Last Updated on March 1, 2022 by LawEuro
The applications concern the applicants’ alleged ill-treatment by State officials and unrecorded detention between 2000 and 2008 in Chechnya and Ingushetia, and the alleged ineffective investigations in that regard.
THIRD SECTION
CASE OF SALA KHAMIDOV AND OTHERS v. RUSSIA
(Applications nos. 32267/08 and 3 others – see appended list)
JUDGMENT
STRASBOURG
1 March 2022
This judgment is final but it may be subject to editorial revision.
In the case of Sala Khamidov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Peeter Roosma,
Mikhail Lobov, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the applications (nos. 32267/08 and 3 others) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirty Russian nationals (“the applicants”) on the various dates indicated in Appendices I and II;
the decision to give notice of the applications to the Russian Government (“the Government”);
the parties’ observations;
the decision to reject the Government’s objection to examination of application Tsechoyev v. Russia (no. 52270/10) by a Committee;
Having deliberated in private on 1 February 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applications concern the applicants’ alleged ill-treatment by State officials and unrecorded detention between 2000 and 2008 in Chechnya and Ingushetia, and the alleged ineffective investigations in that regard.
THE FACTS
2. The applicants are Russian nationals. Their personal details are indicated in Appendices I and II.
3. The Government were represented by Mr G. Matyushkin and Mr M. Galperin, the then Representatives of the Russian Federation to the European Court of Human Rights, and lately by Mr M. Vinogradov, their successor in that office.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Sala Khamidov v. Russia (application no. 32267/08)
A. Alleged ill-treatment
5. According to the applicant, on 25 May 2000 at around 10 p.m. Russian military officers opened random fire in the village of Znamenskoye, in the Nadterechniy District of Chechnya. The officers attacked the applicant near his sister’s house, beat him with gun butts and put him in a vehicle. The applicant’s nephew, his wife and neighbours witnessed the applicant’s abduction.
6. According to the applicant, the officers took him to the outskirts of the village, beat him, pulled out his teeth denture and took his money. When the applicant fainted, the officers undressed him and threw him out of the car.
7. On 26 May 2000 at around 6.30 a.m. the applicant was found by a villager. The applicant was immediately taken to a hospital.
8. According to the extract of the applicant’s medical card of 26 May 2000, he had a closed craniocerebral injury, brain concussion of second degree, chest contusion, and a closed two-sided fracture of his jaw.
9. On 1 June 2000 a military commandant of the Nadterechniy District requested the head of the military hospital in Mozdok in the North Ossetia to admit the applicant for a qualified medical treatment.
B. Criminal investigation
10. On 26 May 2000 an investigator of the Prosecution Office in the Nadterechniy District opened a criminal case into hooliganism. According to the decision, a group of unidentified armed men in military uniform opened random fire in Znamenskoye and then beat up civilians, including the applicant. The applicant was granted victim status.
11. On 30 June 2000 the criminal case was transferred to a military prosecutor. On 21 July 2000 the case was sent back to the prosecution office for the failure to identify military officers.
12. Between July 2000 and 28 March 2006 the criminal case was suspended for the failure to identify perpetrators at least three times.
13. On 17 March 2008 the latest known decision to suspend the criminal case of 28 March 2006 was overruled.
14. On 19 March 2008 the Nadterechniy District Court rejected the applicant’s complaint against the suspension on the grounds that the decision had already been overruled.
15. On 18 April 2008 the investigator of the Naurskiy inter-district investigation department suspended the case for the failure to identify perpetrators. On 22 July 2008 the decision was overruled as incomplete.
II. Aspiyev and Others v. Russia (application no. 64941/09)
16. The applicants are twenty-six Russian nationals. Their personal details are indicated in Appendix II.
A. The events of 27 and 28 July 2007
17. On 27 July 2007 unidentified persons shelled the building of the Federal Security Service Department for Ingushetia (“the Ingushetia FSB”) in the city of Magas, killing a military officer.
18. On 28 July 2007 at around 4 a.m. a group of military officers arrived in Ali-Yurt on armoured personnel carriers (“APCs”) and two Gazel minibus vehicles without number plates.
19. The officers broke into the applicants’ houses, pulling them out and beating them with gun butts, demanding to give information about the attack of 27 July 2007. For the description of the applicants’ alleged ill-treatment, see Appendix II.
20. According to the applicants, the military beat around thirty residents, including women, minors and elderly. In total around twenty residents were taken to Nazran and Moscow hospitals.
21. According to the investigator’s report of 28 July 2007 (“рапорт об обнаружении признаков преступления”), the applicants and a number of other residents had been admitted to hospitals with injuries of various severity and degree. Several applicants underwent forensic medical examination between 28 July and 2 August 2007. For the description of the applicants’ injuries, see Appendix II.
22. Applicants Mr Khuseyn Nalgiyev, Mr Magomet Nalgiyev, Mr Umalat Nalgiyev, Ms Aset Nalgiyeva and Mr Yakhya Yevloyev did not undergo any medical examination. According to the applicants, they did not do so because they were told that complaining against State officers would be futile.
23. No medical documents were provided in respect of Mr Ibragim Yevloyev and Mr Zalimkhan Yevloyev. According to Mr Zalimkhan Yevloyev, following the events he was on sick leave for two weeks, but he did not have any documents. According to the report of the medical examination of Mr Vakha Dobriyev, he did not sustain any injuries.
B. Criminal investigation
24. On 30 July 2007 the applicants complained to the Prosecution Office of the Nazranovskiy District.
25. On 3 September 2007 a senior investigator opened a criminal case into abuse of power with the use of violence.
26. On unspecified dates, the applicants were granted victim status, except for Ms Tanzila Esmurziyeva and Mr Issa Batsayev.
27. On 18 March 2008 the investigator transferred the criminal case to a military prosecutor of the North Caucasus Military Circuit. According to the decision, following the attack on the FSB building, the head of the Ingushetia FSB decided to carry out a counterterrorist operation in Ali-Yurt.
28. The decision cited witness statements of local police officers, according to which on 28 July 2008 at 4 a.m. they had received a call from an on-duty officer that unidentified armed law-enforcement officers in masks had been beating Ali‑Yurt residents. When police officers arrived, armed officers in masks and uniforms without insignia insulted them and did not let them enter the village, explaining that a special operation in Ali-Yurt carried out by FSB officers was ongoing. At 4.30 a.m. a convoy of military vehicles and APCs without number plates entered Ali-Yurt. At 6 a.m. the convoy left the village and at 7 a.m. police officers entered it.
29. The Minister of the Interior of Ingushetia and heads of the various departments of the Ministry of the Interior gave similar statements.
30. The investigator concluded that on 28 July 2007 between 4 and 6 a.m. the Ingushetia FSB officers had carried out a special operation in Ali-Yurt, during which they had inflicted bodily injuries to the residents of the village.
31. On 9 September 2008 a senior military investigator transferred the case to the head of the investigation department for a decision on jurisdiction. According to its extracts, the special operation was carried out by the officers of military unit no. 3718, special police forces (OMON), the Temporary Operational Troops of the Ministry of the Interior in Ingushetia (“Временная оперативная группировка МВД РФ в РИ”), the United Group Alignment in the Northern Caucasus (“Объединенная группировка войск”) and the Ingushetia FSB.
32. On an unspecified date the applicants challenged the decision of 9 September 2008 before the Pyatigorsk Garrison Military Court.
33. On 25 June 2009 the Pyatigorsk Garrison Military Court discontinued the proceedings for the lack of jurisdiction.
34. On 7 August 2009 the applicants challenged the court decision.
35. On 22 October 2009 the North Caucasus Circuit Military Court (“the Circuit Court”) dismissed the applicants’ appeal, finding that there was no evidence of the military officers’ involvement in the events. It concluded that officers of the Temporary Operational Group of the Ingushetia Ministry of the Interior and Inter-Municipal department of the Ingushetia Ministry of the Interior (“Межмуниципальный отдел МВД России по РИ”) had carried out the operation, and not the military. The investigation was therefore to be carried out by civil investigators.
C. Suspension of the criminal case
36. On 6 December 2008 the investigator of the Nazranovskiy inter‑district investigation department suspended the case for the failure to identify perpetrators.
37. In August 2009 the applicants, including Ms Tanzila Esmurziyeva and Mr Issa Batsayev, complained against the suspension before the court.
38. On 26 August 2009 the Nazran District Court declared the decision on suspension of the criminal case unlawful, finding that there was “sufficient information about the operation conducted in Ali-Yurt”, but the investigators had failed to identify perpetrators, and carry out other investigative measures.
39. On 25 October and 27 November 2009 the investigator again suspended the criminal case, noting that “it was not possible solve the crime”.
D. Other relevant information
40. Applicant Mr Magomet Tsuroyev died on 6 December 2018. His wife, Ms Kazban Tsuroyeva, expressed her wish to continue with the application before the Court.
41. Applicant Mr Ramazan Nalgiyev died on an unspecified date. On 11 May 2021 his son, Mr Adam Nalgiyev, expressed his wish to continue the application.
42. On 22 November 2021 the applicants’ representative informed the Court that Mr Adam Nalgiyev had decided not to pursue the application before the Court.
III. Aushevy v. Russia (application no. 44279/10)
43. The applicants are Mr Magomed Osmanovich Aushev (Mr M.O. Aushev) and Mr Magomed Maksharipovich Aushev (Mr M.M. Aushev). The applicants’ personal details are indicated in Appendix I.
A. Mr M.O. Aushev’s alleged ill-treatment
1. The events of 17 June 2007
44. On 17 June 2007 at about 5 a.m. Ingushetia FSB officers apprehended Mr M.O. Aushev in his house in the village of Surkhakhi and took him to the FSB office in Vladikavkaz. According to the applicant, officers subjected him to electric shocks, hanged him by his arms and hit his feet with truncheons. The officers then took him to a forest, forced him into a pit and threw soil on him. They put a bulletproof jacket on him and fired two shots in him. When the applicant agreed to cooperate with the FSB, he was released.
2. Inquiry into the alleged ill-treatment
45. On 18 June 2007 Mr M.O. Aushev complained about his ill-treatment to a prosecutor.
46. On 22 June 2007 a medical expert examined the applicant and recorded an abrasion on his forehead and bruises on his nose, his shoulder and knees.
47. On 14 August 2007 and 30 January 2008 investigators refused to open a criminal case, relying on the statements of unnamed FSB officers, who had denied the use of force and submitted that they had taken the applicant to the FSB office for an interview and then released him.
48. On 16 June 2008 the refusal of 30 January 2008 was overruled, and the case was transferred to the military investigation committee. On 11 February 2009 a military investigator refused to open a criminal case.
49. On 8 June 2009 the Vladikavkaz Military Garrison Court dismissed the applicant’s appeal against the refusal of 11 February 2009, finding that there was no evidence of the applicant’s ill-treatment.
50. On 27 August 2009 the Circuit Court quashed the decision of 8 June 2009, finding the inquiry incomplete.
51. On 7 and 16 October 2009 the refusals of 11 February 2009 and 14 August 2007, respectively, were quashed as incomplete.
52. On 16 October 2009 and 13 June 2011 the military investigator refused to open a criminal case, relying on the statements of unnamed FSB officers.
B. The applicants’ alleged ill-treatment
1. The events of 18 September 2007
53. On 18 September 2007 a group of armed men in camouflage uniforms stopped both applicants at the “Chernorechye” checkpoint near Grozny. They took them to Ingushetia, punching and hitting them with gun butts in a car. They reminded Mr M.O. Aushev that he had agreed to cooperate with the FSB. The officers took them to an undisclosed location, where they subjected Mr M.O. Aushev to electric shocks.
54. The applicants were held in a basement of a building for two days without food or water. The men regularly beat them.
55. On the night of 20 September 2007 the men took the applicants to the Shatoyskiy police station in Chechnya, where they were allowed to call their relatives and then released.
2. Criminal investigation
56. On 20 September 2007 the applicants lodged a complaint with the Shatoyskiy police station about their detention and ill-treatment.
57. On 21 September 2007 the applicants underwent medical forensic examinations. Mr M.O. Aushev had abrasions on his right leg and chest, bruises on his left eye, left leg, chest and back. Mr M.M. Aushev had abrasions and bruises on his chest and in his lumbar area.
58. On 8 October 2007 the investigator opened a criminal case into abduction and the applicants were granted victim status.
59. On 8 December 2007 the criminal investigation was suspended due to the failure to identify perpetrators.
60. On 10 December 2012 the Ministry of the Interior of Chechnya informed the investigator that between 18 and 20 September 2007 the applicants had been held in the basement of the Department of the Interior of the Urus-Martan District.
61. On 24 March 2008 the decision of 8 December 2007 was overruled.
62. Between 24 April 2008 and 12 August 2011 the investigation was suspended at least six times.
IV. Tsechoyev v. Russia (application no. 52270/10)
A. Background information
63. In March 2004 the applicant’s brother, Mr Tamerlan Tsechoyev, disappeared following his arrest by Ingushetia FSB officers (see Ozdoyev and Others v. Russia [Committee], nos. 9782/08 and 9 others, 27 August 2019).
64. At the time of the events, the applicant was an employee of non-profit human rights organisation. On an unspecified date website “Ingushetia.org” published names of the FSB officers who had allegedly abducted Ingushetia residents, including the applicant’s brother.
B. Alleged ill-treatment
65. On 25 July 2008 at about 6 a.m. a group of fifty armed men on APCs and Gazel minibuses surrounded the applicant’s house. According to the applicant, the men were officers of the Ingushetia FSB. The officers, armed with submachine guns and equipped with radio, were wearing camouflage uniforms, helmets and shields.
66. The applicant voluntarily went out of his house. The officers put him on the ground and hit him with a gun butt. The officers searched his house for fifteen minutes and then took him in the direction of Magas.
67. They took the applicant to an undisclosed location. They demanded him to confess to having disclosed the FSB officers’ names. The applicant denied. The officers then put a plastic bag over his head, punched and kicked him, interrogating the applicant about his work. The officers threatened him with rape by a shovel stick.
68. At some point, the officers asked the applicant to sign a document that he had no complaints against the officers. They released him at the outskirts of Magas, reminding him not to complain.
69. The applicant was admitted to a hospital in Nazran, where he stayed until 23 August 2008.
C. Criminal investigation
70. On 25 July 2008 the applicant’s wife complained about his abduction to the prosecutor’s office of the Sunzhenskiy District of Ingushetia.
71. On 29 July 2008 an investigator opened a criminal case into abuse of power with the use of violence and granted the applicant victim status.
72. In August 2008 the applicant underwent a medical forensic examination. The applicant had numerous hematomas, bruises and abrasions on his face, neck, shoulders, chest, hands, and thighs. He was diagnosed with a closed craniocerebral injury, brain contusion of first degree, distortion of the cervical spine, closed fracture of his left leg.
73. On 29 November 2008 and 4 January 2009 the criminal case was suspended for the failure to identify perpetrators.
74. On 16 January 2009 the investigator transferred the case to the military investigation department, finding that the FSB officers had held the applicant in the building of the Ingushetia FSB and beat him. The investigator relied on the applicant’s medical documents and witness statements of the applicant’s wife and their neighbours.
75. On 13 March 2009 the Deputy Head of the Military Investigation Department refused to open a criminal case, relying on the statements of the various officers of the Ingushetia FSB structures. They all denied that a special operation had been carried out in respect of the applicant.
D. Judicial review by the military courts
76. On 25 October 2009 the applicant challenged the decision of 13 March 2009 before the Nalchik Garrison Military Court.
77. On 4 December 2009 the Military Court found his complaint unsubstantiated, mainly referring to the statements of the FSB officers.
78. On 4 March 2010 the Circuit Court dismissed the applicant’s appeal, finding that the involvement of FSB officers had not been proven and that the criminal case had been transferred to the civil investigation department.
79. The outcome of the investigation by the civil investigation department is unclear.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
80. For the relevant provisions of domestic law on the prohibition of torture and other forms of ill-treatment and the procedure for examining a criminal complaint, see Ryabtsev v. Russia (no. 13642/06, §§ 48‑52, 14 November 2013), and Lyapin v. Russia (no. 46956/09, §§ 96-102, 24 July 2014).
THE LAW
I. JOINDER OF THE APPLICATIONS
81. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. PRELIMINARY OBJECTIONS
82. In the application of Aspiyev and Others (no. 64941/09), the Government disputed the standing of Ms Kazban Tsuroyeva, the wife of late Mr Magomet Tsuroyev, and Mr Adam Nalgiyev, the son of late Mr Ramazan Nalgiyev (see paragraphs 40 and 41 above), arguing that the applicants’ complaints concerned non-transferable rights, and thus invited the Court to strike their application out.
83. Concerning the standing of Mr Adam Nalgiyev, the Court notes that he expressed his wish not to pursue the application with the Court (see paragraph 42 above). In the light of the foregoing, in accordance with Article 37 § 1 (c) of the Convention, the Court considers that it is no longer justified to continue the examination of Mr Ramazan Nalgiyev’s complaint.
84. As to the standing of Ms Kazban Tsuroyeva, the Court reiterates that in applications concerning Article 3 of the Convention there exists a strong presumption of a legitimate or sufficient interest of an applicant’s next of kin in continuing the case (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 176, 27 August 2019, with further references).
85. Having regard to the subject matter of the application and all the information in its possession, the Court considers that Ms Kazban Tsuroyeva has a legitimate interest in pursuing the application and that she has the requisite locus standi under Article 34 of the Convention. It therefore dismisses the Government’s preliminary objection.
III. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION
86. The applicants complained that they had been ill-treated by military and FSB officers and that no effective investigation into their complaints had been carried out, and that there had been no effective remedies available in respect of their complaints, as provided in Articles 3 and 13 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment …”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”
A. Admissibility
1. Sala Khamidov v. Russia (no. 32267/08)
87. The Government submitted that the applicant had failed to comply with the six-month time-limit, because he had been inactive for a year and a half before he had challenged the decision to suspend the investigation of 28 March 2006. They also stated that the applicant had failed to pursue civil proceedings to claim damages and thus failed to exhaust domestic remedies.
88. The Court observes that the applicant lodged his application with the Court on 29 May 2008. Contrary to the Government’s view, it does not consider the suspension decision of 28 March 2006 final in the meaning of Article 35 § 1 of the Convention. That decision, as well as subsequent similar decision of 18 April 2008, have been overruled (see paragraph 15 above). The Court considers that in the present case the applicant complied with the requirements of Article 35 § 1 of the Convention.
89. As to the civil remedy invoked by the Government, the Court reiterates that it would be excessive to require from the applicant to pursue a civil-law remedy after a criminal one had failed (see Magnitskiy and Others, cited above, § 254).
90. The Court therefore dismisses the Government’s admissibility objections.
2. Aspiyev and Others v. Russia (no. 64941/09)
(a) Compliance with the six-month rule and exhaustion of domestic remedies
91. The Government stated that applicants Mr Issa Batsayev and Ms Tanzila Esmurziyeva had not exhausted domestic remedies because they had not been accorded victim status in domestic investigation. They further stated that the application was lodged out of time because it had taken the applicants about a year to challenge the suspension decision of 6 December 2008. Lastly, they stated that the applicants had not challenged the suspension decisions of 25 October and 27 November 2009.
92. The Court notes that the applicants, including Mr Issa Batsayev and Ms Tanzila Esmurziyeva, challenged the latest suspension decision (see paragraph 37 above). The domestic court, despite the lack of their formal victim status, after having examined the substance of the applicants’ complaint, quashed the investigator’s decision (see Markaryan v. Russia, no. 12102/05, § 45, 4 April 2013).
93. The Court further notes that following the suspension decision of 6 December 2008 there were at least two more similar decisions in the criminal case (see paragraphs 39 above). The decision of 6 December 2008 was therefore not final within the meaning of Article 35 of the Convention, from which the six-month period should be counted. The applicants indeed did not challenge the subsequent suspension decisions of 25 October and 27 November 2009. However, in view of these previous decisions to suspend and reopen the proceedings, the Court is not convinced that another appeal to a court would have been effective (see Vanfuli v. Russia, no. 24885/05, §§ 72-75, 3 November 2011).
94. The Government’s objections should therefore be dismissed.
(b) Lack of “arguable claim”
95. The Government submitted that applicants Mr Khuseyn Nalgiyev, Mr Magomet Nalgiyev, Mr Umalat Nalgiyev, Ms Aset Nalgiyeva, Mr Yakhya Yevloyev, Mr Ibragim Yevloyev, Mr Zalimkhan Yevloyev and Mr Vakha Dobriyev did not have an “arguable claim”. The applicants submitted that they had been given victim status in domestic investigation.
96. The Court notes that indeed no medical documents, or any other proof of the alleged sustained injuries, were provided in respect of the applicants mentioned by the Government, except for Mr Vakha Dobriyev, who did not have any injuries following the events (see paragraphs 22 and 23 above).
97. However, the Court notes that these applicants were nevertheless granted victim status in the domestic proceedings despite the lack of documentary evidence of their injuries. At no point the domestic authorities questioned their status or the fact that they had been ill-treated during the operation (see paragraph 28 above). The applicants provided a detailed account of the events and, in particular, of their ill-treatment by State officers. Given that the overall context of the case, concordant and detailed statements by the residents and the fact that these applicants had been granted victim status in the criminal proceedings, it cannot be said that the applicant failed to make an “arguable claim” of their ill-treatment. The Government’s objection must therefore be dismissed.
98. The Court concludes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
3. Conclusion
99. The Court notes that the remaining applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
100. The applicants maintained their complaints. The Government submitted that there had been no violations of Articles 3 and 13 of the Convention, referring to the conclusions of the inquiries conducted by the domestic authorities.
1. Alleged ill-treatment
101. The Court observes that there is sufficient evidence indicating the State officers’ involvement in the apprehension of applicants Mr Khamidov (no. 32267/08), Mr M.O. Aushev and Mr M.M. Aushev (no. 44279/10), and Mr Tsechoyev (no. 52270/10) (see paragraphs 5, 47 and 74 above), and in the special operation carried out in the village of Ali‑Yurt in the application Aspiyev and Others (no. 64941/09) (see paragraph 28 above).
102. The Court notes that the applicants sustained injuries of varying degrees of severity, as recorded by medical experts (see paragraphs 8, 21, 46, 57 and 72 above). In application no. 64941/09 applicants Mr Khuseyn Nalgiyev, Mr Magomet Nalgiyev, Mr Umalat Nalgiyev, Ms Aset Nalgiyeva, Mr Yakhya Yevloyev, Mr Ibragim Yevloyev, Mr Zalimkhan Yevloyev and Mr Vakha Dobriyev did not provide medical evidence of their alleged injuries (see paragraphs 22 and 23 above). The Court has already found their allegations of ill-treatment to be credible in the circumstances of the case and in view of the materials submitted by the parties. The Court notes, in particular, similar pattern of ill-treatment in respect of other residents and their relatives who lived with them at the same households and had been also ill-treated (see paragraph 19 above and Appendix II).
103. The Court holds that the Government have failed to discharge their burden of proof and produce evidence capable of casting doubt on the applicants’ account of events, which it therefore finds established. In view of the above, the Court has sufficient grounds to consider that the applicants’ allegations of ill-treatment by State officers were credible.
2. Adequacy of the investigation
104. The Court observes that the criminal cases into the applicants’ credible allegations of ill-treatment by State officers were either refused or when opened, they were eventually suspended mainly for the failure to identify perpetrators. The decisions were on many times overruled or quashed as incomplete (see paragraphs 12-15, 36, 39, 47, 52, 59, 62, 73 and 75 above).
105. The Court finds that the investigating authorities did not attempt in a meaningful manner to establish the identities of State officers, involved in the applicants’ ill-treatment, and the individual circumstances surrounding each incident, or the injuries inflicted therein (see, mutatis mutandis, Adzhigitova and Others, cited above, § 223). In the application of Aspiyev and Others (no. 64941/09) the investigation authorities and the domestic courts enlisted a number of law‑enforcement agencies responsible for the operation (see paragraphs 31, 36 and 38 above). Apparently, the lack of cooperation of those agencies to provide information to the investigators about the officers participating in the operations prevented the investigation to produce any meaningful results. The respondent State’s inability to identify those officers responsible for the applicants’ ill-treatment appears to be nothing less than their clear reluctance to find and bring them to justice. The same applies to the cases of Mr Khamidov (no. 32267/08), Mr Tsechoyev (no. 52270/10) and Mr M.O. Aushev and Mr M.M. Aushev (no. 44279/10).
106. The Court finds such approach on the part of the domestic authorities to be particularly unacceptable. Failure to pay any regard to the accountability of military or security personnel has fostered a sense of virtual impunity in respect of State agents and has rendered ineffective in practice the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance (see Adzhigitova and Others, cited above, § 223).
3. Legal classification of ill-treatment
107. The applicants alleged that they had been subjected to torture or inhuman or degrading treatment. Having regard to the circumstances of the case, its case-law on the matter (see Bouyid v. Belgium [GC], no. 23380/09, § 82, ECHR 2015, and Adzhigitova and Others, cited above, § 221), and the applicants’ injuries, the Court finds the following.
108. In view of the severity of the ill-treatment and the consequences for the applicants’ health, the State officers subjected the following applicants to torture: Mr Khamidov (no. 32267/08), Mr Tsechoyev (no. 52270/10), Mr M.O. Aushev and Mr M.M. Aushev (no. 44279/10), Mr Timerlan Aspiyev, Mr Issa Batsayev, Ms Tanzila Esmurziyeva, and Mr Umar Yevloyev (no. 64941/09).
109. The State officers subjected the following applicants to inhuman or degrading treatment: Mr Magomed-Girey Aspiyev, Mr Batyr Dzeytov, Mr Akramat Tatriyev, Mr Temirkhan Tatriyev, Mr Isa Tsoroyev, Mr Yusup Tsoroyev, Mr Magomet Tsuroyev, Mr Isa Yevloyev, Mr Magomed Belanovich Yevloyev, Mr Magomet Khusenovich Yevloyev, Mr Musa Yevloyev, Mr Muslim Yevloyev, Ms Rukiyat Yevloyeva (no. 64941/09). The Court also considers that the applicants who had not obtained any medical documents, namely Mr Khuseyn Nalgiyev, Mr Magomet Nalgiyev, Mr Umalat Nalgiyev, Ms Aset Nalgiyeva, Mr Yakhya Yevloyev, Mr Ibragim Yevloyev, Mr Zalimkhan Yevloyev and Mr Vakha Dobriyev (no. 64941/09) had been subjected to inhuman and degrading treatment, as alleged by them.
4. Conclusion
110. There has, accordingly, been a violation of Article 3 of the Convention under its substantive and procedural limbs in respect of the applicants mentioned in paragraphs 108 and 109 above.
111. The Court finds that there is no need to examine separately the merits of the complaints under Article 13, taken in conjunction with Article 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
112. Mr Khamidov (no. 32267/08), Mr Tsechoyev (no. 52270/10), Mr M.O. Aushev and Mr M.M. Aushev (no. 44279/10) complained about their unrecorded detention by State officers under Article 5 § 1 of the Convention, the relevant part of which reads as follows:
“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: …”
A. Admissibility
113. The Court notes that the complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
114. Having regard to the circumstances of the case and the case materials, the Court finds it established that the applicants were detained for various periods by the State officers without acknowledgment (see paragraphs 5, 10, 47, 60 and 74 above).
115. The Court finds that the applicants’ unrecorded detention was a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and was incompatible with the requirement of lawfulness and with the very purpose of this Article (see Fartushin v. Russia, no. 38887/09, § 54, 8 October 2015). There has accordingly been a violation of Article 5 § 1 of the Convention in respect of Mr Khamidov (no. 32267/08), Mr Tsechoyev (no. 52270/10), Mr M.O. Aushev and Mr M.M. Aushev (no. 44279/10).
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
116. Mr Tsechoyev (no. 52270/10) complained under Article 8 of the Convention of unlawful searches carried out by State officers and the lack of effective domestic remedies in that respect. The Court observes that the complaint was not supported by any evidence that would satisfy the required standard of proof (see Adzhigitova and Others, cited above, § 238). In particular, the applicant’s complaints to the authorities concerned his abduction and ill-treatment. The Court therefore considers that the complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
117. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
118. The amounts claimed by the applicants in respect of non‑pecuniary damage and costs and expenses are indicated in Appendices I and II.
119. The applicants did not provide legal contracts with their representatives.
120. Mr Tsechoyev (no. 52270/10) also claimed compensation for pecuniary damage arguing that due to the alleged persecution by the State officers, he was forced to move to France in 2015. The Court finds the applicant’s claims to reimburse his expenses for moving to France unrelated to the circumstances of the case and dismisses them.
121. Wherever the Court finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations and make a financial award.
122. Having regard to the conclusions and principles set out above and to the parties’ submissions, the Court awards the applicants the amounts detailed in Appendices I and II, plus any tax that may be chargeable to them on those amounts.
123. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Decides to strike out the complaint of Mr Ramazan Nalgiyev (no. 64941/09) under Article 3 of the Convention out of its list;
3. Declares the complaint of Mr Tsechoyev (no. 52270/10) under Article 8 of the Convention about the alleged unlawful search inadmissible, and the remainder of the applications admissible;
4. Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs in that the applicants indicated in paragraph 108 above were subjected to torture by State officers, the applicants indicated in paragraph 109 above were subjected to inhuman and degrading treatment by State officers, and that no effective investigation into their complaints was carried out by the authorities;
5. Holds that there has been a violation of Article 5 of the Convention in respect of Mr Khamidov (no. 32267/08), Mr Tsechoyev (no. 52270/10), Mr M.O. Aushev and Mr M.M. Aushev (no. 44279/10) on account of their unrecorded detention;
6. Holds that there is no need to examine the complaint under Article 13 of the Convention;
7. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in Appendices I and II, plus any tax that may be chargeable to them, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the amounts indicated in Appendices I and II at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 1 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Darian Pavli
Deputy Registrar President
______________
APPENDIX I
| No. |
Case name Application no. Lodged on |
Applicant Year of Birth / Place of Residence Nationality Represented by |
Non-pecuniary damage |
Costs and expenses |
| 1 | Sala Khamidov v. Russia 32267/08 29/05/2008 |
Sala KHAMIDOV 1933 ZnamenskoyeMukhtar Odesovich SHIDAYEV |
Sought by the applicant | |
| RUB 9,000,000 (approx. EUR 103,000) |
Unspecified | |||
| Awarded by the Court | ||||
| EUR 52,000 (fifty-two thousand euros) |
– | |||
| 2 | Aspiyev and Others v. Russia 64941/09 09/12/2009 |
For the list of the applicants’ names and their details, see Appendix II MEMORIAL HUMAN RIGHTS CENTRE |
Sought by the applicant | |
| At the Court’s discretion | EUR 4,500 | |||
| Awarded by the Court | ||||
| See Appendix II | – | |||
| 3 | Aushevy v. Russia 44279/10 27/07/2010 |
Magomed Osmanovich AUSHEV 1981Magomed Maksharipovich AUSHEV 1985MEMORIAL HUMAN RIGHTS CENTRE |
Sought by the applicant | |
| At the Court’s discretion | EUR 5,400 | |||
| Awarded by the Court | ||||
| EUR 52,000 (fifty-two thousand euros) to each of the applicants |
– | |||
| 4 | Tsechoyev v. Russia 52270/10 03/09/2010 |
Zurab TSECHOYEV 1963Bordeaux MEMORIAL HUMAN RIGHTS CENTRE |
Sought by the applicant | |
| At the Court’s discretion | EUR 6,100 | |||
| Awarded by the Court | ||||
| EUR 52,000 (fifty-two thousand euros) |
– | |||
APPENDIX II
List of applicants in the case of Aspiyev and Others v. Russia (no. 64941/09):
| No. | First name Middle name Last Name |
Year of birth Place of residence |
Alleged ill-treatment | Injuries recorded in medical documents (see paragraph 21 above) |
Non-pecuniary damage awarded by the Court |
| 1 | Timerlan ASPIYEV |
1991 Ali-Yurt |
Perpetrators entered his household and beat him with gun butts | Contusion of his chest, closed craniocerebral injury, brain concussion, multiple abrasions | EUR 52,000 (fifty-two thousand euros) |
| 2 | Magomed-Girey ASPIYEV | 1962 Ali-Yurt |
Perpetrators forced him to lie on the ground and beat him with a bulletproof vest | Contusion of his chest, soft tissues and his right kidney | EUR 26,000 (twenty-six thousand euros) |
| 3 | Issa BATSAYEV | 1956 Ali-Yurt |
Perpetrators checked his identity documents; on the way to his neighbours a group of other armed men forced him to lie on the ground, punched and kicked him | Contusion of his chest, heart pain syndrome, hospitalised to the emergency department | EUR 52,000 (fifty-two thousand euros) |
| 4 | Vakha DOBRIYEV | 1961 Ali-Yurt |
Perpetrators entered his courtyard, insulting him, put him face down, hit him with gun butts | No injuries found on the applicant | EUR 15,000 (fifteen thousand euros) |
| 5 | Batyr DZEYTOV | 1965 Ali-Yurt |
Perpetrators entered the house, hit him with gun butts; the applicant was then taken to the hospital | Contusion of his chest and soft tissues of the body | EUR 26,000 (twenty-six thousand euros) |
| 6 | Tanzila ESMURZIYEVA | 1978 Nasyr-Kortskiy District |
Perpetrators entered the courtyard, strangled and slapped her, causing preterm delivery | Preterm delivery, marks of beatings | EUR 52,000 (fifty-two thousand euros) |
| 7 | Khuseyn NALGIYEV | 1942 Ali-Yurt |
Perpetrators entered the courtyard, insulted him, forced him to lie on the ground, pushed him against a wall | No forensic examination | EUR 15,000 (fifteen thousand euros) |
| 8 | Magomet NALGIYEV | 1950 Ali-Yurt |
Two perpetrators forced him to lie on the ground, insulted him, kicked him several times; examined by the ambulance | No forensic examination | EUR 15,000 (fifteen thousand euros) |
| No. | First name Middle name Last Name |
Year of birth Place of residence |
Alleged ill-treatment | Injuries recorded in medical documents (see paragraph 21 above) |
Non-pecuniary damage awarded by the Court |
| 9 | Ramazan NALGIYEV | 1927 Ali-Yurt |
Four perpetrators hit him on the street with gun butts for about 30 minutes | Contusion of his chest, knees, muscle tissues, kidneys, bladder and stomach blunt injury | – |
| 10 | Umalat NALGIYEV | 1987 Ali-Yurt |
Perpetrators forced him to lie on the ground, insulting him; examined by the ambulance | No forensic examination | EUR 15,000 (fifteen thousand euros) |
| 11 | Aset NALGIYEVA | 1962 Ali-Yurt |
Perpetrators entered the courtyard, hit her with a gun butt | No forensic examination | EUR 15,000 (fifteen thousand euros) |
| 12 | Akramat TATRIYEV | 1991 Ali-Yurt |
Perpetrators entered his courtyard, forced him to lie on the ground, hit all over his body, kidney area | Swollen lower lip, two bruises on the lip, bruises on his chest | EUR 26,000 (twenty-six thousand euros) |
| 13 | Temirkhan TATRIYEV | 1965 Ali-Yurt |
Perpetrators broke into his house, hit his head, beat all over his body | Contusion of his chest | EUR 26,000 (twenty-six thousand euros) |
| 14 | Isa TSOROYEV | 1965 Ali-Yurt |
Perpetrators entered the courtyard, forced him to lie on the ground, hit him with gun butts | Bruises on his chest and back | EUR 26,000 (twenty-six thousand euros) |
| 15 | Yusup TSOROYEV | 1969 Ali-Yurt |
Perpetrators beat him with gun butts, twisted his left leg | Bruises on his chest, shoulder, right knee | EUR 26,000 (twenty-six thousand euros) |
| 16 | Magomet TSUROYEV | 1953 Ali-Yurt |
Perpetrators stopped his car, hit him with gun butts for 20 minutes | Contusion of his chest and soft tissues of the body | EUR 26,000 (twenty-six thousand euros) to be awarded to the applicant’s wife, Ms Kazban Tsuroyeva |
| 17 | Ibragim YEVLOYEV | 1982 Ali-Yurt |
Perpetrators entered his house, hit him and his father (applicant no. 20) with gun butts | No information | EUR 15,000 (fifteen thousand euros) |
| 18 | Isa YEVLOYEV | 1973 Ali-Yurt |
Perpetrators entered the courtyard, hit him all over the body | Bruises on soft tissues of the body and blunt stomach injury | EUR 26,000 (twenty-six thousand euros) |
| 19 | Magomed Belanovich YEVLOYEV | 1982 Ali-Yurt |
Perpetrators entered his courtyard, hit him with gun butts and legs, alleged brain concussion | Contusion of his chest and soft tissues of the body | EUR 26,000 (twenty-six thousand euros) |
| No. | First name Middle name Last Name |
Year of birth Place of residence |
Alleged ill-treatment | Injuries recorded in medical documents (see paragraph 21 above) |
Non-pecuniary damage awarded by the Court |
| 20 | Magomet Khusenovich YEVLOYEV | 1954 Ali-Yurt |
Perpetrators entered his house, hit him and his son (applicant no. 17) with gun butts for 20 minutes | Contusion of his chest, left shoulder joint and right scapula | EUR 26,000 (twenty-six thousand euros) |
| 21 | Musa YEVLOYEV | 1974 Ali-Yurt |
Perpetrators kicked him and his brothers (applicants nos. 22 and 25) | Bruises and abrasions on his nose, blunt stomach injury, contusion of his chest | EUR 26,000 (twenty-six thousand euros) |
| 22 | Muslim YEVLOYEV | 1971 Ali-Yurt |
Perpetrators entered the courtyard and kicked him and his brothers (applicants nos. 21 and 25) | Contusion of his chest and soft tissues of the body | EUR 26,000 (twenty-six thousand euros) |
| 23 | Umar YEVLOYEV | 1986 Ali-Yurt |
Perpetrators pulled him from the house, beat him with gun butts; held at the hospital for two days | Rip of his right arm biceps | EUR 52,000 (fifty-two thousand euros) |
| 24 | Yakhya YEVLOYEV | 1960 Ali-Yurt |
Perpetrators kicked him, took him barefoot to the yard, beat him to his head and body; he had lasting kidney pain | No forensic examination | EUR 15,000 (fifteen thousand euros) |
| 25 | Zalimkhan YEVLOYEV | 1967 Ali-Yurt |
Perpetrators pulled him and his brothers (applicants nos. 21 and 22) from his house, forced him to lie on the ground, kicked and punched him; taken to the hospital, left leg injured | No documents | EUR 15,000 (fifteen thousand euros) |
| 26 | Rukiyat YEVLOYEVA | 1952 Ali-Yurt |
Perpetrators pulled her from the house, hit her head with a gun butt | Contusion of his chest and soft tissues of the body | EUR 26,000 (twenty-six thousand euros) |
Leave a Reply