Communicated on 2 July 2020 Published on 20 July 2020

THIRD SECTION

Application no. 64941/09 Timerlan Magomed-Gireyevich ASPIYEV and others against Russia lodged on 9 December 2009

STATEMENT OF FACTS

A list of the applicants is set out in the Appendix. The applicants are Russian nationals. They are represented before the Court by the Memorial Human Rights Centre, an NGO based in Moscow.

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Background information

On 27 July 2007 at 9.40 p.m. unidentified persons shelled the building of the Ingushetia Federal Security Service (“the FSB”) in the city of Magas. One military officer was killed as a result of the attack. According to the authorities ’ information, the perpetrators had hid in the village of Ali-Yurt in Ingushetia.

B. The events of 28 July 2007

On 28 July 2007 at around 4 a.m. a group of federal military officers arrived in Ali-Yurt on armoured personnel carriers (“APCs”) and two Gazel minibus vehicles without registration numbers.

The officers broke into the applicants ’ and other residents ’ houses, pulling people out and beating them with gun butts. For the description of the applicants ’ alleged ill-treatment, see the Appendix.

According to the applicants, around 30 residents, including women, minors and elderly people, were subjected to ill-treatment by the military. Around 19 people were taken to the Nazran Central Hospital. Two persons were admitted to Moscow hospitals.

On 28 July 2007 an investigator of the Department of the Interior in the Nazranovskiy District of Ingushetia reported to his superior about the discovery of the evidence of crime (“ рапорт об обнаружении признаков преступления ” ). According to the report, the applicants and a number of other residents had been admitted to the hospital with various injuries. The description of the applicants ’ injuries is contained in the Appendix.

C. Investigation into the events

1. Investigation by the Prosecution Office of Ingushetia

On 30 July 2007 the applicants and other residents lodged a collective complaint with the Prosecution Office of the Nazranovskiy District.

On 3 September 2007 a senior investigator for particularly serious cases of the Ingushetia Prosecution Office opened criminal case no. 07500035 into abuse of power with the use of violence under Article 286 § 3 of the Criminal Code (“the CC”) of Russia.

On unspecified dates, the applicants were granted victim status. It is unclear whether Mr Tanzila Esmurziyeva , Mr Issa Batsayev and Mr Ibragim Yevloyev were granted victim status.

On 18 March 2008 the investigator transferred the criminal case to a military prosecutor of the North Caucasus Military Circuit. According to the decision, following the attack on the FSB building on 27 July 2007, the head of the Ingushetia FSB issued a decision of 28 July 2007 to conduct a counterterrorist operation in Ali-Yurt. From 0.20 a.m. on 28 July 2007 and up until the end of the operation, special measures had been applied in the village, in particular, identity check-ups and traffic restrictions.

According to the witness statements of Mr Ya ., head of the police in the Nazranovskiy District, on 28 July 2008 at 4 a.m. he received a call from an on-duty officer in the district who had informed him that unidentified armed law-enforcement officers in masks were beating the residents of Ali ‑ Yurt. When Ya . and other police officers arrived in the village, the law ‑ enforcement officers in masks and camouflage uniforms without insignia stopped them at the entry to the village. The law-enforcement officers spoke unaccented Russian, insulting the police officers using foul language.

According to the police officers of the operational regiment of the Department of the Interior, on 28 July 2007 at 4 a.m. they received an order to arrive in Ali-Yurt. When they approached the crossroad near the village, they were stopped by armed law-enforcement officers in masks and uniforms without insignia. They did not let the police officers enter the village. They explained that the FSB officers were carrying out a special operation in Ali-Yurt. According to the police officers, at 4.30 a.m. a convoy of military vehicles, in particular, URAL vehicles, three Gazel vehicles without registration numbers, APCs without registration numbers moved in the direction of Ali-Yurt. At 6 a.m. the same military vehicles left Ali-Yurt and moved in the direction of Magas. At 7 a.m. the police officers were allowed to enter the village.

Other witnesses, in particular the Ingushetia Minister of the Interior and heads of the various departments of the Ministry of the Interior gave similar statements.

The investigator concluded that on 28 July 2007 between 4 and 6 a.m. the Ingushetia FSB officers had carried out a special operation at Zyazikova Street in Ali-Yurt, during which they had inflicted light bodily injuries to the residents of the village. The case was therefore to be investigated by the military investigation department.

2. Investigation by the military investigation departments

On 28 April 2008 the criminal case was admitted to the investigation department of military unit no. 68799 and assigned no. 34/01/0053 ‑ 08 Д .

On 9 September 2008 a senior investigator of the military unit issued a decision to transfer the criminal case to the head of the investigation department for a decision on jurisdiction. The copy of the decision as submitted to the Court is partly illegible and its last two pages are missing. According to its extracts, the special operation had been carried out by the officers of military unit no. 3718, special police forces (OMON), the Temporary Operational Troops of the Ministry of the Interior in Ingushetia (“ Временная оперативная группировка МВД РФ в РИ ” ), the United Group Alignment in the Northern Caucasus (“ Объединенная группировка войск ( сил ) ” ) and the Ingushetia FSB.

On an unspecified date the applicants lodged a complaint under Article 125 of the Code of Criminal Procedure (“the CCrP ”) with the Pyatigorsk Garrison Military Court against the decision on the transfer of the case.

(a) First set of proceedings

On 18 February 2009 the Pyatigorsk Garrison Military Court dismissed the complaint as unfounded.

On 14 May 2009 the North Caucasus Circuit Military Court quashed the court decision finding that the copy of the decision of 9 September 2008 examined by the court was lacking three pages, in particular, those pages that contained the reasoning for the transfer of the criminal case. It remitted the case for a new examination to the Pyatigorsk Garrison Military Court.

(b) Second set of proceedings

On 25 June 2009 the Pyatigorsk Garrison Military Court discontinued the proceedings finding that the applicants ’ complaint was not subject to examination under Article 125 of the CCrP .

On 7 August 2009 the applicants appealed against the court decision.

On 22 October 2009 the North Caucasus Circuit Military Court examined the applicants ’ appeal on the merits and dismissed it. It found that it had not been established that military officers had participated in the special operation in Ali-Yurt. It had been established that officers of the Temporary Operational Group of the Ingushetia Ministry of the Interior and Inter-Municipal department of the Ingushetia Ministry of the Interior (“ Межмуниципалитетный отдел МВД России по РИ ”), who were not military officers, had carried out the operation. The criminal case was therefore to be investigated by civil investigators.

3. Suspension of the criminal case

Meanwhile, on 6 December 2008 the special cases investigator of the Nazranovskiy Inter-District Investigation Department suspended the investigation into criminal case no. 07500035 for the failure to identify perpetrators.

On 4 and 10 August 2009 the applicants challenged the decision before the Nazran District Court.

On 26 August 2009 the court declared the decision on suspension of the criminal case unlawful. The court found that the investigation authorities had sufficient information about the operation conducted in Ali-Yurt, however, they had failed to identify perpetrators, to carry out cross ‑ examination of witnesses and identification parades.

On 25 October 2009 a new decision suspending the investigation was issued. The relevant part of the decision reads as follows:

“...

... requests for information had been sent and replied had been obtained.

Forensic medical examinations of the victims aimed at determination of severity level of injuries had been conducted.

By the carried out set of measures it was not possible to solve the crime.

...”

D. Relevant domestic law and practice

For the relevant provisions of domestic law, see Razzakov v. Russia , no. 57519/09 , § § 42-44 , 5 February 2015.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by law-enforcement officers and that the investigation into their alleged ill-treatment was ineffective.

2. They also complain under Article 13 of the Convention that they did not have an effective remedy in respect of their complaint under Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1 . Were applicants Ms Tanzila Esmurziyeva , Mr Issa Batsayev and Mr Ibragim Yevloyev granted victim status in criminal case no. 07500035? Have they exhausted domestic remedies in respect to their complaint under Article 3 of the Convention, as required by Article 35 § 1 of the Convention?

2 . a) Have the applicants been subjected to torture, or inhuman or degrading treatment, in breach of Article 3 of the Convention (see, among other authorities, Razzakov v. Russia , no. 57519/09, 5 February 2015; Gorshchuk v. Russia , no. 31316/09, 6 October 2015; Turbylev v. Russia , no. 4722/09, 6 October 2015; Fartushin v. Russia , no. 38887/09, 8 October 2015; Aleksandr Andreyev v. Russia , no. 2281/06, 23 February 2016; and Leonid Petrov v. Russia , no. 52783/08, 11 October 2016)?

b) In particular, have the authorities discharged their burden of proof by providing a plausible or satisfactory and convincing explanation of how the applicants ’ injuries were caused (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII and Bouyid v. Belgium [GC], no. 23380/09, § 83 and further, ECHR 2015)?

3 . Did the authorities carry out an effective investigation, in compliance with the procedural obligation under Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV)?

4 . Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3, as required by Article 13 of the Convention?

5 . The parties are requested to provide copies of medical evidence (for example, ambulance notes, forensic medical examination acts or other similar documents) of alleged injuries of Mr Vakha Dobriyev , Mr Khuseyn Nalgiyev , Mr Magomet Nalgiyev , Mr Umalat Nalgiyev , Ms Aset Nalgiyeva , Mr Akramat Tatriyev , Mr Isa Tsoroyev , Mr Yusup Tsoroyev , Mr Ibragim Yevloyev , Mr Yahya Yevloyev .

6 . The applicants are requested to check their personal details in the Appendix (spelling of names, dates of birth, c ircumstances of the alleged ill ‑ treatment, description of alleged injuries, etc.), and inform the Court about any corrections, changes or updates to be made. Mr Magomed Belanovich Yevloyev (applicant no. 19) is requested to provide a copy of his passport.

APPENDIX

No.

First name

Middle name

Last Name

Birth date

(also as submitted in the documents)

Place of residence

Circumstances of the alleged ill-treatment

Medical evidence (from the report on the discovery of evidence of crime of 28/07/2007)

Victim status in national proceedings

1Timerlan

Magomed-Gireyevich

ASPIYEV

1991Ali-Yurt

At 7 a.m. 30-35 armed men in camouflage entered his household; he was beaten with gun butts

Contusion of his chest, closed craniocerebral injury, brain concussion, multiple abrasions

Yes

2Magomed-Girey Belanovich ASPIYEV

1962Ali-Yurt

At 7 a.m. 30-35 armed men in camouflage forced him to lie on the ground; he was beaten through a bulletproof vest

Contusion of his chest, soft tissues and his right kidney

Yes

3Issa Tuganovich BATSAYEV

1956Ali-Yurt

At 6 a.m. a group of armed men in camouflage checked his identity documents; on the way to his neighbours a group of other armed men forced him to lie on the ground; he was punched and kicked

Contusion of his chest, heart pain syndrome, hospitalised to the emergency department

Unclear

4Vakha Kureshovich DOBRIYEV

1961Ali-Yurt

At 5.15 a.m. a group of armed men in camouflage entered his courtyard, insulting him, hit with gun butts

No information

Yes

5Batyr Yakhyayevich DZEYTOV

1965Ali-Yurt

At 6 a.m. a group of armed men in camouflage entered the house, hit him with gun butts; taken to the hospital

Contusion of his chest and soft tissues of the body

Yes

6Tanzila Akhmedovna ESMURZIYEVA

1978Nasyr-Kortskiy District

At 6 a.m. a group of armed men in camouflage entered the courtyard, strangled and slapped her; caused preterm delivery

Preterm delivery, marks of beatings, hospitalised

Unclear

7Khuseyn Khasanovich NALGIYEV

1942Ali-Yurt

At 4.30 a.m. a group of 7-8 armed men in camouflage entered the courtyard, insulted him, forced to lie on the ground, then pushed him against a wall

No information

Yes

8Magomet Abukarovich NALGIYEV

1950Ali-Yurt

At 4.15 a.m. two armed men in camouflage forced him to lie on the ground, insulted him, hit several times with legs; allegedly examined by the ambulance

No information

Yes

9Ramazan Yusupovich NALGIYEV

1927Ali-Yurt

At 5 a.m. four armed men in camouflage hit him on the street with gun butts for about 30 minutes

Contusion of his chest, muscle tissues, kidneys, bladder and stomach blunt injury

Yes

10Umalat Magometovich NALGIYEV

1987Ali-Yurt

At 4.15 a.m. a group of armed men in camouflage forced him to lie on the ground, insulted him; allegedly examined by the ambulance

No information

Yes

11Aset Muradovna NALGIYEVA

1962Ali-Yurt

At 4.30 a.m. a group of armed men in camouflage entered the courtyard, hit her ear with a gun butt

No information

Yes

12Akramat Temirkhanovich TATRIYEV

1991Ali-Yurt

At 5.30 a.m. a group of around 20 armed men in camouflage entered his courtyard, forced him to lie on the ground, hit all over his body, particularly, in kidney area; allegedly examined in the hospital

No information

Yes

13Temirkhan Kureyshevich TATRIYEV

1965Ali-Yurt

At 5.30 a.m. a group of 4-5 armed men broke into his house, hit his head, beat all over his body

Contusion of his chest

Yes

14Isa Akhmet-Aliyevich TSOROYEV

1965Ali-Yurt

At 5 a.m. a group of armed men in camouflage entered the courtyard, forced to lie on the ground; hit with gun butts

No information

Yes

15Yusup Akhmet-Aliyevich TSOROYEV

1969Ali-Yurt

At 6 a.m. a group of armed men; beaten with gun butts, twisted left leg

No information

Yes

16Magomet Inalkovich TSUROYEV

1953Ali-Yurt

At 5 a.m. a group of 4-5 armed men in camouflage stopped his car, hit him with gun butts for 20 minutes

Contusion of his chest and soft tissues of the body

Yes

17Ibragim Magometovich YEVLOYEV

1982Ali-Yurt

At 5 a.m. a group of 7-8 armed men in camouflage entered his house, hit him with gun butts

No information

Unclear

18Isa Khasanovich YEVLOYEV

1973Ali-Yurt

At 5.15 a.m. a group of armed men in camouflage entered the courtyard, hit all over the body

Bruises on soft tissues of the body and blunt stomach injury

Yes

19Magomed Belanovich YEVLOYEV

Unclear 1982 or

1942Ali-Yurt

At 5.20 a.m. a group of armed men in camouflage entered his courtyard, hit him with gun butts and legs; examined in the hospital, alleged brain concussion

Contusion of his chest and soft tissues of the body

Yes

20Magomet Khusenovich YEVLOYEV

1954Ali-Yurt

At 5.20 a.m. a group of armed men in camouflage entered his house, hit him with gun butts for 20 minutes

Contusion of his chest, left shoulder joint and right scapula

Yes

21Musa Sultanovich YEVLOYEV

1974Ali-Yurt

At 6 a.m. a group of 5-6 armed men in camouflage, kicked

Bruises and abrasions on his nose, blunt stomach injury, contusion of his chest

Yes

22Muslim Sultanovich YEVLOYEV

1971Ali-Yurt

At 6 a.m. a group of armed men in camouflage entered the courtyard, kicked

Contusion of his chest and soft tissues of the body

Yes

23Umar Makhmutovich YEVLOYEV

1986Ali-Yurt

At 5 a.m. a group of armed men in camouflage pulled him from the house, beaten with gun butts; taken to the hospital for two days

Rip of his right arm biceps

Yes

24Yahya Magometovich YEVLOYEV

1960Ali-Yurt

At 5 a.m. a group of 5-6 armed men in camouflage, kicked

No information

Yes

25Zalimkhan Sultanovich YEVLOYEV

1967Ali-Yurt

At 6 a.m. three armed men in camouflage pulled him from the house, forced to lie on the ground, kicked and punched; allegedly taken to the hospital, left leg injured

No information

Yes

26Rukiyat Dalambekovna YEVLOYEVA

1952Ali-Yurt

At 5 a.m. a group of armed men in camouflage pulled her from the house, hit her head with a gun butt

Contusion of his chest and soft tissues of the body

Yes