ITEMID: 001-81604
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MAGOMADOV AND MAGOMADOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 2;Violation of Art. 3;No violation of Art. 3;Violation of Art. 5
JUDGES: Christos Rozakis
TEXT: 6. The applicants are brothers. They were born in 1967 and 1965 respectively and lived in Chechnya.
7. The facts surrounding the disappearance of the applicants' brother, Ayubkhan Magomadov, and of the first applicant, as presented by the parties, are set out in Part A. A description of the materials submitted to the Court is contained in Part B.
8. The applicants lived with their family in the village of Kurchaloy in Chechnya. Their brother, Ayubkhan Magomadov, born in 1969, lived in the same house. He played for the local football team and in 1998 received the “Best Football Player of the Kurchaloy District” award.
9. The applicants submitted that on 2 October 2000 their house and their neighbours' house had been searched by an armed unit of the Federal Security Service (FSB), which had arrived in five UAZ vehicles and several armoured personnel carriers (APCs). No documents authorising the search were presented. Ayubkhan Magomadov was arrested in his house by men in military uniforms. They drove him away and he has not been seen since.
10. Immediately after Ayubkhan Magomadov's arrest the family started to look for him. They applied to various law-enforcement authorities in Chechnya and in Moscow, asking for information about him. They have submitted to the Court copies of letters addressed to the Chechnya Prosecutor's Office, the Chechnya Department of the FSB and the Chechnya Department of the Interior, as well as the Prosecutor General, the Chief Military Prosecutor, the director of the FSB and the Minister of the Interior. The relatives received very little substantive information in reply. On several occasions they received copies of letters stating that their complaints had been forwarded to other authorities.
11. On 12 October 2000 the head of the criminal police of the Oktyabrskiy Temporary Department of the Interior (VOVD) in Grozny (начальник криминальной милиции временного отдела внутренних дел Октябрьского района г. Грозного), Major I., issued a certificate stating that on 2 October 2000 Ayubkhan Magomadov had been detained in Kurchaloy on suspicion of having committed a serious crime. The suspicion had been dispelled, and Mr Magomadov had been released on 3 October 2000 at 8.30 a.m., after the end of the curfew.
12. The applicants' mother submitted that when she had requested to see the register of detainees in the Oktyabrskiy VOVD for the relevant dates, she had been refused permission.
13. On 6 November 2000 the Chechnya Department of the FSB informed the applicants' mother that the officers of the Kurchaloy District department of the FSB had not participated in the operation of 2 October 2000. At the same time the letter stated that on 2 October 2000 the head of the district department of the FSB, following a request from the Oktyabrskiy VOVD, had met with an “operative group” at the checkpoint between the villages of Oktyabrskoye and Novaya Zhizn. The letter further explained that Ayubkhan Magomadov had visually resembled a “wanted fighter” and that because of that the servicemen of the Ministry of the Interior “had invited him to the Oktyabrskiy VOVD in Grozny to clarify some questions of interest to them”. The letter stated that the FSB had no information about the whereabouts of Ayubkhan Magomadov and advised his mother to apply to the Oktyabrskiy VOVD.
14. On 17 November 2000 the Ingushetia Prosecutor's Office forwarded the applicants' mother's complaint about her son's detention to the Kurchaloy District Prosecutor. On 22 November and 1, 7 and 24 December 2000 the Ministry of the Interior forwarded the first applicant's complaints to the Chechnya Department of the Interior. On 13 December 2000 the Chechnya Prosecutor's Office forwarded the applicants' parents' complaint about the disappearance of their son to the Kurchaloy District Prosecutor's Office, with an instruction to open a criminal investigation under Article 126 of the Criminal Code (kidnapping).
15. On 9 December 2000 the Argun Inter-District Prosecutor's Office informed the first applicant that a criminal investigation into his brother's kidnapping had been opened on that same day.
16. On 20 December 2000 the Chechnya Department of the Interior informed the first applicant that on 2 October 2000 Ayubkhan Magomadov had been detained by the FSB officers on suspicion of involvement in illegal armed groups. He had been taken to the Oktyabrskiy VOVD in Grozny. Following an inquiry, it had been established that the detainee had no connection to the illegal armed groups and he had been released on the same day. However, in view of the curfew, he had requested to spend the night at the VOVD and had been permitted to do so. In the morning of 3 October 2000 he had left the VOVD and had never been seen again. The letter further stated that pre-trial detention centre IZ-4/2 in Chernokozovo had denied that Mr Magomadov had ever been detained there. On 8 November 2000 a search file (no. K-031/2000) had been opened and forwarded to the Oktyabrskiy VOVD as it was the last place where he had been seen.
17. On 29 January 2001 the head of the criminal investigations unit of the Chechnya Department of the Interior stated that the initial complaint about Ayubkhan Magomadov's disappearance had arrived at the Department on 15 November 2000. It had first been forwarded to the Kurchaloy VOVD and then, on 6 December 2000, to the Oktyabrskiy VOVD. No news had been obtained in the case after that. The Department's missing persons database contained no reference to an A.A. Magomadov.
18. On an unspecified date the Chechnya Department of the Interior issued a notice which stated that Ayubkhan Magomadov had been detained on 2 October 2000 by officer R. of the Oktyabrskiy VOVD, accompanied by the staff of the Kurchaloy district department of the FSB, on suspicion of having committed a crime. The detainee had been delivered to the Oktyabrskiy VOVD, where he had been checked and it had been established that he had no involvement in the crime. Ayubkhan Magomadov had been released at 8.30 a.m. on 3 October 2000 and had never been seen again by the VOVD officers. A document concerning the “operative measures” conducted to investigate Mr Magomadov's involvement in a crime had been issued to the officers of the Kurchaloy department of the FSB.
19. On an unspecified date a testimonial as to the character of Ayubkhan Magomadov was issued and signed by a number of sports officials from the Kurchaloy district and by more than 40 members of the football team and its supporters. It attested that he was a good player and a reliable member of the team and stated that, since 1994, when the hostilities had started in Chechnya, Ayubkhan Magomadov “had nothing to do with illegal armed groups or with terrorist activities, was not interested in the Wahhabist movement, did not use or distribute illegal drugs, and did not sell arms”.
20. On two occasions the NGO Memorial, acting on the first applicant's behalf, contacted the Prosecutor General with requests for information. Its letter of 5 March 2001 referred to the contradictory information obtained by his relatives from law-enforcement bodies. It indicated that there had been no entries in the register of detainees of the Oktyabrskiy VOVD referring to a Mr Magomadov. They also attached a copy of a statement by the head of the Kurchaloy village administration to the effect that on 2 October 2000 there had been a “special operation” in the village, as a result of which Ayubkhan Magomadov had been detained by unknown “military servicemen”. Memorial further requested a number of actions to be taken by the law-enforcement bodies to clarify the circumstances of Mr Magomadov's detention and to inform his relatives about the progress of the investigation.
21. On 19 December 2002 the Chechnya Prosecutor's Office informed the first applicant that on 17 December 2002 a decision to adjourn the criminal investigation in the case in which he was a victim had been quashed and the proceedings had been resumed. No further details were given.
22. On 17 March 2003 Memorial again contacted the Prosecutor General, requesting information about the criminal investigation into Ayubkhan Magomadov's disappearance. It appears that this letter remained unanswered.
23. The Government in their memorial of 16 September 2004 referred to documents received from different authorities, and gave several inconsistent versions of what had happened to Ayubkhan Magomadov on 2 and 3 October 2000. They submitted that the investigation had failed to identify the persons responsible for his kidnapping or to establish his whereabouts. Mr Magomadov had been declared a missing person and put on the federal missing persons list. They also stated that there existed information that in November and December 2000 he had been spotted in internally displaced persons' (IDP) camps in Ingushetia, recruiting fighters for the field commander Ruslan Gelayev.
24. On 31 May 2004 the applicants' representatives informed the Court about the first applicant's “disappearance”. They referred to Article 34 of the Convention and linked the first applicant's arrest with his application to the Court in connection with his brother's disappearance. They submitted that in April 2004 the first applicant had been in Moscow. He had last contacted his relatives on 19 April 2004.
25. The second applicant referred to information received from another of his brothers, Ibragim Magomadov, and his nephew, Khisir Magomadov. They had apparently been visited in their house in Kurchaloy on 29 April 2004 by a group of persons wearing camouflage and masks who had been looking for the first applicant. After intervention by other security officers the men in camouflage had presented FSB identity documents. They had instructed Ibragim Magomadov to come to the local FSB office. Several days later at the local FSB office Ibragim Magomadov was told that a criminal case had been opened against his brother, the first applicant. No further details were given.
26. On 16 May 2004 a man claiming to be a member of the Security Service of the President of Chechnya brought a note to the applicants' mother's house. The note was allegedly written by the first applicant and addressed to his family. This note was interpreted by his family as meaning that the applicant was at that time detained at the main Russian military base in Chechnya, in Khankala. It was dated 16 May 2004 and signed “Magomadov”. The applicants submitted a copy of this note to the Court. It says:
“Hello, mother, father and the rest,
I am fine. I am in good health, I am alive and well, and wish you the same. Mother, you probably recognise my handwriting. Grandmother Makka, grandfather Makhmud. Mother, your father's name was Yapu, your mother's was Shumiyat.
Elisa, Timur from Geldagen will bring the letter. Please help him to find Yusup, in order to release me. At present I am in our republic. Yusup will be fine. You should find Doda through Yusup.”
27. On 7 June 2004 the Russian Human Rights Commissioner sent a letter to the Ministry of the Interior, asking them to take steps to discover the whereabouts of Mr Yakub Magomadov, an applicant to the Court.
28. On 24 June 2004 the Court requested the respondent Government to submit additional factual information concerning the first applicant's whereabouts and asked them whether he had been detained by a State authority in April or May 2004.
29. On 5 July 2004 the Ministry of the Interior responded to the Human Rights Commissioner. It had established that at the beginning of 2004 the first applicant had arrived in Moscow. On 8 February 2004 the first applicant had been briefly detained by officers from the Department of the Interior of the Moscow South-Eastern Administrative Circuit for an administrative offence, namely a breach of the requirement to be registered at his place of temporary residence. The letter further stated that the first applicant was not registered as residing in the capital, and that he had not been found on the lists of victims of accidents, missing persons, inmates of pre-trial detention centres or wanted persons. No applications were recorded at the bodies of the Ministry of the Interior about his abduction or search.
30. On 22 July 2004 the Department for Organised Crime of the Ministry of the Interior forwarded a letter to the Russian Human Rights Commissioner. The letter stated that the criminal case concerning Ayubkhan Magomadov's abduction was pending with the Kurchaloy District Prosecutor's Office. As to the first applicant, the Ministry of the Interior had no information about his whereabouts or alleged kidnapping.
31. On 1 July 2004 the Kurchaloy District Prosecutor's Office decided not to open criminal proceedings into the alleged abduction. On 19 July 2004 the Chechnya Prosecutor's Office quashed this decision and opened criminal investigation file no. 44032 under Article 126 of the Criminal Code (kidnapping). The Kurchaloy District Prosecutor's Office was entrusted with the investigation. Documents from the investigation file, submitted by the Government, are summarised below in Part B.
32. The Government in their memorials stated that it was impossible to establish the first applicant's whereabouts. No evidence had been obtained in support of the allegation that the first applicant had been detained at the Khankala military base, or that he had been kidnapped by servicemen of the State in connection to his application to the Court. Nor was there any information available to connect the first applicant with the illegal armed groups operating in Chechnya. The Government referred to the information from the Ministry of the Interior and the FSB, which denied having ever detained the first applicant and stated that they had no information about his whereabouts. The Government also stated that in July 2004 the investigation into the first applicant's kidnapping had questioned two relatives of the first applicant and that his mother had been granted victim status in the proceedings. One serviceman of the Ministry of the Interior of Chechnya, M.D., was questioned and stated that he had heard that the first applicant had been in Moscow prior to his disappearance. It also follows from the documents submitted by the Government that the first applicant was under arrest warrant for illegal handling of explosive devices.
33. It follows from the Government's memorials and from a copy of the prosecutor's order of 26 January 2006, submitted by them, that the criminal investigation into the first applicant's kidnapping was adjourned on 5 July 2005, on account of the failure to identify the culprits. On 26 January 2006 the investigation at the Chechnya Prosecutor's Office was resumed.
34. The applicants submitted a copy of an information letter from the Prosecutor General's Office, containing details of a number of allegations of persecution of human rights activists in the Northern Caucasus, based on the relevant report by the Amnesty International. In respect of the alleged abduction of the first applicant, the letter stated that in July 2004 the first applicant had been charged in absentia with illegal storage and transfer of explosive devices and put on the wanted list. They also cited data from the transport police, according to which the first applicant had travelled in May 2004 from Gudermes (Chechnya) to Rostov-on-Don. The Prosecutor General's Office noted that his relatives had not applied to the law-enforcement bodies with regard to his disappearance. In this connection, the Prosecutor General's Office concluded that there were reasons to suspect that the first applicant had staged his disappearance in order to evade justice (see Part B below).
35. The parties submitted a number of relevant documents, summarised below.
36. In September 2004 the Government submitted copies of the entire investigation file no. 38305 opened in relation to Ayubkhan Magomadov's disappearance. The case file consisted of three volumes comprising about 700 pages. In addition to these, in February 2006 the Government submitted an update and copies of documents produced after September 2004. The most important documents can be summarised as follows:
37. On 9 December 2000 the Kurchaloy District Prosecutor's Office opened a criminal investigation into the arrest of Ayubkhan Magomadov, born in 1969, by unidentified armed persons on 2 October 2000 at his home in Kurchaloy. The decision referred to Article 127, paragraph 1, of the Criminal Code (unlawful deprivation of liberty).
38. On 17 October 2000 the applicants' mother wrote a letter to the Chechnya Prosecutor in which she described the circumstances of her son's arrest and asked him to establish his whereabouts.
39. On 10 November 2000 she submitted a similar letter to the Ingushetia Prosecutor.
40. On 17 November 2000 the first applicant and his parents contacted the Prosecutor General, the Chief Military Prosecutor, the head of the FSB and the Minister of the Interior with a complaint about the inaction of the investigating bodies. They referred to the inconsistent statements made by various bodies and asked the authorities to carry out a number of investigative steps to find out the whereabouts of their relative.
41. On 7 and 13 February 2001 the first applicant wrote to the Chechnya Prosecutor and complained about the inefficiency of the investigation. He requested the prosecutor to inform him of the results of the investigation. He also offered to assist the investigation in organising the search for his brother.
42. On 17 December 2002 the investigator informed the first applicant that the investigation of the criminal case had been resumed.
43. On 22 December 2000 the first applicant was questioned as a witness about the circumstances of his brother's arrest and disappearance. In his statement he referred to the document signed by the head of the Oktyabrskiy VOVD stating that his brother had allegedly been released on 3 October 2000, but added that the family had had no news of him.
44. On 23 December 2000 the investigators questioned the applicants' mother. She submitted an account of her son's detention and the search for him. She also submitted a photograph of Ayubkhan Magomadov.
45. On 23 April 2002 the investigators questioned the first applicant. He confirmed that the family had had no information about his brother since 2 October 2000. On the same day he was granted the status of a victim in the proceedings.
46. On 29 May 2002 the first applicant was again questioned about the circumstances of his brother's detention and the search for him.
47. On 17 June 2002 the investigators questioned the head of the Kurchaloy village administration. He stated that on 2 October 2000 at about 2 p.m. he had been alerted by the residents to the fact that a “sweeping” operation was taking place at the Magomadovs' home. When he arrived there he saw two APCs with concealed numbers and about 20 men in camouflage around the house, mostly wearing masks. The witness did not know the servicemen who had conducted the operation and they had refused to identify themselves. The officers of the military commander's office and of the local police station, to whom he had applied, had not been aware of the operation and had refused to accompany him to the site. When a couple of hours later he had returned there, Ayubkhan Magomadov's mother had told him that her son had been taken away by the military. About two weeks later he had gone to the Oktyabrskiy VOVD to assist the relatives in the search for Ayubkhan Magomadov, together with officer B. from the district FSB department. The officer had gone inside and had returned about half an hour later with a letter which confirmed that on 2 October 2000 Mr Magomadov had been detained there and released on the following day. He had had no news of Ayubkhan Magomadov since.
48. On 24 December 2000 the investigator examined the log entries of the Oktyabrskiy VOVD listing the persons who had been delivered to the department premises and the persons who had been detained in the temporary detention unit (изолятор временного содержания – ИВС) between 30 September and 8 October 2000. Ayubkhan Magomadov was not listed in either of the logs.
49. On 2 January 2001 the Oktyabrskiy VOVD confirmed that Ayubkhan Magomadov's name was not listed in their records.
50. On 9 January 2001 the investigator requested the prosecutor of the Khanty-Mansiysk Region to question the police staff who had been on an assignment in the Oktyabrskiy VOVD in October 2000 about the circumstances of Ayubkhan Magomadov's detention, questioning and release.
51. On 28 March 2003 the investigator instructed the Tyumen Regional Prosecutor to question Major I., who at the relevant time had headed the criminal police at the Oktyabrskiy VOVD.
52. On 4 June 2002 the investigator requested the Khanty-Mansiysk Regional Prosecutor to question Major I. and officer R., who had at the time served at the Oktyabrskiy VOVD.
53. On 19 and 20 December 2002 the investigator again requested the Khanty-Mansiysk and Tyumen Regional Prosecutors to question officer R., Major I. and other servicemen, and supplied them with a detailed list of questions concerning the events of 2 to 3 October 2000.
54. On 21 January 2003 officer R. was questioned and stated that he had served at the Oktyabrskiy VOVD between 29 August and 11 November 2000. During that period he had on many occasions participated in operations in the village of Kurchaloy, and therefore he could not recall any specific details about the operation of 2 October 2000. He remembered that he had received operational information from undisclosed sources according to which Ayubkhan Magomadov had been an active member of the illegal armed group headed by Gelayev. On 2 October 2000 he had taken part in the cordoning-off of the Magomadovs' house in Kurchaloy, while other servicemen had been in charge of Ayubkhan Magomadov's arrest and questioning. R. stated that Mr Magomadov had been released from the VOVD before the end of the curfew hours and that he was not aware of any documents drawn up in respect of his detention, questioning or release. He further stated that he had heard from other servicemen of the VOVD and of the FSB that in late October or early November 2000 Mr Magomadov had been seen recruiting new members to Gelayev's group in the IDP camps in Ingushetia.
55. On 14 May 2003 R. was again questioned. He stated that on 2 October 2000, along with other officers of the VOVD, he had accompanied the FSB officers from Grozny to Kurchaloy, where they had detained Ayubkhan Magomadov and brought him to the VOVD. R. stated that when the group had arrived at Kurchaloy they had first visited the district department of the FSB and two officers from that department had accompanied them to the Magomadovs' house. R. could not recall the names of these officers, but he was certain that they were from the Grozny Department of the FSB where he had been on many occasions and seen them. He was also certain that they had a “good relationship” with the head of the VOVD and that that was the reason why the officers of the VOVD had accompanied them and had afterwards allowed them to question the detainee on their premises. R. stated that some FSB officers had told him that Mr Magomadov had been involved in illegal arms transfers and that later he had been seen in Ingushetia recruiting fighters. On 18 December 2003 R. was shown a photograph of Ayubkhan Magomadov, but did not identify him.
56. On 11 March 2003 the investigation questioned Major I., who at the relevant time had headed the criminal police of the VOVD. Major I. stated that a group of FSB officers had brought a detainee to the premises of the Oktyabrskiy VOVD and questioned him there. He was not aware of the details of the case and had not given any orders to detain or to question Ayubkhan Magomadov. The officers of the VOVD had not participated in the detention or questioning of the detainee, and he had not been placed in the administrative detention cell. Major I. testified that he had seen the detainee being questioned by the officer in charge of the FSB group, that the detainee had looked normal and that no physical pressure had been put on him. On the following day he had asked the FSB officers if there were any unauthorised persons on the VOVD premises, to which they had replied in the negative. Major I. denied that he had issued the notice of 12 October 2000 which had confirmed Mr Magomadov's detention on the VOVD premises, and denied that he had seen it before or had signed it. He alleged that some FSB officers had requested him to issue such a notice but that he had refused to do so.
57. In June 2003 a handwriting analysis concluded that it was impossible to determine whether it was indeed Major I.'s signature on the notice, owing to the insufficient amount of material under examination.
58. On 7 December 2003 the investigator was informed that further questioning of Major I. was not possible because the latter had quit the service and left his previous place of residence.
59. On 28 April 2003 the investigation questioned Colonel S., who at the relevant time had headed the Oktyabrskiy VOVD in Grozny. He stated that the officers of the department had participated in many special operations, that he could not recall any details about the one of 2 October 2000 and that all the information should be available in the appropriate records of the VOVD.
60. Between January and June 2003 the investigators questioned more than 60 servicemen of the Khanty-Mansiysk and Tyumen regional departments of the interior who from August to November 2000 had served at the Oktyabrskiy VOVD in Grozny. Nobody admitted taking part in the detention or questioning of Ayubkhan Magomadov, and no one identified him on the photograph. The officers responsible for the administrative detention cell stated that all detainees had been properly recorded, that the cell was the only place used for detention in the department and that the records were left in the VOVD for the next shift. They stated that the detainees could only be transferred to another law-enforcement body, such as the FSB, further to a written order from the head of the VOVD.
61. The investigators also identified persons who had been detained in the administrative detention cell at the Oktyabrskiy VOVD. Two of them were questioned in December 2003, and stated that Ayubkhan Magomadov had not been detained with them there or in the Chernokozovo pre-trial detention centre (SIZO) between August 2000 and March 2001.
62. In response to the investigator's request of March 2002, the Kurchaloy district department of the FSB on 10 April 2002 denied any involvement in the detention of Ayubkhan Magomadov.
63. On 27 April 2002, following a request by the first applicant, the investigator requested the head of the Chechnya Department of the FSB to identify and question officer P., who had headed the Kurchaloy district department of the FSB in October 2000, and who had allegedly participated in Ayubkhan Magomadov's arrest and questioning.
64. On 4 June 2002 the investigator requested the Kurchaloy District department of the FSB to submit a copy of the document issued to them by the Oktyabrskiy VOVD concerning the “operative measures” conducted to check Ayubkhan Magomadov's involvement in a crime. He also requested the department to find and question officer P. and any other persons who had been involved in the operation of 2 October 2000 and Mr Magomadov's questioning.
65. On 18 June 2002 the Kurchaloy District department of the FSB replied to the investigator that its office had no archives and therefore was unable to submit a copy of the document requested.
66. On 23 June 2002 the Chechnya Department of the FSB informed the investigator that it had no information about the operation of 2 October 2000 or about Mr Magomadov's arrest. They also stated that the officer who had been in charge of the district department at the relevant time had returned to his permanent place of service after the completion of his assignment, and that his whereabouts would be communicated later.
67. On 26 November 2003 the Chechnya Department of the FSB again stated that its service had not detained Ayubkhan Magomadov and had no information about him.
68. On 10 December 2000 the investigator requested the military commander of the Kurchaloy District to inform him which military units had participated in the special operation on 2 October 2000 and where Ayubkhan Magomadov was. In an undated reply the district military commander denied that any special operations with the participation of the military servicemen had taken place in Kurchaloy on that date and stated that the commander's office had no information about the whereabouts of the missing person.
69. On 9 January 2001 the investigator requested the Grozny prosecutor to check whether Ayubkhan Magomadov was still being detained at the Oktyabrskiy VOVD, since there had been no news of him after his alleged release on 3 October 2000.
70. In March 2002 the investigator forwarded a number of requests to the FSB, the military commanders' offices, the Kurchaloy and Oktyabrskiy district departments of the interior (ROVD), and detention facilities in the Northern Caucasus. The requests sought information about the operation carried out on 2 October 2000 in Kurchaloy, the detention of Mr Magomadov at the Oktyabrskiy VOVD on 2 and 3 October 2000, any witnesses and persons responsible for questioning him, and his current whereabouts. To the letters were attached photographs and a description of Mr Magomadov. The relevant authorities were requested to submit copies of the custody records for the periods in question.
71. In reply to the requests, on 6 April 2002 the military commander's office of the Kurchaloy District stated that none of its servicemen had participated in any operations on 2 October 2000 and that it had no information about the whereabouts of Ayubkhan Magomadov. Similarly, the Kurchaloy ROVD replied that its officers had been serving in Chechnya after 29 February 2002 [sic] and that upon arrival they had not received any registration documents relating to 2000.
72. In 2002 and 2003 the regional departments of the Ministry of Justice in the Northern Caucasus responsible for pre-trial detention facilities and the regional departments of the FSB each stated that Ayubkhan Magomadov's name was not in their respective lists of detainees.
73. On 24 April 2002 the Kurchaloy VOVD informed the investigators that on 28 June 2001 they had opened a search file (no. 15/15) in respect of the missing person A.A. Magomadov. Previously a search file had been opened by the Oktyabrskiy VOVD as no. 3/03.
74. In 2003 the regional departments of the Ministry of the Interior in the Southern Federal Circuit, in reply to requests from the investigator, confirmed that Ayubkhan Magomadov had been placed on the federal wanted list as a missing person, but that they had no information about him.
75. In November 2003 the investigators requested the Chechnya Department of the Interior to check Ayubkhan Magomadov's involvement with illegal armed groups. They also requested the Zavodskoy ROVD of Grozny to submit a copy of the search file opened by that office. It appears that both requests remained unanswered.
76. The copy of case file no. 38305 contains documents relating to other criminal cases investigated by the same prosecutor, concerning “disappearances” of several persons, allegedly after their detention at the Oktyabrskiy VOVD in Grozny between September and October 2000. According to these documents, on 29 September 2000 the officers of the VOVD had detained K.M. near a café at Lenina Street and delivered him to the VOVD, after which he had disappeared. On 6 October 2000 unidentified military servicemen had detained B.A. at roadblock no. 102 in Grozny because he had been carrying an invalid identity document, and had taken him to the Oktyabrskiy VOVD, after which point his whereabouts were unknown. On 19 October 2000 unknown military servicemen had detained M.T. in Lenina Street and delivered him to the Oktyabrskiy VOVD, after which he had disappeared. On 17 October 2000 A.Z. had arrived at the Oktyabrskiy VOVD, where he had been employed on a temporary contract, to receive his salary. After being discharged, he had been seen in the courtyard of the VOVD and had then disappeared, and his whereabouts remained unknown. The officers of the VOVD questioned about these persons denied having seen or detained them.
77. On 9 March 2001 the investigator of the Argun District Prosecutor's Office adjourned the investigation in criminal case no. 38305 owing to the failure to identify the culprits.
78. On 13 February 2002 a prosecutor from the Chechnya Prosecutor's Office quashed the order of 9 March 2001 and forwarded the case to the Argun District Prosecutor's Office for additional investigation. The order also listed a number of actions necessary for the conduct of the investigation, including identification and questioning of the officers of the Oktyabrskiy ROVD and other law-enforcement authorities who had been responsible for Ayubkhan Magomadov's detention, questioning and release.
79. Between December 2000 and January 2006 the investigation was adjourned eight times, and each time it was resumed with an instruction to carry out a more detailed investigation. The prosecutors, in particular, ordered to identify and question the officers of the FSB who had participated in the detention and questioning of Ayubkhan Magomadov. The latest document in the investigation file was dated 26 January 2006 and again ordered steps to elucidate the disappearance.
80. The applicants submitted information relating to other cases of “disappearances” in Grozny in 2000 and 2001. They stated that there had been several dozen cases of disappearances in the Oktyabrskiy district in 2000 and 2001. They listed 11 persons who had been detained between February and September 2000 and who had last been seen at the Oktyabrskiy VOVD, after which they had disappeared or been found dead. In all cases criminal investigations and/or searches had been commenced but had produced no results.
81. The applicants also submitted information about the trial in 2005 of a police officer, Sergey L., from the Khanty-Mansiysk Region, who had been charged with fraud, abuse of power and causing grave bodily harm, committed in January 2001. According to the bill of indictment, the officer had severely beaten a detainee on the premises of the Oktyabrskiy VOVD on 2 January 2000. According to the witness statements, as a result of the beatings the detainee had lost consciousness and suffered numerous fractures and other injuries. In order to conceal the crime, on the following morning the officer had forged a notice of release and driven the detainee away. The detainee had never been found and was considered a missing person.
82. The Government submitted a number of documents from the file on the criminal investigation opened into the first applicant's disappearance. On 1 July 2004 the Kurchaloy District Prosecutor reviewed information about the first applicant's disappearance and concluded that it was not necessary to conduct a criminal investigation owing to the absence of corpus delicti. The decision referred to the information obtained from the first applicant's relatives in Kurchaloy and from his ex-wife M.K. in Moscow, according to which he had not been seen since early April. It also referred to the note transmitted by an officer of the law-enforcement authorities to the first applicant's relatives, from which they concluded that he had been detained in Khankala and had asked them to find a certain person in order to be released.
83. On 19 July 2004 the Chechnya Prosecutor's Office quashed the order of 1 July 2004 and ordered a criminal investigation into the disappearance. The order noted that there were reasons to believe that the first applicant had been kidnapped.
84. The investigation file was assigned no. 44032. In August 2004 the investigation was transferred to a district prosecutor's office in Moscow, because the first applicant had been last seen there. The investigation located and questioned the first applicant's ex-wife, M.K., who stated that she and the first applicant had divorced in 2001 and that she had last seen him in October 2003.
85. Furthermore, the investigation found out that the first applicant was on the wanted list on suspicion of having committed the offence of illegal storage of explosive materials. The criminal case against the first applicant had been investigated by the FSB. In view of such circumstances the investigation concluded that the possibility of the first applicant's kidnapping by members of the law-enforcement bodies was ruled out. It failed to obtain any information concerning the first applicant's alleged kidnapping in Moscow in April 2004.
86. In January 2005 the investigation of the criminal case was entrusted to the Chechnya Prosecutor's Office. On 5 July 2005 the investigation was adjourned on account of failure to establish the culprits. On 26 January 2006 the investigation was resumed. The Deputy Prosecutor of Chechnya noted that the investigation was incomplete and had failed to elucidate the circumstances of the first applicant's disappearance.
87. The applicants submitted a copy of a letter from the Prosecutor General's Office to the Chairwoman of the Presidential Council for the Development of Civil Society and Human Rights, Mrs Ella Pamfilova. The letter, dated 1 March 2005, contained information concerning a number of allegations of persecution of human-rights activists in the Northern Caucasus, based on a report by Amnesty International. In respect of the first applicant, the letter stated the following:
“It was established that Ya. A. Magomadov had left for Moscow on 2 April 2004 and had last contacted his relatives on 19 April 2004, after which date there had been no news from him. On 29 April 2004 unknown persons, armed with firearms and wearing camouflage uniforms and masks, looked for Magomadov in Kurchaloy. On 16 May 2004 the relatives received a note allegedly written by Magomadov and a copy of his passport photo. The man who had brought the note and the photograph stated that [the first applicant] was being detained at the military base in Khankala, that he had been brought there from Moscow and that [his relatives] were required to find a certain person in exchange for his release.
The relatives contacted the military base in Khankala, where they were told that [the first applicant] was not being detained there. It follows from Ibragim Magomadov's statements that the note was delivered to them by a member of the Security Service of the President of Chechnya by the name of Timur, born in the village of Geldagen.
According to information submitted by the head of the Kurchaloy ROVD, serviceman [Magomed D.] of the street patrol service of the Ministry of the Interior of Chcehnya (полк ППСМ при МВД ЧР) uses the radio call signal 'Lord' and is known to his friends and relatives as Timur. When questioned as a witness, [D.] stated that he came from the village of Geldagen. He did not know [the first applicant] and had never seen him. He was aware of the latter's detention in Moscow from local residents.
The mother of the missing person, M. Magomadova, was questioned as a witness and stated that in 2000 during a 'sweeping operation' her son Ayubkhan had been kidnapped. ... Another of her sons, [the first applicant], was actively searching for Ayubkhan, but did not find anything. [The first applicant] has lived in Moscow since the early 1990s. While in Moscow, he submitted an application to the European Court. In connection with the search for his brother, [the first applicant] came to Chechnya and told her that servicemen from the law-enforcement bodies had advised him to be less persistent in the search for his brother. She was not aware of any other pressure put on [the first applicant]. She was also not aware of the search allegedly carried out at her house by FSB officers on 19 May 2003. As to the information from Memorial that [the first applicant] had contacted them on 18 or 19 April 2004 for the last time, she explained that he could not have called them because there was no telephone connection with Kurchaloy.
On 29 April 2004 [M. Magomadova] returned home from Gudermes, and her daughter-in-law told her that around lunchtime they had been visited by officers of the law-enforcement bodies who had been looking for [the first applicant], and had then asked Ibragim [Magomadov, the applicants' brother] to come to the military commander's office. On the following day Ibragim went to the military commander's office, but she was not aware of the contents of the conversation. She was not aware about the note allegedly received from [the first applicant] and she would not be able to identify his handwriting.
Ibragim Magomadov, the brother of the [first applicant], explained that he had a younger brother by the name of Yusup, who for the last two years had lived in Moscow. He was afraid to return to Chechnya because he had friends among members of [illegal armed groups]. [The first applicant] also did not allow him to come home. When he was questioned as a witness, Ibragim Magomadov stated that for about one year Yusup had not lived at home, and that, according to hearsay, he had joined an illegal armed group. He was not aware of his whereabouts. [The first applicant] was last at home in February, March and April 2004. As to the information from Memorial that [the first applicant] had called them on 18 and 19 April from Moscow, it could not be true, because there was no telephone connection with Kurchaloy.
On 29 April 2004 he received a message through his wife to appear before the law-enforcement bodies. On 30 April 2004 he went to the military commander's office, where he talked to an FSB officer by the name of Sergey. He asked him questions about [the first applicant], in particular whether he had come by car and whether he had a car.
In mid-May 2004 they were visited by a member of the President's Security Service called Timur, nicknamed 'Lord', who had brought a note from [the first applicant] in which he had written that he was in the territory of Chechnya. Timur also said that [the first applicant] had asked for a man called Doda to be found through their brother Yusup. The note was written [in the first applicant's] handwriting. They did not apply to Khankala in connection with the search for [the first applicant]. They did not look for Doda, because they had no connection with Yusup. [Four other relatives] gave similar statements.
[The second applicant] stated, in addition, that after he had received the note he had gone to Moscow, where he had met M.K. [the first applicant's ex-wife]. She said that she had last seen him in Moscow in April 2004. She did not explain under what circumstances. She also stated that the officers of the Moscow Criminal Police Department were trying to find [the first applicant]. He did not take any other steps to find his brother, and did not apply to the military base in Khankala. He was not aware of [the first applicant's] whereabouts.
The head of the Kurchaloy District Department of the FSB replied that they were not aware of [the first applicant's] whereabouts and had taken no action to find him.
During the investigation it had proved impossible to locate the original of the note. Apart from that, the relatives had no examples of [the first applicant's] handwriting, and therefore it was impossible to verify who had been the author of the note.
On 16 August 2004, according to information from witnesses and Memorial that [the first applicant] had been last seen in Moscow, the case was forwarded to the Moscow Prosecutor's Office for investigation.
The head of the Operational/Search Bureau – head of centre “T” (начальник ОРБ - начальник центра «Т») [of the Main Department of the Ministry of Internal Affairs of Russia responsible for the Southern Federal Region?] replied to the investigator that [the first applicant] was wanted by the Investigative Department of the Russian FSB in relation to the investigation of a criminal case.
It was established that criminal case no. 245 had been opened on 29 July 2004 by a senior investigator for particularly serious cases, from the Investigative Department of the Russian FSB, under Article 222, paragraph 2, of the Criminal Code. The criminal investigation was opened on the basis of a statement by [M.] about the illegal storage of explosive devices in the following circumstances.
In 2003 M. had met a resident of the village of Kurchaloy named Yakub. In November 2003 Yakub asked him to hide some arms which belonged to him. Several days after the conversation Yakub brought him several packages, which, as M. had guessed, were explosive devices. He hid the packages in a barn at the following address: Moscow Region... In February 2004 M. decided to get rid of the explosives. He took five packages to the pond located at ... and, having broken the ice, threw the packages into the water.
On 27 July 2004 the crime scene was examined in the presence of M. Three packages were found. According to the assessment by the experts from the FSB's Institute of Criminology, they were improvised explosive devices, containing plastic-based explosives, an ED-8 electric detonator and metal beads.
On the basis of the above, on 5 August 2004 [the first applicant] was charged in absentia with committing a crime under Article 222, paragraph 2, and put on the wanted list.
During the investigation of the case the investigation body raised doubts as to whether [the first applicant] had really been kidnapped or whether he had initiated his own kidnapping, having learnt that he was sought by the FSB in connection with a serious crime. This version is supported by the information obtained from the Northern Caucasus Department of the Transport Police, according to which the following tickets were used between 1 April and 13 September 2004: Ya. A. Magomadov had travelled from Gudermes to Rostov on 16 May 2004 at 14 hours 30 minutes. The ticket was purchased on 15 May 2004 at 9 hours 11 minutes. In the meantime, his relatives allege that he had left Chechnya on 2 April 2004. In addition, none of the [first applicant's] relatives have applied to the law-enforcement authorities in order to organise a search for him.
Materials relating to the checks carried out by the FSB servicemen at the Magomadovs' house in Kurchaloy on 19 May 2003 and on 29 April 2004 were set aside and forwarded to the military prosecutor of the United Group Alignment (UGA) for a separate investigation on 9 August 2004 (document number 23-1699-04).
Under instructions from the Prosecutor General's Office, on 14 January 2005 the criminal case file no. 44032 was sent by the Moscow Prosecutor's Office to the Chechnya Prosecutor's Office for further investigation. On 3 February 2005 the case file was received by an investigator from that office, who extended the term of the investigation until 5 April 2005. The investigation is under way.”
VIOLATED_ARTICLES: 2
3
5
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-100099
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOPYLOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant was born in 1967 and lives in Lipetsk.
7. On 22 January 2001 at about noon the applicant was arrested and escorted to the Interior Department of the Lipetsk Region. It appears from a report by the arresting police officer that the applicant had been arrested on 22 January 2001 on suspicion of drug trafficking. However, no drug-related charges were ever brought against him. According to the applicant, he was told that he was suspected of murdering a policeman. He denied any involvement.
8. In the evening of the same day the applicant was transferred to Dolgorukovskoe police station, of the Lipetsk Region, where he was beaten up by Mr Gerasimov (the head of the police station) and Mr Abakumov (the head of the Investigations department). According to the applicant, they slapped and kicked him in the head, trunk and solar plexus. They forced him to kneel down in front of a picture of the murdered policeman and to apologise for killing him. They undressed him and threatened to rape him. Mr Gerasimov smacked his hands over the applicant's ears. He lost consciousness and was handed over to the police officers Mr Kondratov and Mr Trubitsyn, who continued the beatings. They tied his hands behind his back with a rope and hung him down, then put a gas-mask on him and blocked the air vent.
9. At about midnight the applicant was placed in a punishment cell at the police station.
10. On 23 January 2001 the applicant was formally detained and questioned. He denied his guilt and signed an undertaking not to leave the town. However, instead of being released, he was again placed in a cell at Dolgorukovskoe police station. It is apparent from the register of detainees at the police station that the applicant was held there from 23 to 26 January 2001.
11. According to the applicant, during his detention at Dolgorukovskoe police station he was repeatedly beaten up by Mr Lukin (the head of the public safety department), Mr Abakumov, Mr Gerasimov and Mr Butsan (a deputy head of the police station). He was also punched by the police officers Mr Kondratov, Mr Trubitsyn, Mr Alyabyev, Mr Panteleyev and Mr Savvin. They slapped and kicked him in the head, back, stomach, kidneys and liver, hit his eyes with their fingers, smacked their hands over his ears and spat at him. They threatened to rape and kill him. They put a gas-mask on him and blocked the vent, and forced him to inhale cigarette smoke.
12. On 26 January 2001 the applicant was formally remanded in custody on suspicion of murder. He was then transferred to Volovskoe police station of the Lipetsk Region, where he remained until 28 January 2001. He was questioned by Mr Shubin, who threatened to beat him up if he did not confess to the murder.
13. On 28 January 2001 the applicant was taken back to Dolgorukovskoe police station. He stated that every day from 28 to 31 January 2001 he had been severely beaten up by the same policemen as before. Mr Alyabyev, Mr Lukin and Mr Kavyrshin administered electric shocks to various parts of his body through wires connected to a dynamo and insisted that he should refuse legal assistance and confess. The applicant lost consciousness several times. An investigator from the prosecutor's office of the Lipetsk Region, Mr Andreyev, witnessed the ill-treatment.
14. On 29 January 2001 the applicant had a talk with Mr Ibiyev, an investigator from the prosecutor's office of the Lipetsk Region in charge of the inquiry into the policeman's murder. Mr Ibiyev allegedly urged him to confess and threatened that beatings would continue until the confession was made.
15. On 30 January 2001 the applicant confessed to the murder and his confession was videotaped. Before the videotaping, the police officer Ms Karavayeva put make-up on his face to conceal the bruises.
16. On 31 January 2001 the applicant was charged with murdering the policeman. He repeated his confession to the investigator Mr Ibiyev. Before being questioned he made a handwritten statement that he did not require legal assistance.
17. On 2 February 2001 the applicant was transferred to detention facility no. YuU-323/T-2 in the town of Yelets in the Lipetsk Region (“the Yelets detention facility”). On that day he had a meeting with counsel retained by his mother. Counsel saw bruises and abrasions on his face and body.
18. From 9 to 17 February and from 29 March to 7 April, the applicant was held at Dolgorukovskoe police station. According to the applicant, he was repeatedly beaten up by the same policemen as before. They tied him up, wrapped him up in a mattress, put him on the floor and jumped on him. They hit his feet with rubber truncheons, punched and kicked him, and smacked their hands over his ears. They pointed a gun at him and threatened to rape him. They put a gas-mask on him and blocked the vent. They also tortured him with electricity.
19. On 16 May 2001 the murder charge against the applicant was dropped because he had retracted his confession and there was no other evidence against him.
20. On 15 January 2002 the Lipetsk Regional Court convicted another person for the policeman's murder.
21. It appears from certificates issued by a deputy head of the Yelets detention facility and by a doctor of the same facility that the applicant arrived there on 5 February 2001. There were bruises around his eyes and crusted abrasions on his wrists. The applicant complained of a headache. He was examined by a neurologist, who found no traces of craniocerebral injury. However, he was given treatment for “a prior craniocerebral injury”, allegedly received in 1984.
22. On 6 February 2001 the applicant was examined by a medical expert, Mr Yermakov. It was recorded in his report that the applicant had bruises around his eyes, a bruise on his trunk, a bruise on his left hip, and crusted abrasions on his wrists. Mr Yermakov found that those injures had been inflicted more than two weeks before. However, he subsequently stated to the investigator that his assessment had been mistaken and that the injuries had in fact been received less than two weeks before the examination.
23. On 21 February 2001 the applicant was diagnosed with otitis (an inflammation of the internal or external ear, usually caused by bacteria or trauma).
24. On 28 February 2001 the applicant was X-rayed. No traces of posttraumatic bone deformation were detected.
25. On 21 March 2001 the applicant was examined by a panel of psychiatrists who concluded that he was mentally sane.
26. The applicant repeatedly complained about aching feet. On 20 April, 20 June and 16 July 2001 a surgeon examined his feet and found no posttraumatic pathology. However, on 13 and 18 June 2006 doctors detected podoedema (swelling of the feet and ankles) and depigmentation of his feet.
27. In June 2001 the applicant was diagnosed with chronic posttraumatic arachnoiditis (pain disorder, caused by the inflammation of one of the membranes of the spinal cord).
28. In June and July 2001 he repeatedly complained about headaches, nausea, dizziness, general weakness and recurring loss of consciousness. A neurologist found that he was suffering from the after-effects of repeated craniocerebral injuries and brain concussion.
29. On 28 August 2001 he was diagnosed with cerebral oedema (an excess accumulation of water in the brain as a result of, among other things, head injury) and post-traumatic deformation of two left ribs.
30. On 1 November 2001 he was examined by a psychiatrist who diagnosed post-traumatic asthenoneurotic syndrome (tics).
31. On 12 February 2002 the applicant was diagnosed with obliterating endoarthritis (inflammation of and damage to bone joints caused by strains or injuries) and neuropathy of the feet (a disease affecting the nervous system caused by infection, repeated trauma or acute trauma).
32. On 18 March 2002 medical experts of the Lipetsk Regional Department of the Ministry of Health returned the following findings on the basis of the applicant's medical records:
- the injuries described in the medical report of 6 February 2001 had been caused 8 to 12 days before the examination of the bruises, and 3 to 7 days before the examination of the abrasions. The injuries could have been inflicted under the circumstances described by the applicant;
- it is not possible to establish with certainty whether the applicant had sustained a craniocerebral injury on 24 January 2001.
33. On 7 May 2002 the applicant was diagnosed with left-side hearing impairment.
34. On 31 May 2002 a panel of psychiatrists of the Lipetsk Regional psychiatric hospital examined the applicant and concluded that prior to the arrest he had been in good health. In the course of the investigation and detention he had developed a post-traumatic stress disorder which took a chronic form. The organic personality change and paranoid personality disorder could have been caused by ill-treatment inflicted on him between 22 January and 1 July 2001.
35. On 29 October 2002 the applicant was examined by a panel of psychiatrists of the Serbskiy State Scientific Institute of Social and Forensic Psychiatry in Moscow. The psychiatrists confirmed the findings of the examination of 31 May 2002 and stated that the applicant's psychiatric disorder had been the result of a brain trauma in April 2001. They recommended that the applicant undergo psychiatric treatment.
36. On the same day the applicant was examined by a surgeon who diagnosed him with post-traumatic arthritis of both feet. A neurologist concluded that he was suffering from the after-effects of repeated craniocerebral injuries and from post-traumatic encephalopathy (a brain disease).
37. It is recorded in a certificate of 22 November 2003 that the applicant was suffering from left-side deafness and right-side hearing impairment.
38. In 2004 the applicant was granted disability status and a pension.
39. According to a certificate of 2 July 2007 by Dr M., the psychiatrist treating the applicant, the applicant still suffers from psychiatric disorders. He visits a psychiatrist twice a month and receives psychoactive drugs in large doses. However, despite the intensive treatment, his psychiatric condition is continuing to deteriorate.
40. On 26 February 2008 a panel of psychiatrists from the Serbskiy State Scientific Institute of Social and Forensic Psychiatry in Moscow found that since 2001 the applicant had been suffering from a post-traumatic paranoid personality disorder. That disorder was so severe and lengthy that it could be defined as chronic. They concluded that he needed in-patient psychiatric treatment.
41. Starting from the beginning of February and until April 2001 the applicant and his counsel filed many complaints about the ill-treatment with the town and regional prosecutors and with the Prosecutor General of the Russian Federation. The applicant described in detail the treatment to which he had been subjected, named the police officers of Dolgorukovskoe police station implicated in the ill-treatment and asked to be examined by a medical expert with a view to noting his injuries. He asked the prosecutor's office to initiate criminal proceedings against the police officers.
42. On 5 June 2001 the applicant's complaints were sent by the prosecutor's office of the Lipetsk Region to the investigator Mr Ibiyev who was asked to carry out a preliminary inquiry. However, the applicant's complaints were subsequently referred to the prosecutor's office of Yelets.
43. The prosecutor's office of Yelets questioned three of the police officers named by the applicant. They testified that the applicant had not been subjected to any ill-treatment. On 6 July 2001 the prosecutor's office of Yelets refused to initiate criminal proceedings against the police officers. That decision was set aside by the prosecutor's office of the Lipetsk Region and an additional inquiry was conducted. In particular, the periods of the applicant's time in Dolgorukovskoe police station were established, several police officers and the investigator Mr Ibiyev were questioned and a medical examination of the applicant was performed.
44. On 14 September 2001 the prosecutor's office of Yelets again refused to initiate criminal proceedings.
45. On 11 October 2001 the prosecutor's office of the Lipetsk Region reversed the decision of 14 September 2001, finding that the inquiry had been incomplete. In particular, the prosecutor's office of Yelets had not established whether the applicant had been in good health before the arrest and whether the arrest had been lawful. It had overlooked the evidence which supported the applicant's allegations of ill-treatment, namely his confession to the murder, later retracted, and the medical report stating his injuries.
46. On the same day the prosecutor's office of the Lipetsk Region opened criminal proceedings against the police officers of Dolgorukovskoe police station. The applicant was granted victim status.
47. On 3 November 2001 two police officers were questioned about the circumstances of the applicant's arrest. It appears that no further action was taken until January 2002.
48. On 23 January 2002 the investigator commissioned a medical examination of the applicant. The examination was performed by experts of the Lipetsk Regional Department of the Ministry of Health on the basis of the applicant's medical documents. It was completed on 18 March 2002. The experts established that the applicant's injuries could have been inflicted under the circumstances described by him.
49. In reply to the applicant's complaints about delays in the investigation, on 12 April 2002 the office of the Prosecutor General ordered that the investigation be sped up.
50. In May 2002 the applicant's cellmates from Dolgorukovskoe police station were questioned. They testified that the applicant had been extremely frightened, complained about ill-treatment, and fainted several times. They had seen marks of beatings on his body.
51. On 4 June 2002 the applicant was questioned about the circumstances of his arrest and ill-treatment.
52. On 11 August 2002 the prosecutor's office of the Lipetsk Region discontinued the criminal proceedings against the police officers of Dolgorukovskoe police station. On 18 October 2002 the office of the Prosecutor General annulled that decision and ordered that the criminal proceedings be resumed.
53. On 24 December 2002 a police officer from the Dolgorukovskoe police station who had escorted the applicant to the questionings in January 2001 stated that he had seen bruises around his eyes.
54. On 9 January 2003 the investigator Mr Ibiyev was questioned. He denied any involvement in the ill-treatment.
55. On 28 April 2003 counsel for the applicant testified that he had represented the applicant since January 2001, that he had not been allowed to visit him until February 2001, and that he had seen marks of beatings on his face and body.
56. On 16 May 2003 the police officers of Dolgorukovskoe police station, Mr Abakumov, Mr Kondratov, Mr Trubitsyn and Mr Lukin, were charged with abuse of office associated with the use of violence and weapons and entailing serious consequences, an offence under Article 286 § 3 (a, b, c) of the Criminal Code.
57. On 16 July 2003 the applicant was questioned for the second time about the ill-treatment.
58. On 28 August 2003 the applicant was informed that the investigation was complete. He was invited to study the case file.
59. The applicant complained to the prosecutor's office of the Lipetsk Region that the scope of the investigation had been insufficient. In particular, the prosecutor's office had not brought charges against the police officers Mr Butsan, Mr Gerasimov and Mr Savvin, who had ill-treated him, and the investigators Mr Andreyev and Mr Ibiyev, who had forged evidence and forced him to confess to the murder.
60. On 28 November 2003 the prosecutor's office of the Lipetsk Region rejected the applicant's complaints, finding that there had not been sufficient evidence for prosecuting Mr Butsan, Mr Gerasimov, and Mr Savvin, and that disciplinary proceedings against Mr Andreyev and Mr Ibiyev had in the meantime become time-barred.
61. On an unspecified date the investigation was resumed and additional enquiries were conducted.
62. On 11 March 2004 an identification parade was held. The applicant identified Ms Karavayeva, who had put make-up on his face before the videotaping of his confession in January 2001.
63. On 18 March 2004 the applicant was taken to Dolgorukovskoe police station where he pointed out the cells in which he had been detained, and the rooms in which he had been beaten.
64. On 25 March and 26 April 2004 further identification parades were held. The applicant recognised Mr Alyabyev and Mr Savvin as the officers who had beaten him and tortured him with electricity.
65. On 7 and 13 April 2004 further interviews with the applicant were held.
66. On 29 and 30 April and 5 May 2004 Mr Kondratov, Mr Abakumov, Mr Panteleyev, Mr Alyabyev, Mr Kovyrshin, Mr Butsan, Mr Lukin, Mr Trubitsyn, Mr Savvin and Mr Gerasimov were charged with abuse of office associated with the use of violence and weapons and entailing serious consequences, an offence under Article 286 § 3 (a, b, c) of the Criminal Code.
67. On 31 May 2004 the applicant was informed that the investigation had been completed and was invited to study the case file. However, on an unspecified date the investigation was resumed.
68. On 15 September 2004 a deputy Prosecutor General of the Russian Federation ordered that the investigation be continued until 10 January 2005.
69. The applicant challenged before a court the refusal by the prosecutor's office of the Lipetsk Region to bring charges against the investigators from that prosecutor's office, Mr Andreyev and Mr Ibiyev, who had unlawfully arrested him, forged evidence against him and forced him to confess, and against the medical expert Mr Yermakov, who had examined him on 6 February 2001 and had falsely stated that his injuries had been inflicted prior to the arrest.
70. On 9 November 2004 the Lipetsk Regional Court rejected the applicant's complaints in the final instance. It held that an internal inquiry had been conducted and that no grounds for prosecuting Mr Andreyev, Mr Ibiyev or Mr Yermakov had been established.
71. On 18 February 2005 the criminal case against the police officers of Dolgorukovskoe police station was committed for trial before the Yelets Town Court of the Lipetsk Region.
72. The trial started on 28 March 2005. The defendants pleaded not guilty and refused to testify.
73. The trial court heard the applicant and numerous witnesses and examined medical evidence.
74. On 28 December 2007 the Yelets Town Court convicted the defendants as charged. It found it to be established that between 22 January and 7 April 2001 the defendants had repeatedly ill-treated the applicant by punching and kicking him and hitting his heels with truncheons, by subjecting him to electric shocks, by putting a gas-mask on him and closing the air vent or forcing him to inhale cigarette smoke through the vent, by tying his hands behind his back and suspending him in the air by means of a rope, by jumping on his chest and stomach, by pointing their guns at him and threatening to shoot him, by strangling him, by threatening to rape him, by spitting at him and by forcing him to undress and kneel in front of a photograph of the policeman of whose murder he had been suspected and apologise for killing him. The use of force had been aimed at driving the applicant into submission and making him confess to criminal offences. As a result of the ill-treatment the applicant had received the following injuries: numerous bruises and abrasions, a rib fracture, a deformation of the left shoulder-blade and feet trauma ultimately resulting in polyarthritis with degenerative-dystrophic changes and functional impairment in both feet. Moreover, the applicant had developed a chronic post-traumatic psychiatric disorder as a consequence of the ill-treatment. The court sentenced the defendants to imprisonment ranging from four years to five years and eight months with a subsequent three-year prohibition on serving in law-enforcement agencies. On the same day the defendants were taken into custody.
75. On 2 June 2008 the Lipetsk Regional Court upheld the conviction on appeal but decided to commute the sentences. It noted that some of the defendants had been awarded medals for excellent police service and that all of them had positive references from their superiors. The court therefore considered that it was possible to give them sentences below the statutory minimum. It sentenced six defendants to imprisonment ranging from two years and six months to three years and three months. The remaining four defendants were sentenced to imprisonment ranging from one year and six months to two years and six months, but their sentences were suspended and they were placed on probation for two years. Those four defendants were immediately released.
76. In 2005 the applicant and his mother sued the Ministry of Finance, the Interior Ministry, and the police officers of Dolgorukovskoe police station for compensation in respect of pecuniary and non-pecuniary damage caused by the applicant's ill-treatment. They claimed 15,000,000 Russian roubles (RUB) in respect of non-pecuniary damage and RUB 207,559 in respect of pecuniary damage. The claim for pecuniary damage included the costs of the applicant's medical treatment and of the food brought to the detention facility by his mother, as well as travel and postal expenses and legal fees.
77. On 6 October 2008 the Sovetskiy District Court of Lipetsk allowed the claim in part. The court noted that the fact of the applicant's ill-treatment by the police officers of Dolgorukovskoe police station had been established by the final judgment in the criminal proceedings against those officers. In particular, it had been established that between 22 January and 7 April 2001 the applicant had been repeatedly subjected to severe beatings and electric shocks, gas-mask torture, hanging in the air by means of a rope attached to the wrists, and threats of rape and murder, and had been spat at and forced to apologise on his knees for killing a policeman. As a result of the ill-treatment he had suffered considerable pain and humiliation, had received serious injuries, in particular rib fracture and deformation of his feet, and had developed a chronic psychiatric disorder. His health had been seriously undermined and he had become disabled. He had moreover been forced to confess to a crime which he had not committed. The court found that the applicant had been subjected to ill-treatment contrary to Article 3 of the Convention and awarded him compensation in respect of non-pecuniary damage in the amount of RUB 450,000 (about 12,500 euros (EUR)) against the Ministry of Finance. It found that the applicant's mother had also suffered distress and frustration as a result of her son's ill-treatment and awarded her RUB 35,000 against the Ministry of Finance. It further awarded the applicant's mother RUB 573.88 (about EUR 16) in respect of medical expenses. It however rejected the remainder of the claim for pecuniary damage as it had not been supported by documents.
78. On 17 November 2008 the Lipetsk Regional Court examined the case on appeal. It found that the amount awarded to the applicant in compensation had been adequate, given the very serious injuries he had sustained as a result of the ill-treatment, and in particular, brain oedema, post-traumatic displacement of two ribs, post-traumatic hearing impairment, deformation of both feet and shoulder-blade deformation, as well as posttraumatic encephalopathy (general brain dysfunction) and psychiatric disorder. It also upheld the award of the medical expenses. It however quashed the award in respect of non-pecuniary damage to the applicant's mother, finding that she had not personally suffered any ill-treatment.
79. On 28 March 2001 the applicant was charged with robbery. On 26 September 2001 additional charges of several counts of robbery, theft and unlawful possession of firearms were brought against him.
80. On 12 April 2002 the Lipetsk Regional Court ordered the applicant's in-patient psychiatric examination. On 31 May 2002 a panel of psychiatrists of the Lipetsk Regional psychiatric hospital found that the applicant was suffering from post-traumatic stress disorder. In view of his medical condition, his participation in the court hearings was considered inadvisable. The applicant needed in-patient psychiatric treatment.
81. On 27 June 2002 the applicant and four co-defendants were escorted to the Lipetsk Regional Court for a hearing. After the defendants refused to go into the courtroom, the presiding judge ordered that they be brought in by force. The defendants were informed of the judge's order and agreed to proceed to the courtroom. They were handcuffed and started to mount the stairs.
82. It appears from the reports of the escorts that on the stairs one of the defendants, Mr P., suddenly ran in the direction of the toilets, while the other defendants attacked the escorts. The escorts beat the defendants with rubber truncheons and managed to suppress the attack and to bring the defendants into the courtroom.
83. According to the applicant's mother, she and the relatives of the other defendants were waiting in the hall for the beginning of the hearing. She saw the escorts hitting the applicant and his co-defendants with truncheons while they were mounting the stairs. The applicant fell on the handrail and one of the escorts slapped and kicked him many times. The applicant fainted. He was dragged by the escorts across the floor into the cage inside the courtroom. She called an ambulance.
84. The ambulance doctors examined the applicant and concluded that he had had an epileptic fit. He was taken to Lipetsk hospital no. 4 for treatment.
85. It can be seen from a certificate issued on the same day by the head of Lipetsk hospital no. 4 that the diagnosis of an epileptic fit was confirmed by the hospital doctors, who also detected hyperemia (a medical condition in which blood congests in part of the body) of the applicant's neck.
86. The applicant was handcuffed to a hospital bed in the corridor. On the next day he was transferred back to the detention facility, the doctors' objections notwithstanding.
87. On 17 January 2003 the Lipetsk Regional Court ordered the applicant's confinement to a psychiatric hospital. On 31 January 2003 he was transferred to the Lipetsk Regional psychiatric hospital.
88. On 28 April 2003 the Lipetsk Regional Court found the applicant guilty of several counts of aggravated theft and robbery, decided not to sentence him because of his mental incapacity and ordered his compulsory psychiatric treatment.
89. On 26 November 2003 the Supreme Court of the Russian Federation upheld the judgment on appeal.
90. On 25 March 2004 the Gryazi Town Court of the Lipetsk Region ordered that in-patient psychiatric treatment be replaced by out-patient psychiatric supervision. On 29 March 2004 the applicant was released from hospital.
91. On 1 July 2002 the applicant's mother asked the prosecutor's office of the Sovetskiy District of Lipetsk to initiate criminal proceedings against the escorts who had beaten the applicant and his co-defendants in the courthouse on 27 June 2002.
92. The prosecutor's office conducted an inquiry. Eight escorts, the applicant's mother, one of the applicant's co-defendants and several eyewitnesses were heard. The presiding judge refused to testify.
93. The applicant's co-defendant Mr Sh. testified that the defendants had refused to go into the courtroom because the applicant and another defendant were unwell and the escorts had refused to call a doctor. They had moreover asked to see their relatives. Once the relatives had been let into the courthouse the defendants had agreed to proceed to the courtroom. As they mounted the stairs they had seen that some of their relatives were absent, so they turned around with the intention of descending back into the basement. At that moment the escorts had started to hit them with rubber truncheons and had driven them into the courtroom.
94. The defendants' relatives all testified that the escorts had hit the applicant and his co-defendants, handcuffed in twos, while they were mounting the stairs.
95. The escorts submitted that after the defendants' refusal to go into the courtroom, the judge had ordered that they be brought in by force. The defendants had been handcuffed and ordered to proceed to the courtroom. On the stairs they had suddenly turned round and attacked the escorts. The escorts had used rubber truncheons against them. The defendants had been forced into the courtroom where the applicant had had an epileptic fit. An ambulance had been called and he had been taken to hospital.
96. On 15 July 2002 the prosecutor's office of the Sovetskiy District of Lipetsk refused to open criminal proceedings against the escorts. In his decision the prosecutor referred to the witness statements collected during the inquiry and found that the applicant and his co-defendants had not complied with the legitimate order of the escorts. He concluded that the force had been used by the escorts in compliance with the Police and Custody Acts. In any event, the applicant and his co-defendants had not received any injuries.
97. The applicant challenged the decision before a court. In particular, he submitted that, contrary to the prosecutor's assertions, he had sustained injuries and had been taken to hospital. He also argued that the inquiry had been incomplete, as many eyewitnesses had not been questioned.
98. On 22 September 2004 the Sovetskiy District Court of Lipetsk held that the prosecutor's decision had been lawful. It found that the inquiry had been adequate as it had allowed the prosecutor to collect the necessary evidence and to make a reasoned decision.
99. On 19 October 2004 the Lipetsk Regional Court upheld the decision on appeal.
100. Abuse of office associated with the use of violence and weapons and entailing serious consequences carries a punishment of three to ten years' imprisonment and a prohibition on occupying certain positions for up to three years (Article 286 § 3 (a,b,c) of the Criminal Code).
101. Until 1 July 2002 the investigation of criminal offences was governed by the RSFSR Code of Criminal Procedure of 27 October 1960 (the “old CCrP”). It established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities' own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation and could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation (Articles 210 and 211). If there were no grounds for initiating or continuing a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be served on the interested party. The decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (Articles 113 and 209).
102. The Code of Criminal Procedure of the Russian Federation in force since 1 July 2002 (Law no. 174-FZ of 18 December 2001, the “CCrP”), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days of receiving such complaint, the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to appeal to a higher-ranking prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. Article 125 of the CCrP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court.
103. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen must be fully compensated for by the tortfeasor. Pursuant to Article 1069, a State agency or a State official is liable towards a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury. Articles 151 and 10991101 of the Civil Code provide for compensation for nonpecuniary damage. Article 1099 states, in particular, that non-pecuniary damage must be compensated for irrespective of any award for pecuniary damage.
104. The Police Act (no. 1026-1 of 18 April 1991) provides that Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act. A police officer must warn of his intention to use physical force, special equipment or a weapon and give the person concerned sufficient time to comply with his order, except in cases where the delay in using physical force, special equipment or a weapon creates an immediate danger for the life and health of citizens and police officers, is likely to cause other serious consequences or where the warning is impossible or impracticable in the circumstances. Police officers must endeavour to minimise the damage caused by the use of physical force, special equipment or a weapon, to the extent possible depending on the nature and seriousness of the offence, the dangerousness of the person who has committed it and the degree of resistance offered. Police officers must also ensure that individuals who have been injured as a result of the use of physical force, special equipment or a weapon receive medical assistance (section 12).
105. Police officers may use physical force, including martial arts, to stop a criminal or administrative offence being committed, arrest persons who have committed a criminal or administrative offence or overcome resistance to a lawful order, if non-violent methods are insufficient to ensure discharge of the police duties (section 13)
106. Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including rubber truncheons, handcuffs and firearms, may be used. In particular, rubber truncheons may be used to repel an attack on civilians or police officers, to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting the operation of transport, means of communication and legal entities. Handcuffs may be used only to overcome resistance to a police officer, to arrest an individual caught while committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations as well as to transport them and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers.
107. The Custody Act (no. 103-FZ of 15 July 1995) provides that physical force may by used against a suspect or an accused to prevent commission of an offence or to overcome resistance to lawful orders, if those aims cannot be attained by non-violent methods (section 44).
108. Rubber truncheons and handcuffs may be used in the following cases:
- to repel an attack on a staff member of a detention facility or on other persons;
- to repress mass disorder or put an end to collective violations of the detention rules and regulations;
- to put an end to a refusal to comply with lawful orders of the facility's administration and warders;
- to release hostages and liberate buildings, rooms and vehicles taken over by a detainee;
- to prevent an escape;
- to prevent a detainee from hurting himself (section 45).
VIOLATED_ARTICLES: 3


ITEMID: 001-72786
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: WITZSCH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Hans-Jürgen Witzsch, a German national, was born in 1939 and when introducing the application lived in Fürth.
In an article published in a German weekly review on 30 September 1999 a well-known historian, Professor Wolffson (thereafter “W.”) made inter alia the following statements:
“(...) Hitler wanted the murder of the Jews. He ordered it and certainly knew about it. Although he had not given a written order, there is evidence that he had given oral orders on several occasions. The murder of the Jews was wanted and organised from above and by NS-activists from the bottom (...).”
In a letter of 3 December 1999 the applicant wrote to Professor Wolffson in reply to this article:
“(...) Your statements which are false and historically unsustainable shall not stand unanswered (...).
It is actually established that there is no indication in party programs of the National Socialist German Workers’ Party, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei), that the NSDAP and Hitler intended to murder the Jews. Anybody who – with all the means at his disposal – fostered the emigration of the Jewish minority until late after the beginning of the Second World War can hardly be said to have prepared the murder of the Jews. A long time ago, the historian Irving has publicly proposed to pay a thousand pounds to any person who could prove that Hitler had ordered, for racial reasons, the murder of one single Jew. So far, nobody has produced evidence. After the war, tens of thousands of totally immaculate officials of the NSDAP have attested on oath not to have known until the end of the war about the murder of Jews. None of the dignitaries of the German Government accused in Nuremberg admitted to have known about the mass murder of Jews. Not even in their closing words under the gallows! (...)
The normalisation of the relation between Germans and Jews depends on the will to historical truth and requires not only that one party is blamed for the responsibility it admits but also that the other party refrains from suppressing its negative contribution to history (...). Last but not least, the normalisation requires the Jews’ clear distancing from the war and post-war atrocity propaganda (Kriegs- und Nachkriegsgreuelpropaganda) against Germany, directly or indirectly concerning the Jews.
You, Professor Wolffsohn, would highly contribute to this if you would abandon the false or questionable statements against Germany and seriously endeavour to become acquainted with the actual academic discourse of contemporary history.”
On 15 December 1999 W. submitted this letter to the police. On 6 April 2000 he explicitly refused to lodge an application for prosecution (Strafantrag - see “Relevant domestic law and practice” below).
On 21 June 2000 a police officer informed H. – whose grandparents had died in a concentration camp – about the letter and its content. On the same day, the latter lodged an application for prosecution.
On 27 July 2001 the Fürth District Court (Amtsgericht) convicted the applicant of disparaging the dignity of the deceased pursuant to Section 189 of the German Criminal Code (see “Relevant domestic law and practice” below) and sentenced him to three months’ imprisonment. With reference to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), it recalled that it was historically proven that the mass killing of Jews in concentration camps was planned and organised by Hitler and the NSDAP. Accordingly, no evidence in this respect had to be adduced, as requested by the applicant. Although the applicant had not denied the Holocaust as such, his denial of Hitler’s and the NSDAP’s responsibility in this respect was tantamount to a negative value judgment (negatives Werturteil). He had thereby denied the victims’ extremely cruel and unique fate and accordingly disparaged the dignity of the deceased. Furthermore, as the pertinent passages of the applicant’s letter did not express an opinion but had to be categorised as allegations of facts which had been proven untrue, they did not fall within the ambit of Article 5 § 1 of the German Basic Law which protects the freedom of opinion. Given their polemic nature, they neither fell within the ambit of Article 5 § 3 of the German Basic Law which protects the freedom of research. In fixing the sentence, the court took into account that the applicant had been convicted in 1995 and 1996 respectively of disparaging the dignity of the deceased for denying the existence of gas chambers and that the letter at issue had been written during the probationary period.
On 28 January 2002 the Nürnberg-Fürth Regional Court (Landgericht) dismissed the appeals lodged by the applicant and the Public Prosecutor. According to the Regional Court, it was not contested that the applicant had written and sent the letter to W. It further noted that a valid request for prosecution had been filed with the public prosecutor. Although W. had not lodged himself a request for prosecution, the circumstance that he had transferred the applicant’s letter to the police showed that he had not considered its contents as unoffending.
The Regional Court considered that the extermination of the Jews in gas chambers is a clearly established historical fact. It is also common knowledge that Hitler had wanted and initiated the murder of the Jews in Germany and that the NSDAP had planned and organised the systematic extermination of Jewish people. It was therefore not necessary to adduce the requested evidence. The applicant’s allegations that none of the accused dignitaries of the German Government in the Nuremberg Trials had known of the extermination of the Jews, was absurd and monstrous and offended the Jews murdered by the Nazis. The applicant’s statement that the opinion expressed by W. was part of the war propaganda and after-war atrocity propaganda combined with the denial of Hitler’s and the national Socialists’ responsibility in the extermination of the Jews showed the applicant’s disdain towards the Jews, the principal victims of the systematic extermination. The court concluded that statements concerning facts which had been proven untrue were not protected by Article 5 of the German Basic Law.
On 10 July 2002 the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) dismissed the applicant’s appeal on points of law as not disclosing any legal errors to the detriment of the applicant.
On 28 November 2002 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint.
The applicant was represented by defence counsel throughout the proceedings.
Section 189 of the Criminal Code provides as follows:
“Anybody disparaging the dignity of the deceased shall be punishable with imprisonment not exceeding two years or with a fine.”
Section 194 of the Criminal Code determines that, with few exceptions, such an offence can only be prosecuted upon application by a relative of the victim of the offence.
In 1992 the Federal Constitutional Court established that the denial of the existence of gas chambers was an allegation of facts which had been proven untrue and that this allegation can be prohibited on account of their offending nature. In 1996 the Bavarian Court of Appeal confirmed that the denial of the existence of gas chambers was punishable under Section 189 of the Criminal Code.


ITEMID: 001-70241
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF VASYAGIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1932 and lives in Moscow. He is retired.
5. On 5 October 1993 the applicant bought a motorbike, produced in Belarus. The motorbike was sold by a Russian dealer company under a service warranty. The next day the motorbike got out of order. The service centre, indicated by the dealer company, refused to repair the motorbike.
6. On 2 December 1993 the applicant brought an action against four defendants: the dealer company, the factory having produced the motorbike, based in Belarus, the service centre, and the Moscow Bureau of Technical Expertise. On 4 October 1994 the Meshchanskiy District Court of Moscow ordered the dealer company to pay damages to the applicant. The defendant appealed. On 28 March 1995 the Moscow City Court quashed the judgment and remitted the case to the first instance court.
7. In 1995-1997 hearings were adjourned on five occasions due to both parties’ failure to appear, on two occasions – due to the defendant’s failure to appear, and on six occasions – because of the judge having been busy with other cases. Finally, on 12 November 1997 the Meshchanskiy District Court severed the applicant’s claims against the service centre. At the same time the court dismissed the applicant’s claims against the dealer company. On 12 January 1998 the Moscow City Court upheld this judgment. The proceedings against the service centre continued.
8. In the proceedings against the service centre no hearings were held between 12 January 1998 and 12 April 1999. In the following months the examination of the case was adjourned on three occasions due to the defendant’s failure to appear.
9. By a default judgment of 20 December 1999 the Meshchanskiy District Court held against the service centre awarding the applicant damages in the amount of 261,690 Russian roubles (RUR). Since no appeal followed within the time-limits established by law, on 31 December 1999 the judgment became final. The court issued an execution warrant and opened the enforcement proceedings.
10. On 6 February 2000 the defendant lodged an appeal seeking, inter alia, to restore the time-limits allowed for the appeal. On 9 March 2003 the court decided to restore the time-limits and accepted the statement of appeal for examination on the merits. In the meantime RUR 30,267 were recovered from the service centre on the account of the amount due to the applicant under the judgment of 20 December 1999.
11. By the decision of 18 May 2000 the Moscow City Court quashed the judgment of 20 December 1999, stating that the first instance court had failed to properly notify the defendant about the hearings. The case was remitted to the first instance court for new examination.
12. By a judgment of 20 June 2000 the Meshchanskiy District Court dismissed the applicant’s action against the service centre. The court also ordered the applicant to reimburse the amount recovered from the service centre pursuant to the judgment of 20 December 1999.
13. On 26 July 2000 the Public Prosecutor of the Meshchanskiy District of Moscow lodged with the Moscow City Court an appeal on behalf of the applicant. On 12 September 2000 the Moscow City Court quashed the decision of 20 June 2000 and remitted the case to the first instance.
14. After the remittal of the case, the proceedings were stayed for a certain period of time. Within this period higher judicial authorities were examining the materials of the case-file for the purpose of bringing a supervisory review appeal against the decision of 12 September 2000. However, no supervisory review proceedings followed.
15. The first hearing on the merits was scheduled for 2 October 2001. However, on this date the court decided to adjourn the case for two months due to the plaintiff’s failure to appear. In the subsequent months the examination of the case was adjourned on six occasions due to the defendants’ failure to appear or the absence either of the presiding judge (adjourned from 27 November 2001 until 29 January 2002) or the lay judges (adjourned from 20 May 2002 until 26 June 2002).
16. In a letter of 7 February 2001, the Vice-President of the Moscow City Court informed the President of the Meshchanskiy District Court that the applicant’s claim against the producer factory remained unresolved since 1995.
17. On 3 October 2002 the first instance court, by a default judgment, satisfied the applicant’s claim against the producer factory and rejected his claim against the dealer company.
18. The producer factory appealed against this judgment. On 28 January 2003 the Moscow City Court quashed the judgment of 3 October 2002 and remitted the case to the first instance.
19. In the following months the case was adjourned several times. Thus, on 16 April 2003 the case was adjourned due to the defendant’s failure to appear. On 1 July 2003 the court adjourned the case, ordering the plaintiff (the applicant) to clarify his claims, in particular, to indicate the amounts of damages claimed from each defendant. On 4 August 2003 the case was adjourned because of the judge having been busy with another case.
20. In August 2003 the applicant complained about the length of proceedings to the Moscow City Court. In a reply letter of 30 September 2003 the Vice-President of the Moscow City Court acknowledged that since 1993 the dispute remained unresolved. The Vice-President reassured the applicant that the Moscow City Court would take charge of this case.
21. On 3 September 2003 the applicant requested the court to adjourn the next hearing because of his absence from Moscow at the relevant dates. On 29 September 2003 the case was adjourned until 31 October 2003.
22. On 31 October 2003 the first instance court dismissed the applicant’s complaints against the service centre and the producer factory. The court found that, although the name and address of the service centre had been indicated by the dealer company in the guarantee slip, there existed no contract imposing an obligation on the service centre to repair defective goods sold by the dealer company. As to the producer factory, based in Belarus, the court found that under the applicable Belarus law the producer could not have been held liable directly before the consumer of the goods. On 20 February 2004 the Moscow City Court upheld this decision.
23. Article 282 of the Code of Civil Procedure of 1964 (in force at the material time) provides that the first instance court decision on the merits of the case can be appealed against (обжалованы в кассационном порядке) by the parties or other participants of the proceedings.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1