TSECHOYEV v. RUSSIA

 
Communicated on 3 June 2019
 
THIRD SECTION
Application no. 52270/10
Zurab Savarbekovich TSECHOYEV
against Russia
lodged on 3 September 2010
STATEMENT OF FACTS
The applicant, Mr Zurab Savarbekovich Tsechoyev, is a Russian national, who was born in 1963 and lives in Bordeaux. He is represented before the Court by the Memorial Human Rights Centre, an NGO based in Moscow.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Background information
At the time of the events, the applicant lived in village Troitskaya in the Republic of Ingushetia and was an employee of non-profit organisation “Human Rights Organisation MASHR”.
In March 2004 the applicant’s brother, Mr Tamerlan Tsechoyev and Mr Rashid Ozdoyev, assistant prosecutor, were abducted in Ingushetia allegedly by officers of the Ingushetia Federal Security Service (“the FSB”) (see Ozdoyev and Tsechoyev v. Russia, no. 9782/08, communicated on 23 September 2016).
On unspecified date website “I” published a list of names of 13 FSB officers who had allegedly participated in abductions and murders of Ingushetia residents, including the name of officer R.S. accused by the applicant of having participated in his brother’s abduction in 2004.
2.  The applicant’s apprehension and release
On 25 July 2008 around 6.00 a.m. about 50 armed men who had arrived on three APCs and three white Gazel minibuses surrounded the applicant’s household. According to the applicant, the men were Ingushetia FSB officers. The officers, armed with submachine guns and equipped with radio, were wearing camouflage uniforms, helmets and shields.
The applicant voluntarily went out of the house and opened the gate. The officers immediately knocked him to the ground and hit twice with a gun butt on his head. One of the officers asked his name and when the applicant replied, another officer said: “That is him who we need”. They spoke unaccented Russian.
The officers searched the house for fifteen minutes holding the applicant’s wife and children at gunpoint. He was not allowed to talk to his wife or to make a phone call. The officers took a computer, two mobile phones and jewellery.
After the search, the officers put the applicant in one of the APCs. He saw through the windows that they were driving on federal highway “Kavkaz” in the direction of Magas for 20-25 minutes. When the vehicle stopped, they took the applicant into a spacious underground garage. He was placed in an empty cell. Shortly after, four men in camouflage and masks entered and demanded that the applicant confess to having sent a list of names of the FSB officers to the website “I”. The applicant denied. The officers then put a plastic bag over his head and repeatedly punched and kicked him in his back, knees and in the heart area. When the beatings stopped, they asked the applicant in details about his work, in particular, about his colleagues, the origin of funds and his other incomes.
Then the officers tied the applicant’s hands behind his back and again beat him, from time to time strangling until he almost lost consciousness. He was repeatedly asked about the publication of the list.
According to the applicant, the officers started to threaten him with rape by a shovel stick since the applicant refused to admit. They brought a stick and started to undress the applicant.
At some point, at someone’s command all officers left the cell. In about twenty minutes two officers, who did not participate in his ill-treatment, entered the cell. They told him that they would return his computer and mobile phones and asked him to sign a document that he had no complaints against the officers. After the applicant agreed, a plastic bag was removed from his head and hands untied. The applicant signed a blank document and wrote that he had not sent a list to the website. His belongings were then returned to him.
Then four officers, who had ill-treated the applicant, entered the cell. They told him to quit his work and leave Ingushetia and not to complain to the prosecution office. They threatened that if he complained, they would kill all his family members, including children.
After they had put again a plastic bag over his head and tied his hands, they placed him in a civil vehicle. They had driven for five minutes before they stopped on the road on the outskirts of Magas. The officers untied the applicant’s hands, returned his computer and mobile phones. They released him reminding not to complain.
The applicant called his colleague, Mr M.M., who then took the applicant to the Nazran office of the Memorial human rights centre where his injuries were photographed. He was then taken to the hospital in Nazran where he stayed until 23 August 2008.
3.  Investigation into the applicant’s apprehension and ill-treatment
(a)  Opening of a criminal case into abuse of official authority
On 25 July 2008 the applicant’s wife, Ms S.K., complained about his abduction to the prosecutor’s office of the Sunzhenskiy District of Ingushetia.
On 29 July 2008 the Sunzhenskiy Investigation Department in the Republic of Ingushetia opened criminal case no. 08600087 into the abuse of official authority with the use of violence under Article 286 § 3 (a) of the Criminal Code of Russia (“the CC”).
On 30 July 2008 the investigator ordered the applicant’s forensic medical examination. On 14 August 2008 forensic expert O. issued act no. 363. This act list of injuries with which the applicant was admitted to the hospital on 25 July 2008, namely swelling and subcutaneous hematoma on the left hand, abrasions on the face, subcutaneous hematoma on the left breast, bruises of soft tissues of the middle and lower right thigh, vast subcutaneous hematoma, pain in the left knee joint as well as other bruises on his upper eyelid, front surface of the upper left shoulder, back surface of the left chest, lumbar left area, back surface of the upper tight, back surface of the neck. The expert concluded that the injuries had been caused with the use of hard blunt object shortly before the applicant was admitted to the hospital, possibly as described by the applicant. They were qualified as injuries of moderate harm.
According to the undated extract of the applicant’s medical card no. 9767, he has been under treatment in hospital between 25 July and 23 August 2008. According to the extract, he had been diagnosed with a closed craniocerebral injury, brain contusion of first degree, distortion of the cervical spine, closed fracture of the left lower leg condyle.
On 6 August 2008 the applicant was granted victim status.
On 11 August 2008 the applicant requested investigator G. to provide him with copies of the decision to open a criminal case, decision to grant victim status, copy of the forensic medical act, victim and witnesses’ interview records as well as other relevant documents related to investigation activities. It is unclear whether the applicant was provided with all requested documents.
On 5 September 2008 the prosecutor wrote that in the course of investigation requests were sent to law-enforcement bodies of the Republic inquiring whether a special operation was conducted in Troitskaya on 25 July 2008 and that no reply from the bodies was received.
On 12 October 2008 the investigator granted the applicant’s and his lawyer’s request to conduct on-site verification in the area where the applicant had been dropped off and to inspect a basement of the building of the Ingushetia FSB department (“УФСБ РФ по Республике Ингушетия”).
On 26 November 2008 the applicant’s lawyer, Mr M.G-E., requested the Head of the Sunzhenskiy Investigation Department to conduct on-site verification and inspect the FSB basement. He also requested to open a criminal case into the applicant’s abduction under Article 126 of the CC and intrusion into his home under Article 139 of the CC.
(b)  Suspension of the criminal case and subsequent transfer of the case
On 29 November 2008 the criminal case was suspended for failure to identify perpetrators.
On 4 December 2008 the decision on suspension was quashed. On 4 January 2009 acting investigator F. of the Sunzhenskiy Investigation Department issued a decision to suspend the criminal case for failure to identify perpetrators.
On 14 January 2009 the applicant received a letter from the investigative department notifying about the refusal to open a criminal case into his abduction and intrusion into his house.
On 16 January 2009 the decision of 4 January 2009 was set aside.
On the same day the investigator issued a decision to transfer the criminal case to the Head of the Sunzhenskiy Investigation Department for its further transfer to the jurisdiction of the military investigative department of military unit no. 68799.
The decision contained the applicant’s statements, as well as witness statements of the applicant’s wife, Ms S.K. and their neighbour, Ms M.Ts., who confirmed the applicant’s account of his arrest. Nine more neighbours were also questioned and also submitted that on 25 July 2008 armed men in camouflage who had arrived on APCs had searched the applicant’s house. The applicant’s house was inspected and on-site verification was carried out in the area where the applicant had been dropped off. Requests to provide information about affiliation of persons who had conducted the search have been sent to the Ingushetia FSB department and Ministry of Internal Affairs of Ingushetia. The law-enforcement bodies replied that no special operations had been carried out on that date.
The decision further referred to the conclusions of the forensic medical examination and to the witness statements of M.M. who had taken the applicant to Nazran. Several road police officers who were on-duty on highway “Kavkaz” on 24 and 25 July 2008 were questioned. They did not remember whether three APCs and minibuses had passed through checkpoints.
The investigator concluded that it was confirmed by the case materials that FSB officers had searched the applicant’s house and that they had used physical violence against him in the building of the Ingushetia FSB. The case was to be therefore transferred to the military investigative department.
(c)  Refusals to open a criminal case
On 16 February 2009 the military investigative department of the military unit 68799 received criminal case no. 34/01/0017-09Д.
On 13 March 2009 the Deputy Head of the Military Investigative Department issued a decision not to open a criminal case. The decision contained the applicant’s statements who reiterated his previous submissions. Head of the Ingushetia FSB, Mr B., was questioned as a witness. He submitted that on 25 July 2008 the Ingushetia FSB officers had carried out operative search activities in the village of Mayskiy in the Prigorodny district in North Ossetia and not in Troitskaya. He also stated that the FSB had interest neither in the applicant nor in his family members. B. further submitted that special operations carried out by the Ingushetia FSB were aimed at arrest of members of illegal armed groups, that such investigative measures were documented by relevant records, that the building of FBS department did not have special rooms for detention of arrested persons. In case of arrest, a person was to be transported to district police department or, if necessary, questioned in visitors’ room in the FBS premises.
The investigator also questioned as witnesses the Head of the FSB unit against terrorism (“ЗКСиБТ Управления ФСБ РФ по РИ”) Lieutenant Colonel K., the Head of the Ingushetia FSB subdivision Major Ch., the Head of Operative Headquarter of Ingushetia FSB, Colonel K. and two other heads of different structures of FSB in Ingushetia. They all reiterated statements of B.
In the light of the foregoing, the investigator concluded that the Ingushetia FSB officers had not carried out special operation in the applicant’s house, that they had not apprehended the applicant and had not ill-treated him. He found that the applicant’s arguments were of probabilistic nature and were not confirmed during the investigation.
4.  Court proceedings
(a)  Complaint about inaction of the investigative authorities
On 5 August 2009 the applicant lodged a complaint with the Sunzhenskiy District Court about inactivity of investigative authorities. He argued, among other things, that involvement of FSB officers was confirmed by the fact that they had arrived on APCs, that he had been dropped off at about five minute drive from the FSB premises in Magas. He complained that FSB administration in Ingushetia had not authorised to inspect their building.
On 14 August 2009 the District Court dismissed the applicant’s complaint.
On 29 September 2009 the Supreme Court rejected the applicant’s appeal finding that, contrary to his arguments, the investigative authorities had taken steps aimed at identification of perpetrators.
(b)  Proceedings before the military courts
On 25 October 2009 the applicant appealed against the decision of 13 March 2009 to the Nalchik Garrison Military Court. The applicant reiterated his arguments that he had raised before the District Court.
On 4 December 2009 the military court rejected his appeal as unsubstantiated mainly referring to the witness statements of the Heads of FSB structures. The court found that the request to inspect the FSB premises had been examined and the Deputy Head of the Department refused its inspection due to a special regime of the building on account of the number of classified materials present there. The court further noted that on 13 March 2009 the criminal case was transferred to the Sunzhenskiy Investigation Department where it was pending to date. The court reiterated that FSB officers had not participated in the applicant’s apprehension and ill-treatment.
On 25 December 2009 the applicant appealed against the decision of the military court to the North Caucasus Military Circuit Court, reiterating among other things, that FSB premises had not been inspected. He also referred to the decision of 16 January 2009 in which the investigative authorities had established that FSB officers had searched his house and ill‑treated him.
On 4 March 2010 the court held that the applicant’s version of his ill‑treatment was based only on his assumptions. It further referred to the statements of the heads of Ingushetia FSB. As to the inspection of the building the court held that the argument was pointless since the applicant had not asked to inspect the premises while the military investigative department had investigated the criminal case. The court found that the applicant provided insufficient information about perpetrators and that the criminal case had been transferred to the investigative department which allowed widening the field of search. The court accordingly dismissed the appeal.
B.  Relevant domestic law and practice
For the relevant provisions of domestic law, see Ryabtsev v. Russia (no. 13642/06, §§ 48-52, 14 November 2013).
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment at the hands of the FSB officers and that no effective investigation was carried out in that regard.
He complains under Article 5 § 1 of the Convention about his unrecorded detention on 25 July 2008.
The applicant also complains under Article 8 of the Convention about unlawful search in his house.
Finally the applicant complains under Article 13 of the Convention that he had no effective remedy in respect of his complaints under Articles 3, 5 and 8 of the Convention.
QUESTIONS TO THE PARTIES
1.  Has the applicant been subjected to torture, inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention? Having regard to the procedural protection from torture, inhuman and degrading treatment and punishment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
 
2.  Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
 
3.  Has there been an interference with the applicant’s right to respect for his home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and was it necessary in terms of Article 8 § 2?
 
4.  Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 3, 5 and 8, as required by Article 13 of the Convention?

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