ABDULKADYROVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27180/03
by Nurzhan Supyanovna ABDULKADYROVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 24 January 2008 as a Chamber composed of:

Christos Rozakis, President,
Loukis Loucaides,
Nina Vajić,
Anatoli Kovler,
Elisabeth Steiner,
Sverre Erik Jebens,
Giorgio Malinverni, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 20 July 2003,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

(1) Mrs Nurzhan Supyanovna Abdulkadyrova, born in 1973;

(2) Mr Shamkhan Ayndayevich Dzhabayev, born in 1995;

(3) Mr Zumrat Ayndayevich Dzhabayev, born in 1993;

(4) Mrs Kheda Ayndayevna Dzhabayeva, born in 1991.

The applicants are Russian nationals and live in Urus-Martan, Chechnya. They are represented before the Court by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Arrest and detention of Ayndi Dzhabayev

The first applicant is the wife of Ayndi Aliyevich Dzhabayev, born in 1967. The second, third and fourth applicants are their children. The first applicant is a librarian by profession, but is currently unemployed. The sole breadwinner of the family was her husband Ayndi Dzhabayev, who worked as a bricklayer in a construction company.

The applicants live in their own house at 26 Krasnoarmeyskaya Street in the town of Urus-Martan. At this address there are three houses, sharing a common courtyard. Two other houses are occupied by their relatives. One house is occupied by Said-Magomed D., his wife Fatima (also called Petimat) A. and their two daughters, who were six and three years old in September 2002.

There is a direct passage between their courtyard and the house of their neighbours who live at 28 Krasnoarmeyskaya Street.

On 8 September 2002 the first applicant had been at the market since early morning. Her three children – the second, third and fourth applicants – were at home with their father, Ayndi Dzhabayev, who was ill. The applicants’ presentation of the events related to Ayndi Dzhabayev’s detention is based on statements by the third and fourth applicants, Fatima A. and two neighbours, Roza P. and Kheda A., who were eyewitnesses to these events.

According to these statements, on 8 September 2002 at about midday, a group of military servicemen in several armed personnel carriers (APCs) surrounded the house at 28 Krasnoarmeyskaya Street, next door to the applicants’ house. The second, third and fourth applicants were playing in the street outside their house. When the military arrived, they went into their house, together with their friend Kh.

At house no. 28 there was an exchange of automatic gunfire. The first applicant’s sister-in-law, Fatima A., and her two children ran into the first applicant’s house. The shooting in the neighbouring house lasted for about five to ten minutes. When it stopped, Fatima A. went over to her house with her younger daughter.

Then a serviceman broke down the door which separated the applicants’ courtyard from the courtyard of their neighbours at no. 28 and entered their courtyard. The serviceman was wearing a balaclava and was armed with an automatic weapon. He shouted in Russian: “Everybody out in the street, bitches!”

Fatima A. ran into the street with her daughter. She was scared to return for the other children and called them from the street to come out. The second and fourth applicants heard the shouting and immediately went outside. Their father Ayndi Dzhabayev told them to go outside, while he was dressing and looking for his passport. The third applicant was late coming out of the house. While in the courtyard he heard the serviceman ordering someone “Hands on the wall, animal!” He turned back and saw the military aiming the gun at his father, who quickly walked to the wall and put his hands up. He had not had time to put on his shoes. The serviceman walked up to Ayndi Dzhabayev. The third applicant was scared to remain and went out into the street.

Then Fatima A. realised that her elder daughter had remained inside the house and asked the fourth applicant to go and get her. When the fourth applicant entered the courtyard it was empty and her father and the servicemen had gone. She picked up her cousin from the house and they went to join the rest of the family at the house of their neighbour Kheda A. There they were joined by a neighbour from 29 Krasnoarmeyskaya Street, Roza P., who had similarly been ordered to leave her house by the Russian servicemen.

Then the applicants heard shooting at the house no. 28 and then at their own house. They submitted that it had not been an exchange of fire, because there had been only one machine-gun firing and the soldiers standing in the street had not reacted to it and had remained calm.

At around 3 p.m. the servicemen gathered in the street in front of house no. 28 where the initial shooting had broken out. The soldiers laughed and said that they had killed one fighter (“boyevik”) and another one had run away. At about 3.30 p.m. the head of the town administration and the head of the Urus-Martan district administration arrived. Both men talked to the senior officers among the military. Then the local residents started to come out of their houses and approach the military.

Witnesses Roza P. and Kheda A. submitted that they had seen a lot of military vehicles in the streets, including APCs and Ural trucks. Some of the servicemen had gone to the office of the district military commander, located about 300 metres from the applicants’ house.

Fatima A. with her children and the second, third and fourth applicants returned to their house. Ayndi Dzhabayev was not there. Inside the house everything had been turned upside down, and things had been thrown out of wardrobes. The furniture and clothes were covered with bullet holes and there were a lot of cartridges from automatic weapons scattered on the floor. In the vegetable patch behind the house were the tracks of an APC.

Roza P. walked up to the heads of the town and district administrations and asked them where Ayndi Dzhabayev was. The men replied that no one had been detained.

Roza P. and Kheda A. were among the local residents in front of no. 28 Krasnoarmeyskaya Street. They testified that the gates of the house had been opened and they could see that inside there had been a minibus and an Ural military truck. Under the fence-roof they had seen the body of a man (“the fighter”) who had been killed there during the shooting. Several servicemen put the body on a blanket and carried it to the minibus. In the crowd there was the wife of Magomed A., the owner of no. 28, who had apparently been sought by the military. She identified the man killed as a friend of Magomed’s, while Magomed himself had escaped.

The first applicant returned home at about 4 p.m. By that time the military had left. Her eldest daughter, the fourth applicant, told her that they had been forced out of the house by the military, and when they returned their father had no longer been there. The first applicant found the walls and furniture covered with bullet holes. She went into the vegetable patch behind the house and noted APC tracks which led towards the buildings of the Urus-Martan District Administration, the district military commander’s office and the premises of a former clothes factory, which at the time was being used to house a military unit. In the passage between their house and no. 28 the applicant found a pack of “Karsil” medicine, used by her husband, who had a liver problem. In the courtyard she found his cigarettes and cigarette holder. She also found his shoes on the porch of the house and concluded that her husband had been taken away barefoot.

On the same day the first applicant went to the town administration, but found it already closed and returned home.

On the same day at about 6 p.m. a group of about 30 servicemen again arrived at 28 Krasnoarmeyskaya Street in three APCs and one UAZ vehicle. Seven or eight men were wearing masks, the rest were without masks. A large group of servicemen entered no. 28 and probably conducted a search there. Then the military searched the vegetable patches. When the first applicant asked what they were looking for, they said that they were looking for weapons.

Then the military wanted to search the third house in the applicants’ courtyard which belonged to their relatives. The first applicant asked them not to break the door down and they waited for her to fetch the key. She explained that the house belonged to their relatives who lived in another region and the military searched it. They did not show any papers to the applicants.

The first applicant talked to one of the servicemen and said that earlier on the same day her husband had been driven away by the military. One serviceman who was not wearing a mask told her that if her husband was not guilty of anything, he would be released. Another serviceman told her that they had not detained anyone. When the applicant insisted, he told her that the operation earlier that day had been carried out by other servicemen and that they had come only to carry out the search. They refused to answer any more questions and left after about half an hour.

The first applicant submitted that later that day officers from the District Prosecutor’s Office had questioned her neighbours at no. 28. No one came to the applicants’ house to question them or their relatives.

The applicants have had no news of their husband and father Ayndi Dzhabayev since that day.

The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 8 September 2002 at about 12.30 p.m. unidentified armed men wearing camouflage uniforms had entered the applicants’ house, destroyed some property and taken Ayndi Dzhabayev away to an unknown destination. His whereabouts could not be established.

2. Search and investigation into the “disappearance”

The first applicant began searching for her husband on 9 September 2002. She applied to various official bodies, both in person and in writing, trying to find out the whereabouts and the fate of Ayndi Dzhabayev. The first applicant also travelled around Chechnya when she heard of unidentified bodies being found, hoping to find him.

In the morning of 9 September 2002 the first applicant visited the local military commander’s office, the Department of the Interior and the district prosecutor’s office. Everywhere she was told that they did not know who had detained her husband or where he was.

The applicants received hardly any substantive information about the fate of their husband and father or about the investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to different prosecutors’ services. They submitted these documents to the Court, and they can be summarised as follows.

On 9 September 2002 the first applicant submitted a written application to the Urus-Martan District Prosecutor’s Office. Her application was registered under no. 1755 and the applicant was informed that it had been assigned to investigator L. The applicant stressed that at that time in their house cartridges from the automatic weapons were still lying around and the tracks of the APC were still visible behind the house.

On 10 September 2002 the applicant submitted an application to the local military commander, to the head of the district administration, and to the Office of the Special Envoy of the Russian President for rights in freedoms in Chechnya. She also wrote to the NGO Memorial Human Rights Centre.

For several days afterwards the first applicant visited all the law-enforcement and military offices in the district. Everywhere the officers denied that her husband had been detained and that they had been responsible for the operation on 8 September 2002.

On 18 September 2002 the applicant managed for the first time to meet investigator L. of the District Prosecutor’s Office, who showed her a plan of her neighbours’ house at 28 Krasnoarmeyskaya Street and asked in which room her husband had been detained. The first applicant realised that the investigator had information that Ayndi Dzhabayev had been detained at their neighbours’ house, and not at theirs. The first applicant tried to persuade him otherwise, but the investigator insisted that at the moment of detention Ayndi Dzhabayev had been in no. 28. Then the investigator asked her about her neighbours. The investigator told her that he would call her if there was a need for further statements. He did not take any other actions, such as examining the applicant’s house or questioning the neighbours and relatives.

On 23 September 2002 the district newspaper Marsho published an article called ‘Police should work’, where the Urus-Martan district military commander was quoted as saying that there had been a “combat action” in Krasnoarmeyskaya Street, as a result of which one man who had mounted active resistance had been killed and his body had been transferred to the district administration.

On 4 October 2002 the Chechnya Prosecutor’s Office forwarded the first applicant’s complaint to the Urus-Martan District Prosecutor’s Office.

On 7 October 2002 the first applicant again visited the District Prosecutor’s Office and found out that her application of 9 September 2002 had been lost, though the registration number existed. The investigator who was responsible for her case had been discharged from work, and he had failed to take any action on her complaint.

On 8 October 2002 the applicant again submitted an application to the district prosecutor. She stated that her husband had been detained by military servicemen on 8 September 2002 during a special operation, which had been reported in a local newspaper. She also referred to the killing of an unknown young man during the operation and the involvement of a large group of servicemen and military vehicles. The applicant asked the prosecutor to inform her of the progress of the investigation and to grant her victim status in the proceedings.

On 11 October 2002 the applicant was told at the District Prosecutor’s Office that her complaint had been forwarded by that office to the district department of the interior (ROVD). The applicant submitted that this decision had been unlawful, because investigations in criminal cases concerning kidnapping should be conducted by the prosecutor’s office. She also submitted that it was only one month later that she had managed to see the officer at the ROVD who was responsible for her case. That officer questioned her and the fourth applicant, and then returned the case to the Urus-Martan District Prosecutor’s Office.

On 16 October 2002 the first applicant wrote to the Head of the Urus-Martan Town administration and to the district military commander, asking for assistance in finding her husband, who had disappeared after being detained.

On 4 November 2002 the first applicant addressed the Urus-Martan District Prosecutor, asking for help in finding her husband and complaining of inactivity of the investigation.

On 6 November 2002 the Chechnya Prosecutor’s Office forwarded the first applicant’s complaint to the District Prosecutor’s Office of Urus-Martan.

On 7 November 2002 the first applicant submitted detailed complaints to the Russian President, to the Prosecutor General and to the Chairwoman of the Presidential Commission on Human Rights. She stated the known details of her husband’s detention and her attempts to obtain an investigation. She complained that the prosecutors had failed to question the witnesses and her children, to examine the site or to collect evidence.

On 15 November 2002 the Chechnya Prosecutor’s Office forwarded the applicant’s complaint to the Urus-Martan District Prosecutor’s Office and requested them to inform that office of the progress of the proceedings.

On 20 November 2002 an investigator of the District Prosecutor’s Office informed the first applicant that on 20 November 2002 they had opened criminal investigation file no. 61152 into the kidnapping of Ayndi Dzhabayev, which had occurred on 8 September 2002 in Urus-Martan.

On 29 January 2003 the Directorate of the General Prosecutor’s Office for the Southern Federal Circuit forwarded the first applicant’s complaint to the Chechnya Prosecutor’s Office.

On 3 March 2002 the first applicant applied to the Urus-Martan District Court, complaining about the actions of the district military commander. She stated that the special operation on 8 September 2002 had been carried out by the military who reported to the local military commander. She requested the court to order the military commander to disclose information concerning her husband’s whereabouts and reasons for detention, to grant him access to a lawyer and to allow him to challenge the lawfulness of detention. This complaint has not been heard.

On 14 March 2003 the Chechnya Prosecutor’s Office forwarded the applicant’s complaint to the Urus-Martan District Prosecutor’s Office and requested that office to inform them of the progress in the proceedings.

On 15 April 2003 the first applicant again applied to the Urus-Martan District Court, complaining about the actions of the district prosecutor’s office. She requested the court to oblige the prosecutor’s office to carry out an investigation of her complaint concerning the detention and disappearance of her husband and to take a number of actions, such as to grant her victim status, to question her children, sister-in-law and neighbours about the events of 8 September 2002, to collect the bullets and cartridges from her house, and to identify and question those responsible for the operation. The applicant also requested the court to calculate the amount of damage caused to her property and identify those responsible. The applicant received no answer to this complaint.

On 14 May 2003 the Urus-Martan District Prosecutor’s Office replied to the first applicant and stated that the investigator responsible for the case at the initial stage had been dismissed for negligence. Within the proceedings of criminal case no. 61152 the first applicant, her children and other witnesses had been questioned. The question of damage to her property should be resolved by court. The question of the examination of the site and collection of evidence could be resolved only if there was an agreement of all residents of the household and if the evidence of the crime, such as bullets and cartridges, was still present.

On 15 May 2003 the applicant, during one of her visits to the District Prosecutor’s Office, received from an investigator a copy of the document in the case file which, as he told her, proved that her husband had been detained by the military. The “administrative report” was drawn up by the Urus-Martan military commander Colonel G. on 8 September 2002. The document stated:

“I, the military commander of the Urus-Martan district Colonel G., on 8 September 2002 carried out an administrative investigation concerning the wounding of a serviceman of the military commander’s office, senior assistant to the head of the intelligence unit Captain I. The investigation established:

On 8 September 2002 an operation was carried out under the command of Colonel G. in order to check the operative information in Urus-Martan, on the crossroads of Krasnoarmeyskaya and Budyennogo Streets. At 10.10 a.m. at 28 Krasnoarmeyskaya Street, during the inspection of the premises, bandits who were staying there mounted armed resistance. During the battle engagement a serviceman of the special forces of the Interior Troops was wounded. Upon the order of Colonel G. the district was cordoned off by the servicemen of the commander’s company, the district FSB [Federal Security Service] and the Ministry of the Interior.

During the continuation of the special operation at 11.55 a.m., as a result of exchange of fire, Captain I. received a firearm wound to the head. ... During the special operation two members of the ILG [illegal armed groups] were killed, and arms and ammunition were seized. ...The wounding of Captain I. was brought to the attention of the Urus-Martan district prosecutor.”

On 19 June 2003 the Chechnya Prosecutor’s Office ordered the Urus-Martan District Prosecutor’s Office to check the first applicant’s submissions that her husband had been detained by the officers of the FSB during a special operation aimed at detention of their neighbour, A. The letter referred to her statements that during the special operation A. had wounded two officers of the FSB and then escaped. The FSB officers had then carried out unlawful searches in the neighbouring houses and detained Ayndi Dzhabayev at his house, after which he had disappeared. The prosecutor ordered to investigate the applicant’s statements about the involvement of the FSB, to identify her husband’s whereabouts, to decide if the case should be forwarded to the military prosecutor for further investigation and to inform the applicant and the Chechnya Prosecutor’s Office of the progress of the case.

On 5 August 2003 the first applicant wrote to the Chechnya Prosecutor and complained about the failure of the investigation to act. She referred to the publication of 23 September 2002 and to the administrative report of 8 September 2002, copies of which she attached to the letter. The applicant suggested that only one “fighter” had been killed on 8 September 2002 and that the military had taken away her husband and later killed him in order to “boost” the figures. She stressed that the military had only released one body for burial, and that the name of the second person killed had not been disclosed. The applicant requested the prosecutor to question Colonel G., who had been in command of the operation on 8 September 2002, to identify the second person who had been killed on that day, to find out his place of burial, to transfer the case to the military prosecutor’s office, and to inform her of the results of the investigation.

On 22 August 2003 the applicant was granted victim status in criminal case no. 61152. The order stated that the investigation had established that “on 8 September 2002 at about 12.30 p.m. unknown persons armed with automatic weapons and wearing masks entered a private household at 26 Krasnoarmeyskaya Street, Urus-Martan, kidnapped Ayndi Dzhabayev, born in 1967, destroyed his property and left in the direction of the Urus-Martan district military commander’s office”.

It appears that some time in the summer of 2003 an investigator visited the applicants’ home and collected bullets from the bullet holes in the walls of their house. The applicants were not aware whether a ballistic study had been carried out on them and if so, what results it had produced.

On 1 September 2003 the Chechnya Prosecutor’s Office wrote to the first applicant that on 20 January 2003 the investigation of the criminal case no. 61152 into the kidnapping of her husband had been adjourned due to failure to identify the culprits. After an additional review by the Chechnya Prosecutor’s Office, on 21 August 2003 that decision had been quashed and the case was forwarded for additional investigation to the Urus-Martan District Prosecutor’s Office.

On 24 September 2003 the first applicant again complained to the Chechnya Prosecutor’s Office that the local prosecutor had failed to act. She asked him to identify and question the servicemen who had participated in the special operation of 8 September 2002, to question Colonel G., to identify the place of burial of the second member of the ILG killed on that day, to collect bullets and cartridges from her home and to examine the site, and to question her neighbours. The applicant received no response, and on 8 December 2003 again wrote to the Chechnya Prosecutor’s Office and asked him to oblige the local Prosecutor’s office to carry out the investigative actions as listed in her letters.

On 1 October 2003 the Urus-Martan District Court, upon the first applicant’s request, declared her husband Ayndi Dzhabayev a missing person, starting from 8 September 2002. The court took into account statements by two eyewitnesses about Dzhabayev’s detention by unknown persons dressed in camouflage and the first applicant’s statement that she had had no news of her husband ever since.

On 19 December 2003 the District Prosecutor’s Office informed the first applicant that the investigation in criminal case no. 61152, opened on 20 November 2002 under Article 126 part 1 of the Criminal Code into the kidnapping of Dzhabayev had been resumed on 19 November 2003. On 19 December 2003 it had again been adjourned for failure to identify the culprits. The applicant was informed of the possibility of appeal to a prosecutor or to a court.

On 5 January 2004 the Urus-Martan District Prosecutor’s Office informed the first applicant that the investigation had been resumed on 5 January 2004.

On 7 January 2004 the Chechnya Prosecutor’s Office informed the first applicant that the investigation into the kidnapping of her husband by unknown persons was pending with the District Prosecutor’s Office in Urus-Martan, where she should address her questions.

On 19 April 2004 the first applicant wrote to the Urus-Martan District Prosecutor’s Office that she had been granted victim status in criminal case no. 61152 concerning the kidnapping of her husband. She asked them to inform her of the progress and results of the investigation and to tell her if the investigative actions requested by her had been taken.

On 21 May 2004 the Chechnya Prosecutor’s Office again replied to the first applicant that she should address her questions about the investigation to the District Prosecutor’s Office in Urus-Martan.

On 29 May 2004 the Urus-Martan ROVD issued a note, based on the neighbours’ statements, which described Ayndi Dzhabayev as a respectable member of the community who had no problems with the law.

On 29 December 2005 the first applicant requested the Urus-Martan District Prosecutor’s Office to grant her access to case file no. 61152 concerning her husband’s kidnapping, as a victim.

On 2 March 2006 the investigator of the prosecutor’s office replied to the first applicant that she had no right to review the file while the proceedings were pending. Under Article 42 of the Criminal Procedural Code she could only review the documents relating to the investigative steps carried out with her participation.

On 21 March 2006 the first applicant applied to the Urus-Martan District Court with a request to declare her husband dead. These proceedings are still pending.

3. Information submitted by the Government about the investigation

In reply to the Court’s requests, the Government submitted the following information concerning the progress of the investigation.

On 20 November 2002 the Urus-Martan District Prosecutor’s Office instituted criminal investigation no. 61152 into the kidnapping of Mr Ayndi Dzhabayev.

On 21 November 2002 the investigation questioned the third and fourth applicants, who stated that on 8 September 2002 they had heard shooting in the street, and that soon afterwards their father had been taken away by armed persons.

Similar statements had been given by the relatives and neighbours, including the first applicant and Fatima A., both questioned on 25 November 2002.

On 20 January 2003 the investigation was adjourned due to failure to identify the culprits.

On 21 August 2003 the investigation was resumed. On 22 August 2003 the first applicant was questioned and granted victim status in the proceedings.

On 21 September 2003 the investigation was adjourned.

On 17 November 2003 the investigation was resumed upon order of the deputy to the Chechnya Prosecutor.

On 20 November 2003 the investigation examined the Dzhabayevs’ house and collected two bullets and one cartridge.

On 21 November 2003 the first applicant was again questioned. On the same day a ballistic study was ordered and carried out. The Government did not specify what the results were.

On 5-10 December 2003 the investigation questioned witnesses Kheda A., Fatima A. and another neighbour.

On 19 December 2003 the investigation was adjourned.

On 4 January 2004 the investigation was resumed.

On 5 January 2004 the investigation forwarded requests to the pre-trial detention centres in the Northern Caucasus and to all district prosecutors’ offices in Chechnya.

On 5 February 2004 the investigation was adjourned.

On 20 May 2004 the investigation was resumed.

On 1 June 2004 the first applicant was granted the status of a civil claimant in the case.

On 2 - 19 June 2004 the investigation questioned Roza P. and Kheda A., as well as the first applicant and some other persons (presumably neighbours).

On 24 June 2004 the investigation was adjourned.

On 20 December 2004 the investigation was resumed.

On 28 December 2005 the investigation questioned Kheda A., the first, third and fourth applicants and two other persons.

On 20 January 2006 the investigation was adjourned.

On 27 March 2006 the investigation was resumed.

The Government stated that Kheda A. and Roza P., to whom the first applicant had referred, had stated to the investigation that they had not been eyewitnesses to the detention of Mr Ayndi Dzhabayev. A similar statement had been made by Fatima A.’s husband, who had not been at home at the relevant time. The Government did not submit any of those witness statements.

The Government further stated that in December 2005 the investigation had questioned the head of the Urus-Martan administration, who had stated that on 8 September 2002 he had seen the cordon of servicemen in the Krasnoarmeyskaya Street, however he had had no information about the detention of Mr Ayndi Dzhabayev. According to him, the district military commander, G., had been in charge of the operation, but he could not be questioned because he had died.

The investigation failed to establish the whereabouts of Mr Ayndi Dzhabayev. The investigating authorities sent requests for information to competent State agencies on 20 and 21 November and 19 December 2003, and 5 and 6 January and 25 May 2004. The investigation found no evidence to support the involvement of the “special branches of the power structures” (специальных подразделений силовых структур) in the crime. The law enforcement authorities of Chechnya had never arrested or detained Mr Dzhabayev on criminal or administrative charges and had not carried out a criminal investigation in his respect. The Urus-Martan District Department of the Interior, the Chechnya Department of the FSB and the Northern Caucasus military circuit stated that no special operations had been carried out in respect of the applicants’ relative and that he had never been detained by them.

Despite a specific request by the Court the Government did not submit a copy of the file in criminal case no. 61152, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of the notifications to the first applicant of the adjournment and reopening of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in breach of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

4. The applicants’ property complaints

The applicants claimed that they had lost property as a result of unlawful acts. They presented a document from the building company where Ayndi Dzhabayev had worked, which stated that his salary as a bricklayer in 2002 had been roubles (RUR) 6,444 in January, RUR 6,784 in February, RUR 7,150 in March, RUR 5,748 in April, RUR 6,200 in May, RUR 6,920 in June and RUR 7,200 in July.

On 10 September 2002 the first applicant and her neighbours Roza P. and Kheda A. drew up a list of property destroyed in her house, which included a TV, furniture and household items and clothes.

In October 2003 a private trading company made a calculation of damage for the applicants, which it based on the average prices for the given items in the market of Urus-Martan. According to these calculations, the damage to the applicants’ property amounted to RUR 55,460.

COMPLAINTS

1. The applicants submitted that Russia had violated its positive obligations under Article 2 to protect the life of everyone within its jurisdiction. They argued that the known circumstances of Ayndi Dzhabayev’s detention and the absence of any news of him since September 2002 gave rise to a strong presumption that he had been killed by State servicemen, in violation of Article 2 of the Convention. They also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Ayndi Dzhabayev, in violation of their procedural obligations under Article 2 of the Convention.

2. The applicants submitted that the anguish and distress suffered by them as a result of the “disappearance” of their husband and father and the lack of an adequate response on behalf of the authorities amounted to treatment in violation of Article 3 of the Convention.

3. The applicants complained that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Ayndi Dzhabayev.

4. The applicants submitted that they had been deprived of access to a court, contrary to the provisions of Article 6, because a civil claim for damages would entirely depend on the outcome of the criminal investigation into the disappearance. In the absence of any findings, they could not effectively apply to a court. In any event, they had applied to the district court twice in relation to Ayndi Dzhabayev’s disappearance, but had received no response.

5. The applicants claimed that the disappearance of their close family member and the unauthorised search carried out in their home on 8 September 2002 had disrupted their family life and the right to respect for their home and thus violated Article 8 of the Convention.

6. The applicants complained that they had no effective remedies in respect of the above violations, as guaranteed by Article 13.

7. The applicants claimed that on 8 September 2002 their property had been destroyed by State agents in violation of Article 1 of Protocol No. 1. Referring to the same Article, they claimed that they had lost their source of income as a result of Ayndi Dzhabayev’s arrest and disappearance.

8. The applicants alleged, in their latest submissions, that the Government’s failure to produce copies of the files on the criminal investigation constituted a violation of Articles 34 and 38 § 1 (a) of the Convention.

THE LAW

A. The Government’s objection concerning exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction of the applicants’ relative had not yet been completed.

The applicants disputed the Government’s objection. They noted that the Government had not relied on the existence of any domestic remedies which they could have exhausted, except for stating that the investigation was pending. They argued that the criminal investigation had proved to be ineffective and that their complaints to that effect had been futile. They also alleged the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya and referred to the other cases concerning such crimes reviewed by the Court, as well as reports of various NGOs and international bodies.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the complaint about the effectiveness of the investigation, and thus to the merits of the case, that it is inappropriate to determine it at the present stage of the proceedings.

The Court therefore decides to join this objection to the merits.

B. Merits of the application

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of Mr Dzhabayev, and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government submitted that the circumstances of the applicants’ relative’s disappearance were under investigation. It had not been established that he had died or that State agents had been involved in his abduction. Furthermore, they noted that Mr Ayndi Dzhabayev had not been declared dead by a court, but only a missing person. The investigation was in compliance with Article 2 of the Convention.

The applicants submitted that, since their relative had been missing for a very lengthy period, it could be presumed that he was dead. That presumption was further supported by the circumstances in which their relative had been detained, which should be recognised as life-threatening. They noted that they had sought to have Ayndi Dzhabayev declared dead through the court and that the proceedings were pending. The applicants contended that the detention had occurred within the context of a sweeping operation carried out under the command of the district military commander, as supported by the documents from the investigation file and the Government’s admissions.

As regards the procedural obligation under Article 2, the applicants argued that even though an investigation had been mounted into the disappearance, it was inefficient and had been unable to demonstrate any progress over a period of several years. It had been opened with a delay of over two months after the commission of the crime, they had had no opportunity to acquaint themselves with the case file, and the military prosecutor’s office had not been involved in the investigation, despite information about the implication of military servicemen in the abduction. No steps had been taken by the investigation to identify and question the possible abductors of Mr Dzhabayaev.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complained that as a result of the disappearance of their husband and father and the authorities’ complacency in the face of their complaints they had been subjected to treatment in violation of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government denied that allegation.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants complained that Mr Dzhabayev had been subjected to unacknowledged detention and thus deprived of liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government submitted that there was no evidence that Mr Dzhabayev had been deprived of his liberty in violation of Article 5 of the Convention.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The applicants also complained of their inability to access a court under Article 6 of the Convention, which reads, in relevant parts:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicants stressed that they had on two occasions applied to the Urus-Martan District Court with complaints of the ineffectiveness of the investigation and a civil claim; however the court had given no reply whatsoever to their applications.

The Government disputed this allegation. They noted, furthermore, that on 1 October 2003 the Urus-Martan District Court had declared Mr Dzhabayev a missing person.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5. The applicants alleged that Article 8 had been violated. It reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

They argued that the disappearance of their husband and father had amounted to an unlawful interference into their family life. They also stated that the search carried out at their family home on 8 September 2002 and subsequent destruction of their property had not been lawful.

The Government denied this allegation.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

6. The applicants complained under Article 13 of the Convention that they had had no effective remedies in respect of the alleged violations of the Convention. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contended that the applicants had had effective domestic remedies available, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies.

The applicants cited the Court’s case-law on the subject and submitted that the only effective remedy in cases of enforced disappearance was a criminal investigation. As this had proved to be ineffective, the relevance of any other remedy had been undermined.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

7. The applicants asked the Court also to find a breach of Article 1 of Protocol No. 1, which provides, as far as relevant:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”

The Government stated that there were no grounds to believe that the Russian authorities had been responsible for the damage to the applicants’ property.

The applicants stated that their property had been damaged on 8 September 2002 by the same servicemen who had apprehended Ayndi Dzhabayev. They also asked the Court to calculate under the same heading the loss of income of Ayndi Dzhabayev after his disappearance.

In so far as the applicants allege that they had lost the future income of their family member, the Court refers to its case-law that future income itself is only a “possession” once it has been earned, or if an enforceable claim to it exists (see Ian Edgar (Liverpool) Ltd v. the United Kingdom (dec.), no. 37683/97, ECHR 2000-I, and Van Marle and Others v. the Netherlands, judgment of 26 June 1986, Series A no. 101, p. 13, §§ 39-41). In the present case, the Court considers that the applicants are complaining in substance of a possible loss of future income that has not become their possession in the meaning of the case-law cited above. The Court concludes that the complaint thus falls outside the scope of Article 1 of Protocol No. 1 (see, mutatis mutandis, Findlater v. United Kingdom (dec.), no. 38881/97, 26 September 2000).

It follows that this part of their complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

In so far as the applicants complain about the damage to their property as a result of the events of 8 September 2002 and the inability to obtain compensation, the Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 3, 5, 6, 8 and 13 of the Convention and under Article 1 of Protocol No. 1, in the part concerning the damage to their property caused on 8 September 2002;

Declares inadmissible the remainder of the complaint.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy