgornoye locked and abandoned and was told by the local residents that their father had been killed by an unknown gunman about a month before the killing of the brothers, and their mother after the deaths of her family members had experienced a severe mental disorder. The applicant did not find any of the O.s’ relatives.

Yet other witnesses told the applicant that they had seen her husband, covered with blood, at the checkpoint no. 53 during the fighting.

The applicant attempted to find out at the checkpoint if her husband had been detained there, but the soldiers told her that they had been replaced after the fighting of 2 March 2000 and were not aware of any detainees.

The Government submit in their Memorandum of 28 April 2004 that it has been established that on 2 March 2000 in the village of Podgornoye a fight took place which involved the servicemen of the federal forces which resulted in the deaths of the servicemen of the OMON detachments from Sergiyev Posad, Moscow Region. Immediately after the fighting there was a special operation in Podgornoye, which was aimed at identifying members of the illegal armed groups who had participated in the ambush. The detainees were brought to the Staropromyslovskiy VOVD, but Shakhid Baysayev was not listed among them. Nor was his name among the persons who had been detained by other detachments of the interior in the Northern Caucasus.

2. Search for Shakhid Baysayev and investigation

Starting on 2 March 2000, the applicant on numerous occasions applied to the prosecutors of various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya, to the Special Representative of the Russian President in the Chechen Republic for rights and freedoms. The applicant submitted several copies of her letters addressed to the authorities stating the facts of her husband’s disappearance and asking for assistance and details on the investigation. She also personally visited the Grozny Town Prosecutor’s Office (where she often had to walk – about 35 km one way), the Staropromyslovskiy VOVD, the main Russian military base in Khankala.

The applicant received very little substantive information from the official bodies about the investigation into her husband’s disappearance. On several occasions the applicant was sent copies of letters by which her requests had been forwarded to the Grozny Town Prosecutor’s Office.

On 3 March 2000 the applicant went to the Staropromyslovskiy VOVD and talked to its head, Mr. D. He called one of the officers who confirmed that he had seen the man on the photograph – the applicant’s husband - but said that he had never been brought to the VOVD. He told the applicant that her husband would be delivered to the VOVD on 7 March at 11 am and released. On 7 March 2000 the applicant returned to the VOVD and waited till 5 p.m., but received no news of her husband. She was then told that officer D. had left Chechnya after completion of his mission.

On 4 March 2000 the applicant addressed herself to the investigator of the Grozny Town Prosecutor’s Office, Mr. M., who had apparently been investigating the killing of the brothers O. asking him to help her find her husband.

On 8 March 2000 the applicant addressed the head of the Staropromyslovskiy VOVD and the head of the Staropromyslovskiy District Administration asking to help her to find her husband.

On 16 March the applicant attempted to get to the military prosecutor’s office in Khankala, but was not allowed to enter the compound.

On 30 March 2000 the applicant wrote to the Grozny Town Prosecutor, to the military commandant of Chechnya, to the Military Republican Prosecutor, to the Grozny Town Mayor, asking to take measures to establish her husband’s whereabouts.

On 31 May 2000 the Chechnya Republican Prosecutor’s Office wrote to the head of the Department of the Ministry of the Interior in Chechnya, asking them to organise a search for 30 missing persons upon requests of their relatives, among whom there was the applicant. The letter asked the Department to inform the claimants of the results of the investigation. A copy of that letter had been forwarded to the applicant.

On 1 June 2000 the applicant came to the Grozny Town Prosecutor’s office. The investigator talked to her and asked her to come back in two weeks. When the applicant returned, the investigator told her that her husband had been detained by the servicemen of the Podolsk OMON on 2 March 2000 and brought to their base near Podgornoye between 12 and 2 pm that day. He also told the applicant that there existed a videotape proving this information. The Grozny Town Prosecutor’s Office had opened a criminal case under Article 126 part one of the Criminal Code (kidnapping). The applicant submits that the investigator who gave her this information no longer worked there in September, and that after he had left the case did not advance.

On 28 June 2000 the applicant addressed the Special Representative of the Russian President in the Chechen Republic for rights and freedoms and the Chechnya Republican Prosecutor, asking to take measures to find out her husband’s whereabouts and to inform her about any results.

Since the applicant did not receive any news of her husband and knowing the circumstances of his detention, she concluded that he was probably no longer alive. So she also started to search for his body in places where the persons who had been killed during the conflict were buried.

Before 5 May 2000 the applicant on several occasions, together with the servicemen of the Staropromyslovskiy ROVD and the Ministry for Emergency Situations (Emercom), travelled to a location near the checkpoint no. 53, from where they transported over three dozen bodies.

The applicant also accompanied the VOVD servicemen to another location, where dead bodies, apparently dumped by the federal servicemen, had been brought. She also went to other villages, including Komsomolskoye and Znamenskoye. The applicant submits that she has seen about 400 dead bodies, but has not found her husband.

3. The videotape and photographs of Shakhid Baysayev

On an unspecified date in the beginning of August 2000, at about 5 p.m., the applicant was walking home. On the road not far from the checkpoint no. 53 a white “Zhiguli” car stopped near her. A man in the car, wearing military uniform and a balaclava mask, told her in Russian without accent to sit on her knees with her back to the car. When the applicant obeyed, he told her that if she wanted to know who was behind her husband’s disappearance, she should bring him five thousand roubles the next day.

The applicant collected the money. On the next day she saw the same car at the same place. The applicant submits that this time a different man was inside. He showed her on a small TV set inside the car extracts from a videotape, where the applicant recognized her husband. In the footage Shakhid Baysayev was shown lying on the ground, a soldier kicked him, ordered to stand up, he was escorted by the military. The soldiers were talking to him in a harsh and aggressive tone, threatening and using obscene language. The screen was dated by the date of his detention – 02.03.2000. After the applicant gave the money, the unknown person gave her photographs made from the video. He also gave her a drawn map of four places of burials, including that of her husband’s. The applicant asked for the videotape, and was told that she would have to pay 1,000 US dollars for it. She was also told that the tape was known to the prosecutor’s office under a certain registration number - no. 49030.

The next day the applicant travelled to the Grozny Town Prosecutor’s Office and talked to an investigator. She gave him the map and told him about the videotape where her husband had been depicted after his “disappearance”. The investigator confirmed that he had known about the tape and that, probably, a copy of the tape was in the Chechen Republican Prosecutor’s Office.

One week later the applicant managed to buy the videotape. She had paid 1,000 US dollars for it. The meeting was organised in the same way – a white “Zhiguli” car stopped by her side on the road and the applicant talked to a man inside. The footage (a copy and a transcript of which had been submitted to the Court) is about three minutes long. It shows a group of several dozen soldiers wearing camouflage and with guns and ammunition walking across a field. At some point they cross a small railroad and a low barrier. Then the camera turns towards the direction where they are walking and shows the only civilian, whom the applicant recognized as her husband. He is at first lying on the ground, then a soldier kicks him and orders him to stand up. The soldiers address him with threatening remarks, using obscene language. He is wearing a dark brown sheepskin coat and a yellow fur hat, his clothes are dirty. He is escorted by the soldiers towards partially destroyed buildings, where more soldiers are gathering, all in full gear. The applicant’s husband appears for about one and a half minutes, then the camera turns to film the soldiers (who seem to be returning from a mission), at least six bodies in camouflage on stretches, some are covered with blankets, others are exposed. There also appears military equipment, some of it burnt, and a bus.

4. Further investigation

On 23 August 2000 the applicant, together with an investigator from the Grozny Town Prosecutor’s service, travelled to the location indicated on the scheme. The place was within the military compound near the checkpoint no. 53, and the military did not let them into the compound.

On 7 September 2000 the Grozny Town Prosecutor’s Office informed the applicant that the persons responsible for the kidnapping of her husband could not be established, but that the investigative measures were taking place.

On 10 September 2000 the Chechnya Republican Prosecutor’s Office informed the applicant that a preliminary investigation was being conducted by the Grozny Town Prosecutor’s Office. Her oral statement about the alleged burial place would be verified.

On 19 September 2000 the Grozny Town Prosecutor’s Office informed the applicant that on 14 September 2000 the criminal investigation into kidnapping of her husband by unknown persons in camouflage had been adjourned due to failure to find culprits.

On 20 September 2000 the Pobedinskoye village administration issued a certificate to the applicant by which it confirmed that she had applied to the administration on 3 March 2000 on account of her husband’s detention during a “sweeping” operation on 2 March 2000 following the ambush of the “Moscow OMON”. The note confirmed that the “sweeping” in Sobachevki took place on 2 March 2000 between 12.00 and 14.30.

On an unspecified date at the end of September 2000 the applicant, together with investigator M. from the Grozny Town Prosecutor’s Office and police escort, again went to the presumed burial site. They were allowed into the military compound, but the investigator refused to start the search, apparently because the location was inexact and the territory too big.

On 9 October 2000 the General Prosecutor’s Office informed the applicant that her request concerning the search for her husband had been forwarded to the Chechnya Prosecutor’s Office.

On 29 October 2000 and on 3 December 2000 the Chechnya Prosecutor’s Office forwarded the applicant’s requests about her husband’s unlawful detention to the Grozny Town Prosecutor’s Office.

On 23 November 2000 the Ministry of the Interior forwarded her request to the Department of the Interior in Chechnya.

On 9 December 2000 the military prosecutor of the military unit no. 20102 forwarded the applicant’s request about the whereabouts of her husband to the head of the Grozny district VOVD, because the issue was beyond the competence of the military prosecutor.

In March 2001 the NGO Human Rights Watch issued a report “The “Dirty War” in Chechnya: Forced Disappearances, Torture and Summary Executions” which lists Shakhid Baysayev as one of the victims of “forced disappearances” after detention by the Russian servicemen.

On 23 April 2001 the Grozny Town Prosecutor’s Office issued to the applicant a progress report in the criminal investigation no. 12048. The note stated that on 10 May 2000 that Office had opened criminal investigation under Article 126 part 1 of the Penal Code. The investigation was based upon the fact of detention of Shamid [should be Shakhid] Baysayev by unknown persons in camouflage on 2 March 2000, at about 12 a.m. near the village of Podgornoye. The investigative measures failed to establish the whereabouts of Baysayev. The investigation was adjourned and later resumed on unspecified dates.

In April 2001 the Joint Working Group on Chechnya, comprised of the members of Parliamentary Assembly of the Council of Europe and of the State Duma reported that the criminal investigation in the case concerning the disappearance of Sh. Baysayev was continuing, but no progress was reported.

On 28 June 2001 the Grozny District Court granted the applicant’s request to declare her husband a missing person.

On 17 August 2001 the Human Rights Watch forwarded a copy of the videotape purchased by the applicant to the General Prosecutor’s Office.

In autumn 2001 the applicant again addressed the Grozny Town Prosecutor’s Office. She requested the prosecutors to resume investigation in the case concerning her husband’s disappearance, to identify persons in the videotape and to obtain their testimonies related to her husband’s detention and disappearance.

On 29 November 2001 the applicant learned in the Grozny Town Prosecutor’s Office that the criminal case concerning her husband’s disappearance had again been adjourned.

On 7 December 2001 the applicant again applied to the Grozny Town Prosecutor’s Office, requesting resumption of the investigation and inspection of the alleged burial site.

On 8 December 2001 the applicant, together with investigator Leushev from the Grozny Town Prosecutor’s Office, travelled to the location of the checkpoint no. 53. There they found the building to which the soldiers had led Shakhid Baysayev on the videotape. At the building they discovered several pieces of clothing and a human bone. At one location near a tree the investigators suggested that the sunken earth indicated a burial place. They started excavations and soon found a piece of brown cloth, resembling a piece of rotten sheepskin coat. The investigator and the criminalist stopped the excavations at that point, collected the items they had found and agreed with the military that they should come next day with a video camera. The applicant then returned home with a regular bus service.

On 9 December 2001 the investigators from the Grozny Town Prosecutor’s Office came to the applicant’s house and asked her to come with them to the Office. The applicant agreed, understanding that she would have to identify the body of her husband. However, on the way to the Office she was told that the day before the car with investigator Leushev and the criminalist had been blown up before it had reached the Prosecutor’s Office. Both were killed in the explosion. This incident was reported in the Russian press.

Once at the Grozny Town Prosecutor’s Office, the applicant was brought into a room with two officers of the prosecutor’s service, who only gave her their first names – Mikhail and Zukhari. They suggested that the applicant had been involved in the explosion of the prosecutors’ car. They told her not to insist on further investigations and to stop searching for her husband’s body, under threat for her own security and the security of her children. The applicant, who perceived the threat as a real one, refrained from contacts with the law-enforcement bodies for some time.

The Government submitted in their Memorandum that the Grozny Town Prosecutor’s Office opened criminal investigation file no 17113 into the terrorist attack of 8 December 2001. On 8 February 2002 the investigation was adjourned for failure to identify the culprits.

On 4 April 2003 the applicant wrote a letter to the Grozny Town Prosecutor’s Office asking to update her on the progress of the investigation into her husband’s disappearance, to grant her and her family members victim status and to tell her which investigator was in charge of the case. There was no reply to this letter.

On 17 April 2003 the SRJI, acting on the applicant’s behalf, requested the Grozny Town Prosecutor’s Office to grant the applicant victim status and to update her about the proceedings.

On 24 July 2003 the SRJI wrote to the General Prosecutor’s Office complaining about the Grozny Town Prosecutor’s Office failure to reply. On the same date the SRJI repeated their letter of 17 April 2003 to the Grozny Town Prosecutor’s Office.

On 15 August 2003 the Grozny Town Prosecutor’s Office wrote to the SRJI that the criminal investigation no. 12048 had established that in the evening of 2 March 2000 Shakhid Baysayev was caught in the shooting near the village of Podgornoye, was wounded and then was driven away by unknown persons. The investigation was adjourned for failure to identify the culprits. To the letter was attached the decision to grant victim status to the applicant, dated 15 January 2002 and countersigned by her.

It appears that the investigation into Shakhid Baysayev’s abduction was adjourned and reopened five or six times. The investigation was carried out by the Grozny Town, and then the Staropromyslovskiy District Prosecutor’s Office. The investigation did not identify the persons or the detachment responsible for the abduction and no one was charged with the crimes (see Part B below for a description of the documents in the investigation file). The Government submit in their Memorandum of 28 April 2004 that the investigation continues.

The applicant submits that in 2003 she has on several occasions met with an employee of the Grozny Town Prosecutor’s Office in the premises of the Zavodskoy District Court who publicly called her a “murderer” and accused her of being involved in the death of the two officers of the prosecutor’s service in December 2001. This has caused her severe emotional distress.

The applicant also submits that on 22 March 2004 a prosecutor of the Staropromyslovskiy District Prosecutor’s Office visited her at her home and asked her to sign a statement that she has not been subjected to any threats after her application to the European Court of Human Rights. The applicant felt that she was put under pressure and conceded to write a statement of the following contents: “When I filed the application to the Court in Strasbourg nobody threatened me”.

The applicant submits that she is suffering from a heart disease since the first military campaign of 1994 – 1996, when her daughter and daughter-in-law were killed and her son wounded by the explosion of a shell. At that time the applicant had the first fit of cardiac neurosis. On 2 November 1999 the applicant was wounded in the leg. Since the “disappearance” of her husband her health has worsened significantly, and she now requires regular treatment and injections. On 13 February 2004 the applicant had a stroke. She suffers from restlessness, anxiety and insomnia. The applicant does not submit any medical documents.

5. Proceedings aimed at recovery of Shakhid Baysayev’s wage arrears

The applicant sought to recover her husband’s wage arrears for 1998-1999 from the Starogroznenskiy transport department where he had worked.

On 26 April 2001 the Grozny Town Prosecutor’s Office intervened on the applicant’s behalf with the municipal company in Podgornoye where the applicant’s missing husband used to work and requested that his wage arrears be paid to the applicant.

In 2003 the applicant applied to the Staropromyslovskiy, and then to the Zavodskoy District Court seeking to recover the arrears. She also claimed non-pecuniary damages because her husband had disappeared on his way from work. In June 2003 the temporary Department of the oil processing complex for Chechnya issued a certificate to confirm that the wage arrears of Shakhid Baysayev at the Starogroznenskiy transport department constituted roubles (RUR) 26,478 (about 763 euros).

It appears that on 26 September 2003 the Zavodskoy District Court issued a writ by which it ordered the company OAO Grozneft to pay the arrears in the amount of RUR 26,478 to the applicant.

On 2 October 2003 the director of the OAO Grozneft informed the court that their company had been created in November 2000 and was not liable for the debts of the Starogroznenskiy transport department, which had been a part of the liquidated organisation Grozneft. All claims should be brought to the authority responsible for the liquidation.

On 6 October 2003 the Zavodskoy District Court of Grozny quashed its own writ of 26 September 2003 and explained that the applicant should seek the payment of arrears through civil proceedings.

B. Documents submitted by the parties

1.  Documents from the investigation file

The Government submitted to the Court a part of the investigation file in criminal case no. 12048 which comprises three volumes. They state that only these documents were submitted by the General Prosecutor’s Office. These documents may be summarised as follows:

a)  Decision to open a criminal investigation

On 10 May 2000 a prosecutor of the Grozny Town Prosecutor’s Office opened criminal investigation into abduction of Shakhid Baysayev by unidentified persons wearing camouflage on 2 March 2000 in Podgornoye. The decision referred to Article 126 part 1 of the Criminal Code (kidnapping).

b) Statements by the applicant

The file contains the applicant’s letter of 30 March 2000 to the Grozny Town Prosecutor’s Office stating the known details of her husband’s disappearance and asking for assistance in finding him.

On 29 June 2000 the applicant was questioned as a witness. She repeated the circumstances of her husband’s detention by the military servicemen of which she was aware and confirmed that she had had no news of him.

On 8 September 2000 the applicant was questioned once more. She gave detailed submissions about her husband’s detention, based on the witnesses’ statements. According to her, her husband was put into an APC and taken to the checkpoint no. 53, manned by OMON. The applicant testified about her conversation with Mr. D. at the Staropromyslovskiy VOVD. The applicant also stated that she had attempted to get to the checkpoint with another policeman from the VOVD, Major Ch., but that they had been fired upon when they tried to approach. She told the investigators about the videotape depicting her husband’s detention and the plan of the alleged place of burial, as well as the circumstances under which she had obtained them. She submitted a request to investigate the site. On the same day the applicant was granted victim status in the proceedings.

On 21 March 2004 the applicant was again questioned about her husband’s disappearance, about the videotape and the plan of his alleged burial, about the attempts in 2000 - 2001to find the site as indicated on the plan. On the same day the applicant was again granted victim status.

c) Documents related to the search for Shakhid Baysayev

On 5 June 2000 the investigators requested the Ministry of the Interior to check if Shakhid Baysayev had been detained in their facilities. In reply, four district departments of the interior in Grozny, the Operational Brigade of the Ministry of the Interior for the Northern Caucasus (based in Northern Ossetia) and the Federal Security Service for Chechnya responded that he had never been detained by them and that there was no information about him in their databases.

On 17 June 2000 the Staropromyslovskiy VOVD responded to the investigators and stated that they could not find witnesses of the events related to Shakhid Baysayev’s abduction and that the latter was reported to be a man of good behaviour.

It appears that the investigators tried to verify the information about the alleged witnessing by the applicant’s husband of the killing of two brothers O. on 2 March 2000. On 22 March 2004 the Staropromyslovskiy District Prosecutor’s Office stated that there was no criminal case pending with that office concerning the murder of “brothers A. [the names were similar to the ones indicated by the applicant except for the first letter]”, or the discovery in March 2000 of two unidentified male bodies.

d) Examination of the site

On 9 November 2000 the investigator of the Grozny Town Prosecutor’s Office, in the presence of the applicant and assisted by a search dog team, examined the site at the location of the checkpoint no. 53. First the sappers examined the area in case it had been mined. The report concluded that there were no burial places in the area.

On 7 December 2001 the applicant wrote to the Grozny Town Prosecutor’s Office asking to permit excavations at the place indicated on the plan, allegedly containing her husband’s body.

On 19 March 2004 the investigators again examined the site in Podgornoye, in the presence of the applicant. They excavated the spot indicated on the plan, where they found a waste dump. The report was accompanied by a plan of the site and photographs.

e) Examination of the videotape

On 18 March 2003 the prosecutor of the Staropromyslovskiy District Prosecutor’s Office ordered the investigation to collect the videotape stored at the Chechnya Republican Prosecutor’s Office.

On 22 March 2003 the videotape was reviewed in the presence of the applicant who recognised the person depicted in it as her husband.

f) Statements by the local residents

In February - March 2004 the investigators questioned about a dozen residents of the villages of Podgornoye, where the applicant’s husband had been detained and Pobedinskoye, where he had lived. They stated that on 2 March 2000 there was fighting at around mid-day, followed by a “sweeping” operation in Podgornoye. Most of the villagers questioned did not know or see Shakhid Baysayev, but they stated that several men from Podgornoye had been detained and later released on that day. They were also aware of the applicant’s search for him, because she came to the village, asked the residents about him and placed search notices with photographs of her husband. Two residents of Podgornoye testified having seen Shakhid Baysayev on 2 March 2000 in the Avtobusnaya Street during the sweeping operation, and one colleague of Baysayev testified that he had left the office together with the rest of the workers after the shooting broke out.

The Government submit in their Memorandum that over 50 witnesses had been questioned during the investigation. 13 statements were submitted to the Court.

g) Informing the applicant

On 9 June 2000 the Grozny Town Prosecutor’s Office informed the applicant that a criminal case had been opened by that office into her husband’s abduction.

On 7 September 2000 the Grozny Town Prosecutor’s Office wrote to the applicant and stated that the criminal investigation into her husband’s abduction was pending, but no information about his whereabouts has been obtained.

On 10 September 2000 the Chechnya Prosecutor’s Office wrote a similar letter to the applicant.

On 19 September 2000 the Grozny Town Prosecutor’s Office informed the applicant about the adjournment of the investigation of the criminal case no. 12048.

On 4 April 2003 the applicant wrote to the Grozny Town Prosecutor’s Office asking to inform her of the developments in the case.

h) The prosecutors’ orders

At different stages of the proceedings several orders were produced by the supervising prosecutors enumerating the steps to be taken by the investigators. On 9 November 2000 the prosecutor ordered the examination of the site indicated by the applicant with search dogs, to obtain and review the videotape mentioned by the applicant, to question the officers in the Sverdlovsk Region who had served at the Staropromyslovskiy VOVD, to questions servicemen of the Podolsk OMON who had manned the 53-rd roadblock in Podgornoye at the relevant time, to review the custody records of the Staropromyslovskiy VOVD for 2-3 March 2000. On 3 December 2001 the prosecutor again ordered a full investigation of all circumstances of Baysayev’s disappearance. On 15 December 2001 a prosecutor of the Grozny Town Prosecutor’s Office ordered the criminal case file no. 12048 to be reconstructed, following its destruction in a terrorist act of 8 December 2001.

On 22 February 2004 the prosecutor of the Staropromyslovskiy District of Grozny ordered the investigation to examine the site where Baysayev had been allegedly buried, to obtain and review the videotape, to identify and question witnesses among local residents who lived near the site of the fighting and who had been detained on 2 March 2000, to review the videotape together with the senior officers of the OMON detachments in order to identify the servicemen filmed in it, to identify the military units involved in the detention, etc.

On the same day the investigation was entrusted to an investigative group composed of four investigators of the Staropromyslovskiy District Prosecutor’s Office.

The investigation of the case was adjourned and reopened at least five times. On 17 March 2004 the Deputy Prosecutor of Chechnya ordered the investigation to be extended until 12 May 2004 in order to take the investigative measures which could help, inter alia, to identify the military units responsible for Baysayev’s detention and to identify and question the servicemen who appear in the videotape.

2. Information from the regional courts

The Government submitted letters from the Supreme Court of Ingushetia, the Krasnodar Regional Court, the Rostov Regional Court and the Stavropol Regional Court, dated March 2004. The letters stated that there were no criminal or civil cases in the respective regions in which the applicant was involved or which concerned the kidnapping of her husband. The Supreme Court of Chechnya wrote on 19 March 2004 that the applicant did not apply to a court in Chechnya with any complaints, but that criminal case no. 12048 was pending with the Staropromyslovskiy District Prosecutor’s Office in Grozny, and that the term of investigation was prolonged until 12 May 2004.

3. Materials related to the ambush of 2 March 2000

The applicant submitted a number of press reports concerning the trial of two senior officers of the Ministry of the Interior for criminal negligence that entailed grave consequences - 22 deaths and 33 wounded among the policemen of the OMON detachment from Sergiyev Posad, Moscow Region. According to these reports, it has been established that the fighting on 2 March 2000 in Podgornoye occurred when the convoy of the OMON going into Grozny on mission had been attacked by the officers of the Staropromyslovskiy VOVD, staffed by the policemen from the Sverdlovsk Region, and the OMON detachments from Podolsk, Moscow Region, stationed at the checkpoint in Podgornoye. The skirmish was declared to be a result of a provocation by the fighters who had managed to feed false information to the troops stationed in Podgornoye about the expected passage of fighters in disguise of federal servicemen.

COMPLAINTS

1.  The applicant submits that Article 2 was violated in respect of her husband, Shakhid Baysayev. She submits that the circumstances of his detention and the long period during which his whereabouts cannot be located indicate that he was killed by the federal forces. She further submits that there was a violation of the procedural aspect of Article 2 in respect of carrying out an efficient investigation into the circumstances of his “disappearance”.

2.  The applicant complains that the known circumstances of his detention strongly indicate that Shakhid Baysayev was subjected to ill-treatment in violation of Article 3 of the Convention. She further submits that the authorities failed to investigate effectively the allegation of ill-treatment, and therefore failed in their positive obligations under Article 3.

3.  The applicant complains under Article 3 of the Convention that as a result of the anguish and emotional distress she suffered in connection with the detention and disappearance of her husband Shakhid Baysayev, she was subjected to treatment falling within the scope of Article 3 of the Convention.

4.  The applicant complains that the provisions of Article 5 as a whole, related to the lawfulness of detention and guarantees against arbitrary detention, were violated in respect of her husband.

5.  The applicant submits that she is deprived of access to a court, contrary to the provisions of Article 6, because a civil claim for damages would entirely depend on the outcome of the criminal investigation into the disappearance. In the absence of any findings she can not effectively apply to a court.

6.  The applicant complains that she has no effective remedies in respect of the alleged violations of Articles 2, 3 and 5 of the Convention, as guaranteed by Article 13.

THE LAW

The applicant complains about the disappearance, ill-treatment and killing of Shakhid Baysayev and about the absence of an effective investigation, in violation of Articles 2 and 3 of the Convention. She submits that her own suffering in the circumstances has reached the threshold of Article 3. She complains that Shakhid Baysayev’s detention was in violation of Article 5. Under Article 6 the applicant complains that she has no access to a court. She also submits that she has no effective remedies in respect of the above violations, contrary to Article 13.

1. Exhaustion of domestic remedies

a. The Government

The Government request the Court to declare the case inadmissible as the applicant has failed to exhaust the domestic remedies. The Government submit that the investigation into the circumstances of Shakhid Baysayev’s detention is continuing and the review of the complaint by the European Court would be premature. The Government also refer to the Constitution and other legal acts which permit an appeal to the courts in respect of the actions of the administrative bodies which infringe upon the citizens’ rights. Referring to the responses from the regional courts mentioned above, argue that the applicant has failed to avail herself of this remedy.

b. The applicant

The applicant disagrees with the Government’s objection.

First, she refers to the special circumstances that existed in Chechnya in 2000 when the functioning of law-enforcement bodies was seriously disrupted.

Second, she invokes the existence of an administrative practice of non-compliance with the requirement to investigate effectively abuses committed by Russian servicemen and members of the police in Chechnya. She refers to complaints submitted to the Court by other persons claiming to be victims of such abuses, documents of the Council of Europe, NGO and media reports. She argues that this administrative practice makes the potentially effective domestic remedies inadequate, ineffective and illusory.

Finally, she submits that in any event she complied with the requirement to exhaust by applying to the prosecutor’s office and requesting a criminal investigation. Moreover, as it is clear from the facts of the case, the applicant actively participated in the investigation and submitted to the prosecutors all information in her possession which could lead to the solving of the crime. Despite her efforts, no proper investigation took place. In her view, the Government failed to demonstrate how an application to a court or to a public prosecutor could be effective in view of the investigators’ failure to act, especially given that the supervising prosecutors have in any event on several occasions criticised the conduct of the investigation and gave instructions that were obviously not complied with.

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 applicant’s complaints

a. The Government

The Government submit that there is no conclusive evidence to support the applicant’s allegations that the authorities are responsible for the detention of Shakhid Baysayev, for his death, or that he is indeed dead. The Government submit that the applicant’s and some other witnesses’ allegations that her husband had been detained and executed by servicemen are based on the statements of unknown persons and therefore cannot serve as evidence within the meaning of Articles 74 and 75 of the Criminal Procedural Code.

As to the efficiency of the investigation, they refer to the difficult situation in Chechnya in general, the fact that two members of the prosecutor’s office died during a terrorist attack when investigating the case and the fact that the criminal case was destroyed and then had to be reconstructed. The investigation is being carried out in accordance with the domestic legislation, the applicant has been granted victim status and her submissions have been carefully verified. The investigation takes steps to identify and question the servicemen depicted in the videotape provided by the applicant. Despite the attempts of the domestic investigation, the identity of the persons who had detained Shakhid Baysayev remains unknown, the whereabouts of the applicant’s husband or his body has not been established.

Under Articles 6 and Article 13, the applicant has unrestricted access to the domestic proceedings, namely to the courts which are competent to review her complaints in accordance with Article 46 of the Constitution and other legal acts.

b. The applicant

The applicant maintains her complaints.

Under Article 2 she argues that there can be no reasonable doubt that the Russian servicemen detained Shakhid Baysayev on 2 March 2000 and then deprived him of his life. In support of this allegation she refers to the evidence that was not challenged by the Government, in particular the videotape which shows the applicant’s husband escorted by the military servicemen dated 2 March 2000, the fact that a sweeping operation took place on that day in Podgornoye and that a number of persons had been detained, the statements by the eye-witnesses about Baysayev’s detention, including the statement of a VOVD official made in the applicant’s presence to officer D. The applicant believes that it is established with a great degree of certainty that there occurred an intentional deprivation of the life of Baysayev as he was detained in a life-threatening situation more than four years ago and since then “disappeared”. The applicant stresses that the Government failed to provide another version of events and that it is known from the public reports of the trial of senior OMON officers that the skirmish of 2 March 2000 involved two groups of the federal forces, therefore there were obviously no other armed men in camouflage involved in the sweeping operation immediately after it.

The applicant alleges that the investigation into the circumstances of Baysayev’s detention and death fell short of the standards of the European Convention and of the national legislation. She argues that it started late and that a number of important steps were taken with an unjustified delay or only after the communication of the complaint to the respondent Government and in the manner which undermined their effectiveness, such as the transcript of the videotape. The applicant remarks that she was granted victim status four times, while no other member of Shakhid Baysayev’s family was granted victim status despite their requests. A number of important investigative actions were never taken, most notably the identification and questioning of the persons who appear in the videotape, of the servicemen who had manned the checkpoint no. 53 and who had conducted the sweeping operation on 2 March 2000. The investigation failed to consider the evidence indicating that Baysayev’s detention and killing had been carried out by the federal servicemen. She points to the passage of considerable time – more than four years – without the investigation producing any known results. The investigation was adjourned and reopened on several occasions. The supervising prosecutor criticised its conduct and gave instructions which were not complied with, therefore supporting, in the applicant’s view, her allegation of its ineffectiveness. The authorities systematically failed to inform the applicant of the proceedings and she had no information about important procedural steps. Finally, the applicant contends that the Government’s failure to submit a substantial part of the investigation file without a proper explanation strengthens the suspicion of the ineffectiveness of the investigation.

The applicant complains about a violation of both material and procedural aspects of Article 3 of the Convention in relation to her husband. The applicant submits that the videotape shows her husband being kicked and hit by the soldiers, who use obscene and threatening language towards him. She submits that persons detained in Chechnya are regularly subjected to treatment in violation of Article 3. The authorities failed to conduct a proper investigation of these allegations.

Referring to the established Court’s practice, the applicant claims that she herself is a victim of treatment falling within the scope of Article 3 as a result of anguish and emotional distress she has suffered in connection with the disappearance of her husband.

Under Article 5 the applicant submits that Shakhid Baysayev has been subjected to unacknowledged detention, in violation of the principles defined by Article 5.

Under Article 6 the applicant complains that she has no access to civil proceedings in the absence of any meaningful conclusions from the criminal investigation.

She also submits that she 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 2, 3, 5, 6 and 13 of the Convention 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.

For these reasons, the Court unanimously

Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Registrar President

74237/01- Baysayeva v. Russia communicated case


74237/01- Baysayeva v. Russia communicated case