AKHMADOVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3026/03
by Madina Bilalovna AKHMADOVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 11 December 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 20 October 2002,

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 Madina Bilalovna Akhmadova, born in 1954;

(2) Mr Magomad Musayevich Akhmadov, born in 1979;

(3) Mr Kazbek Musayevich Akhmadov, born in 1982;

(4) Mr Turpal Musayevich Akhmadov, born in 1984.

The applicants are Russian nationals and live in Grozny, Chechnya. They are represented before the Court by lawyers of the Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with offices in Moscow and in Ingushetia, Russia. The respondent Government were represented by Mr P.A. Laptev, the 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. Detention and disappearance of Musa Akhmadov

The first applicant is the wife of Musa Mausurovich Akhmadov, born in 1951. The second, third and fourth applicants are their children. They all live in Grozny. The first applicant is disabled and cannot work.

On 6 March 2002 Musa Akhmadov travelled to the village of Makhkety in Vedeno district in the south of Chechnya to see his ailing father. On that day between 2 and 3 p.m. he was detained at the military checkpoint in Kirov-Yurt village, Vedenskiy district. The applicants did not themselves witness the detention, and in their reconstruction of the events they relied on an affidavit by Alu S., the first applicant’s cousin, who was travelling with Musa Akhmadov, as well as on information obtained by them from the residents of Makhkety and the senior officer of the checkpoint in Kirov-Yurt.

Alu S. submitted that he and Musa Akhmadov had arrived in the town of Shali, where they had hired a VAZ car with a driver to take them to Makhkety. In the village of Kirov-Yurt (also known as Tezvan) the car had been stopped at the permanent checkpoint of the Russian military, which had been installed in 2000 and remained there until early 2003. The military collected documents from the persons in the car and took them inside the checkpoint. Several minutes later they returned the passports of everyone except for Musa Akhmadov, who was ordered to get out of the car. The soldiers ordered the car to move away from the roadblock and took Mr Akhmadov into the roadblock building on the hill. Alu S. got out of the car and tried to stop the soldiers but one of them threatened him with a machine gun and forbade him to approach.

Some time later the military serviceman who had accompanied Musa Akhmadov into the roadblock building returned to the road, and Alu S. asked him what had happened. The serviceman said that Musa Akhmadov had been detained because his family name had been on the list of wanted persons. He also said that they had called the headquarters of their regiment in the village of Khatuni and that someone would come from there and take him to that military unit for an identity check. All further questions should be directed to the regiment in Khatuni.

Later, a senior officer at the roadblock who was known as “Arthur” (the applicants submitted that it was not his real name) told Musa Akhmadov’s relatives that the latter had been taken on the same day to the military base in Khatuni by an armoured personnel carrier (APC) with hull number 719.

The applicants have had no news of Musa Akhmadov since his detention on 6 March 2002.

The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 6 March 2002 at the roadblock near Kirov-Yurt unidentified armed men had arrested Musa Akhmadov and taken him away to an unknown destination.

2. Search and investigation into the “disappearance”

Immediately after Musa Akhmadov’s detention the applicants and other family members started looking for him.

On the day of detention, on 6 March 2002, Musa Akhmadov’s relatives went to the military base in Khatuni, but were not allowed to go through the gates. At about 6 p.m. the head of the temporary group of policemen from Samara on mission in Vedeno district, Mr Andrey K., came out to see them. He confirmed that he had seen Musa Akhmadov at the base and had talked to him. He assured the relatives that he had been detained by mistake, that in fact they were looking for another Akhmadov and that he would be released the next morning.

On the following morning, at about 10 a.m. on 7 March 2002, Mr K. again came out and told the relatives that Mr Akhmadov had been transferred by helicopter to the main military base in Khankala, where he would be released according to his permanent registration [in Grozny].

The applicants learnt of Musa Akhmadov’s detention on 7 March 2002 and the first applicant immediately travelled to Khatuni. In the morning of 8 March 2002 she too went to the military base in Khatuni and talked to Mr Andrey K., who confirmed that her husband had been transferred to the Khankala military base the day before and who said that he had probably already been released in Grozny.

The applicants applied to numerous official bodies, both in person and in writing, trying to find out the whereabouts and the fate of Musa Akhmadov. Among other authorities they applied to the departments of the Interior, to the military commanders, to the Federal Security Service (FSB), to the civil and military prosecutors of various levels, to administrative authorities and public figures, and to the OSCE mission in Chechnya. The first applicant also personally visited detention centres and military bases in Chechnya and elsewhere in the Northern Caucasus. She attempted to get access to the Khankala military base where her husband had allegedly been taken, but she was not permitted to enter.

The applicants received hardly any substantive information about the fate of their husband and father and 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 25 April 2002 the first applicant talked to “Arthur”, the head of the roadblock in Kirov-Yurt. The applicants submitted that the roadblock had been manned by servicemen of the 51st airborne regiment from Tula (51-й полк ВДВ г. Тула). “Arthur” asked her if she had applied anywhere in connection with her husband’s disappearance. The first applicant replied that her father-in-law had written a complaint to the local department of the FSB. “Arthur” told her that probably because of that he had been visited by officers of the FSB, who had destroyed all entries relating to Akhmadov’s detention and told him to keep quiet. In reply to “Arthur”‘s question about the witnesses to the detention, the applicants allegedly told him that the witnesses would keep quiet too.

The first applicant submitted that she had talked on several occasions to the servicemen at the base in Khatuni, who used the names Sergey, Dima, Yarulin and Damir (the applicant believed these were not their real names) and that they had not denied her husband’s detention there.

On 13 May 2002 the Vedeno District Prosecutor’s Office informed the applicant that on the same day they had opened criminal file no. 73023 “into the kidnapping of Musa Akhmadov, born in 1951, on 6 March 2002 at the roadblock in Kirov-Yurt”.

On 21 May 2002 the first applicant submitted a complaint about her husband’s detention and disappearance to the Chechnya Prosecutor’s Office, identifying the witnesses to the detention.

On 22 and 23 May 2002 she submitted similar complaints to the military prosecutor of military unit no. 20102 in Khankala.

On 23 May 2002 the first applicant sent complaints about her husband’s detention and disappearance to the President of Russia and the Ministry of the Interior.

On 27 May 2002 she submitted a similar complaint to the Head of Administration of Chechnya.

On 4 June 2002 the Government of Chechnya informed the applicant that her complaint had been forwarded to the Ministry of the Interior for organisation of the search and to the local prosecutors in Grozny.

On 11 June 2002 the first applicant wrote to the Special Envoy of the Russian President in Chechnya for Rights and Freedoms. In that letter she referred to her conversation with “Arthur” on 25 April 2002, during which he had informed her of the destruction of documents related to her husband’s detention.

On 18 June 2002 the applicant’s complaint was forwarded by the Chechnya Prosecutor’s Office to the Vedenskiy district prosecutor.

On 20 June 2002 the General Prosecutor’s Office forwarded the applicants’ complaint concerning her husband’s detention by the military servicemen to the Chechnya Prosecutor.

On 23 June 2002 the head of the Oktyabrskiy District temporary department of the interior of Grozny (Oktyabrskiy VOVD) informed the applicant that her complaint had been forwarded to the Vedenskiy VOVD.

On 27 June 2002 the Vedenskiy District Prosecutor’s Office informed the first applicant that criminal case no. 73023, opened in relation to the kidnapping of her husband “by unknown persons”, had been forwarded for investigation to the responsible military prosecutor of military unit no. 20116 in Shali.

On 28 June 2002 the military prosecutor for the Northern Caucasus Military Circuit forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20116 in Shali with a request to conduct a thorough investigation of the complaint and to inform the applicant and the circuit prosecutor of the results.

On 4 July 2002 the military prosecutor of military unit no. 20116 forwarded the documents related to the applicant’s complaint to the Regional Counter-Terrorist Operations Headquarters in Khankala, with a copy to the applicant. The forwarding letter said that the applicant’s husband had been detained in Kirov-Yurt on 6 March 2002 by unidentified persons, and that there were no reasons to suspect the involvement of military servicemen.

On 19 July 2002 the Chechnya Prosecutor’s Office forwarded the applicant’s complaint to the Vedenskiy District Prosecutor’s Office, asking them to investigate the applicant’s complaint that her husband had been detained on 6 March 2002 at the roadblock in Kirov-Yurt village by servicemen of the 45th regiment, who had been stationed in Khatuni and who had used an APC with hull number 719.

On 22 July 2002 the Chechnya Prosecutor’s Office replied to the NGO Human Rights Watch, who had intervened on the applicants’ behalf, that on 25 June 2002 investigation file no. 73023 had been forwarded to the Shali district military prosecutor.

On 15 August 2002 the Chechnya Prosecutor’s Office informed the first applicant that the preliminary investigation carried out by the Vedenskiy District Prosecutor’s Office into the kidnapping of her husband had established the involvement of military servicemen of the 45th regiment. On 27 June 2002 criminal investigation file no. 73023-02 had been forwarded to the military prosecutor of military unit no. 20116 in Shali, where all further requests should be directed.

In August 2002 the story of Musa Akhmadov’s disappearance was reported by Anna Politkovskaya in the Moscow-based Novaya Gazeta in an article “Disappearing People: There Are Fewer And Fewer Akhmadovs’ in Chechnya”.

On 7 October 2002 a lawyer practising in Moscow wrote, on the first applicant’s behalf, to the military prosecutor of military unit no. 20102 in Khankala. He inquired if a criminal case had been opened into Mr Akhmadov’s kidnapping by the military servicemen, and asked for copies of any procedural decisions taken in the case.

On 25 October 2002 the Vedenskiy District Prosecutor confirmed to the first applicant that the criminal case of her husband’s kidnapping had been opened in May 2002, and that actions aimed at finding him continued.

On 11 October 2002 the Chechnya Prosecutor’s Office replied to the OSCE mission in Chechnya about progress in several kidnapping cases, including that of Musa Akhmadov. The letter stated that “on 18 June 2002 the Vedenskiy District Prosecutor’s Office opened criminal investigation file no. 73039 under Article 126 part 2 of the Criminal Code. On 18 August 2002 the investigation was suspended under Article 208 part 1 of the Criminal Procedure Code [failure to identify the culprits]”.

On 18 November 2002 the SRJI (Stichting Russian Justice Initiative), acting on the applicant’s behalf, requested the military prosecutor of military unit no. 20116 in Shali and the Vedenskiy District Prosecutor to inform them of progress in the criminal case file no. 73023.

On 30 December 2002 the Chechnya Prosecutor’s Office informed the first applicant that “on 18 June 2002 the Vedenskiy District Prosecutor opened criminal case file no. 73039 into Musa Akhmadov’s kidnapping. At present various steps are being taken in order to establish the whereabouts of the kidnapped person and to identify the culprits”. The letter also recommended the first applicant to send further queries to the Vedenskiy District Prosecutor’s Office.

On 17 January 2003 the Vedenskiy district prosecutor wrote to the SRJI that information concerning the investigation was confidential and could be disclosed only to the supervising prosecutor.

On 25 March 2003 the military prosecutor of military unit no. 20116 forwarded the first applicant’s complaint “about the disappearance of her husband in the vicinity of Kirov-Yurt village” to the Vedenskiy District Prosecutor’s Office. The applicant was also informed that the search for missing persons was within the competence of the bodies of the Interior Ministry, where she should apply.

On 2 April 2003 the Chechnya Prosecutor’s Office again informed the applicant that on 18 June 2002 the Vedenskiy district prosecutor had opened case file no. 73039 into Musa Akhmadov’s kidnapping. On 18 June 2002 [sic] the investigation had been suspended for failure to identify the culprits. The letter further stated that on 17 December 2002 the building of the Vedenskiy District Prosecutor’s Office had been shelled by an illegal armed group, and as a result of the ensuing fire the archives and all criminal case files had been destroyed. The letter concluded by saying that the prosecutor’s office continued to take all possible steps to restore the criminal case file no. 73039 and to solve the crime.

On 11 April 2003 an investigator of the Oktyabrskiy District Department of the Interior (ROVD) in Grozny issued a decision to grant the first applicant victim status in criminal case file no. 73023 instituted into her husband’s kidnapping.

On 17 April 2003 the SRJI asked the military prosecutor of military unit no. 20116 to inform them if the first applicant had been granted victim status in the criminal proceedings concerning her husband’s kidnapping, and to forward them a copy of the relevant decision.

On 2 May 2003 the first applicant wrote several letters to Duma deputies, asking for assistance in finding her husband and complaining of the inactivity of the investigation despite the known details of the military units involved.

On 4 May 2003 the first applicant wrote a similar letter to the Secretary of the Security Council of Chechnya.

On 10 May 2003 the applicant wrote a detailed answer to the letter of 25 March 2003 from the military prosecutor. She stressed that her husband had not “disappeared in the vicinity of Kirov-Yurt”, but that he had been detained by military servicemen at the roadblock. She gave them available information about the names and positions of the military and policemen who had been involved in his arrest and who had later confirmed to her her husband’s detention. She asked the prosecutor to obtain the lists of servicemen who were manning the roadblock at the time and to question them, to review the lists of the persons detained, to establish, with her help, the identity of the officers who had talked to her at the base in Khatuni and to question them, including Mr Andrey K., who worked as the senior investigator in the Leninskiy District Department of Interior in Samara, to question herself and other witnesses to her husband’s detention, and to inform her of her husband’s whereabouts.

On 3 June 2003 the Oktyabrskiy District Court of Grozny, on the first applicant’s request, declared Musa Akhmadov a missing person. The first applicant and two witnesses, Alu S. and Mr. R. M., testified that on 6 March 2002 Musa Akhmadov had been taken out of a car by servicemen at the roadblock near Kirov-Yurt and taken away. He has not been seen since. The court noted that the criminal investigation into Mr Akhmadov’s kidnapping by unknown persons had been pending and had declared him a missing person, since 6 March 2002.

On 16 June 2003 the military prosecutor of military unit no. 20116 informed the SRJI that criminal case file no. 73023 related to Mr Akhmadov’s kidnapping had not been received by that office.

On 8 August 2003 the SRJI again requested the Vedenskiy District Prosecutor’s Office to inform them of the progress of the criminal investigation into Musa Akhmadov’s kidnapping and to grant the first applicant victim status in the proceedings.

On 1 September 2003 the criminal investigation department of the Ministry of the Interior of Chechnya informed the first applicant that criminal case no. 73039 concerning the kidnapping of Musa Akhmadov had been investigated by the Chechnya Prosecutor’s Office.

On 19 September 2003 the SRJI wrote to the Vedenskiy district prosecutor and asked him to take a number of steps aimed at solving the applicant’s husband’s kidnapping. The letter stated that it had been established that at the relevant time the base in Khatuni, where Mr Akhmadov had last been seen, had been manned by servicemen of the 45th airborne regiment from Moscow. The SRJI asked the prosecutor to obtain a list of servicemen who had served at the base at the relevant time and to question them about Mr Akhmadov’s whereabouts. The letter also suggested that a confrontation should be organised between the first applicant and other relatives and the servicemen of the regiment, in order to identify the persons who had talked to the relatives in the days following Mr Akhmadov’s arrest. The first applicant and other relatives would be prepared to travel to Moscow for such a confrontation. In addition, the SRJI again asked to question Mr Andrey K., who worked as the senior investigator in the Leninskiy District Department of the Interior in Samara.

As there was no reply to that letter, a similar letter was forwarded on 11 November 2003 to the Chechnya Prosecutor. The SRJI also requested the investigation to ask the commanders of the military base in Khatuni in writing whether Mr Akhmadov had been detained there.

On 18 November 2003 the Chechnya Prosecutor’s Office informed the SRJI that in December 2002 the building of the Vedeno District Prosecutor’s Office had been attacked and burnt down, and that at present action was being taken to restore documents relating to the criminal case of Mr Akhmadov’s kidnapping.

On 18 December 2003 the military prosecutor of military unit no. 20116 informed the first applicant and the military prosecutor of the Tula garrison of the following. After 19 December 2003 their office had carried out an inquiry into the first applicant’s statement, as a result of which it had been established that in March 2002 two regiments had been stationed in Khatuni, nos. 45 and 51. Servicemen of the military unit no. 28337 (45th airborne regiment) had not taken part in any special operations, they had not detained Mr Akhmadov and the military unit had no airborne combat vehicles (боевая машина десанта, BMD). The commander of military unit no. 28337, Lieutenant-Colonel V. T., and servicemen of the said military unit testified that in August 2002 (as in the text) Mr Akhmadov had not been detained or brought to the headquarters of the military unit in Khatuni, that no special operations had been carried out at the relevant time; and that their unit did not have BMDs. As to the 51st airborne regiment, at the end of November 2003 it had been transferred from Chechnya to its permanent base in Tula, and thus its involvement in Mr Akhmadov’s detention could not be investigated.

On 28 January 2004 the first applicant submitted a letter to the military prosecutor of the United Group Alliance (UGA), asking to help her to obtain information from the servicemen of the 45th and 51st airborne regiments about the fate of her husband.

On 19 February 2004 the military commander of Chechnya requested the military commander of the Vedeno district, the district departments of the Interior and the FSB to investigate the facts as presented by the first applicant and to take steps to find Musa Akhmadov, who had been detained on 6 March 2002 at around 3 p.m. at the roadblock in Kirov-Yurt by servicemen of the 51st airborne regiment and taken to the military base in Khatuni in a BMD, hull number 719.

On 26 February 2004 the military prosecutor of the Tula garrison informed the military unit no. 2116 in Shali and the first applicant that their office had carried out an inquiry, with the following results. On 6 March 2002 servicemen of the 3rd inter-service team of the Ministry of Justice had detained a resident of Grozny, M. M. Akhmadov, as a person involved in illegal armed groups. With the assistance of servicemen of the regiment’s task team (military unit no 33842), whose names could not be established, the detained person had been transferred to the special field subdivision of the FSB (специальный полевой отдел ФСБ), located at the base camp of the regiment’s task force (базовый лагерь полковой тактической группы), and transferred to its servicemen. The letter concluded that since the special field subdivision of the FSB had been located in territory under the jurisdiction of the military prosecutor of military unit no. 20116, this office should carry out further investigation. The letter listed eight pages of attachments, which were not copied to the first applicant.

On 2 April and 28 April 2004 the military prosecutor of military unit no. 20116 informed the first applicant that their office had found no information that servicemen of the military units under their jurisdiction had been involved in a crime. No special operations had been carried out at the relevant time, and no-one had been detained or delivered to the law-enforcement authorities by the military servicemen of the district. The applicant was advised to apply to the local bodies of the Interior Ministry.

On 15 May 2004 the military prosecutor of the UGA informed the first applicant that the whereabouts of her husband or the identity of the persons who had kidnapped him could not be established. She was instructed to seek further information about the investigation from the Vedeno District Prosecutor’s Office.

On 17 May 2004 the investigator of the Vedeno District Prosecutor’s Office granted the first applicant victim status in the criminal proceedings instituted in connection with the disappearance of her husband, who had been detained on 6 March 2002 at about 3 p.m. in the vicinity of Kirov-Yurt by unknown military servicemen using a BMD.

On 4 June 2004 the military prosecutor of military unit no. 20116 informed the first applicant that on 6 March 2002 servicemen of the 3rd inter-service team of the Ministry of Justice had detained a resident of Grozny, M. M. Akhmadov, as a person involved in illegal armed groups. With the assistance of servicemen of military unit no 33842 the detained person had been transferred to the special field subdivision of the FSB, located in the base camp of the regiment’s task force in Khatuni, and transferred to its servicemen. However, it turned out to be impossible to identify the persons who had detained Mr Akhmadov or to whom he had been transferred. She was further instructed to apply to the local bodies of the interior responsible for searching for missing persons.

On 12 July 2004 the first applicant asked the head of the FSB to assist her in finding her husband, who had last been seen at the military base in Khatuni on 6 March 2002.

On 30 September 2004 the deputy head of the military counterintelligence department of the FSB informed the first applicant that the FSB had no information about the detention of Musa Akhmadov on 6 March 2002 in Kirov-Yurt. The letter further stated that the servicemen who had served in the said location in 2002 had either been transferred to other locations or dismissed from service, but that measures would be taken to identify them and question in relation to the first applicant’s husband’s fate. The first applicant would be kept informed of the results.

On 31 January 2005 the first applicant wrote to the President of Chechnya and asked him to find out how her husband’s name had been included in the list of persons involved in illegal armed groups, in the absence of any such involvement.

On 3 February 2005 the first applicant wrote to the Prosecutor General. She complained that the military prosecutor and the civil prosecutor had been transferring her complaints from one to the other and that no proper investigation had taken place. She complained that the military prosecutor’s office no. 20116 had failed to investigate the circumstances of her husband’s disappearance.

On 3 February 2005 the first applicant wrote to the head of the military counterintelligence department of the FSB and asked him to help her find her husband, who had apparently been transferred to the military base in Khankala.

On 26 February 2005 the Chechnya military commander again instructed the Vedeno military commander to investigate the facts as submitted by the first applicant and to take measures in order to establish Mr Akhmadov’s whereabouts.

On 18 and 19 April 2005 the military prosecutor of the UGA instructed the military prosecutor of military unit no. 22116 to inform the applicants of progress in the case concerning Mr Akhmadov’s kidnapping and to submit all the relevant documents.

On 22 April 2005 the FSB Department for Chechnya informed the head of the State Council of Chechnya that they had no information about Musa Akhmadov and that the latter had not been detained by the FSB. The letter also stated that the servicemen of the Department had been instructed to carry out a search for the missing man and that the first applicant would be informed of any progress.

On 6 May 2005 the prosecutor of military unit no. 20116 informed the first applicant that in order to identify the persons who had detained her husband on 6 March 2002, they had sent an information request to the “competent body”. The applicant would be informed if there was any progress. In the meantime, she should apply to the Vedeno District Prosecutor’s Office where the criminal case was pending.

On 18 May 2005 the head of the criminal investigation department of the Ministry of the Interior of Chechnya informed the first applicant that they had taken a number of steps to find Mr Akhmadov; however, none of them had achieved any results. In particular, they had questioned the servicemen of the military units stationed in the district, forwarded requests for information to the district military commander’s office, the headquarters of the 45th airborne regiment, and the pre-trial detention centre in Chernokozovo.

On 17 July 2005 the military prosecutor of the UGA informed the first applicant that the servicemen of the federal forces had not been involved in the kidnapping of her husband. The criminal investigation was pending with the Vedenskiy District Prosecutor’s Office.

On 6 September 2005 the head of the Vedeno ROVD informed the first applicant that their office had opened a search file on 23 December 2004. They had conducted house-to-house enquiries in Kirov-Yurt in order to find the witnesses of Musa Akhmadov’s kidnapping, distributed information about the missing man to their officers, and sent information requests to a number of local authorities. Actions aimed at finding her husband would continue.

In November 2004 the first applicant submitted to the SRJI a written account of a public meeting which had taken place in June 2004 in front of the building of the Chechnya Government, attended mostly by women looking for their missing relatives. The first applicant submitted that on that day the gathering had been forcibly dispersed by the police and a number of participants, including herself, had been briefly detained. She had been questioned by several senior officers of the Chechen police, who had suspected her of organising the unauthorised rally and warned her that she should not continue the search for her husband.

The first applicant also submitted that her health had deteriorated. In May 2005 a doctor confirmed that she was suffering from hypertension and a heart condition. On 4 June 2004 the first applicant had been examined by a doctor who had noted high blood pressure and administered treatment.

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. They did not submit copies of any of the documents to which they referred.

On 13 May 2002 the Vedeno District Prosecutor’s Office opened a criminal investigation (file no. 73023) under Article 126, paragraph 2 (a) and (g), into the kidnapping of M. Akhmadov, upon receipt of information from the Vedeno ROVD.

At the same time, on 18 June 2002 the Vedeno District Prosecutor’s Office opened a criminal investigation (file no. 73039) on a complaint submitted by the first applicant about her husband’s kidnapping.

On 21 June 2002 the investigation of both cases was joined under file number 73023.

On 27 June 2002 the said case file was forwarded to the military prosecutor of military unit no. 20116. However, since no involvement of military personnel in the crime could be established, the case file was returned to the District Prosecutor’s Office on 13 July 2002,

On 13 July 2002 the investigation was adjourned under Article 208 part 1 of the Code of Criminal Procedure.

On 17 December 2002 the premises of the Vedeno District Prosecutor’s Office was shelled by unknown persons and caught fire. As a result, a number of criminal files and other documents were destroyed, including criminal case no. 73023. A criminal case was opened into the incident on the following day, and measures have been taken in order to restore the destroyed documents.

On 26 February 2003 the investigation questioned Musa Akhmadov’s sister, Z. A., who testified about the circumstances of the crime.

According to the Government, the investigator forwarded requests to the Vedeno and the Oktyabrskiy [Grozny] District Departments of the Interior, asking these offices to take measures to solve the crime. He also requested information about the possible detention of Musa Akhmadov from the district department of the FSB. The latter office replied on 24 March 2003 that they had not detained Musa Akhmadov and had not carried out any search and operative measures in respect of him.

On 3 March 2003, and later again on 11 November 2005, the investigation questioned R. A., another of Musa Akhmadov’s sisters, and a neighbour M. T. On 14 November 2005 the investigation questioned Mr Kh. M. The Government did not indicate what these witnesses had stated.

The Government also stated that no further information about the progress of the investigation was apparent from the case file.

On 12 May 2004 the acting prosecutor of the Vedeno district reopened proceedings, of which the first applicant was informed.

On 13 May 2004 the investigation requested the district department of the FSB to take measures to identify persons responsible for Mr Akhmadov’s kidnapping.

On 17 May 2004 the first applicant was granted victim status in the proceedings.

On 18 May 2004 the investigation sent information requests to all the district prosecutor’s offices in Chechnya, to the head of the UGA and to the military commander of the republic. The Government did not indicate the contents of these requests or whether any replies had been received.

On 12 June 2004 the investigation was adjourned, of which the first applicant was informed.

On 17 September 2004 the acting prosecutor of the Vedeno district reopened proceedings and informed the first applicant. On 17 October 2004 the investigation was adjourned.

On 2 November 2005 the investigation was reopened. From 3 to 6 November 2005 new information requests were sent to the “competent bodies”. The Government did not give any further details about these requests.

In November 2005 the first applicant was questioned as a victim on two occasions. Seven other persons were also questioned, including Musa Akhmadov’s sisters and Mr Kh. M. The Government did not indicate what they had stated.

On 16 November 2002 the deputy district prosecutor repeated the decision of 21 June 2002 to join criminal investigation files numbers 73023 and 73039, because the original had been lost.

On 2 December 2005 the investigation was suspended, and on 18 January 2006 it was reopened. The first applicant was informed of the reopening.

Despite specific requests made by the Court on two occasions, the Government did not submit any documents from the file in criminal case no 73023. 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 violation 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. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of documents disclosing military information and personal data of the witnesses, and without the right to make copies of the case file and transmit it to others.

B. Relevant domestic law

Until 1 July 2002 criminal law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 161 of the new CCP stipulates that information from preliminary investigations may not be disclosed. Part 3 of the same Article provides that information from an investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.

COMPLAINTS

1. The applicants submitted that the known circumstances of Musa Akhmadov’s detention and the absence of any news of him since 6 March 2002 gave rise to a strong presumption that he had been extra-judicially executed by the Russian 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 his disappearance, in violation of the procedural obligations under Article 2 of the Convention.

2. The applicants submitted that there were strong reasons to believe that Musa Akhmadov had been subjected to treatment contrary to Article 3 during and after his arrest.

3. 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 had amounted to treatment in violation of Article 3 of the Convention.

4. The applicants complained that the provisions of Article 5 as a whole, related to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Musa Akhmadov.

5. 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.

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

7. The applicants complained of discrimination prohibited by Article 14 of the Convention, alleging that the above violations had occurred because their family was of Chechen origin and they were residents of Chechnya.

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 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. They also referred to Article 125 of the Code of Criminal Procedure, which allowed participants in criminal proceedings to complain to a court about measures taken during an investigation.

The applicants disputed the Government’s objection. They argued that the criminal investigation had proved to be ineffective and that the remedy suggested by the Government would not be adequate or effective. They referred by way of example to other cases concerning the investigation of abuses committed by the federal forces in Chechnya where complaints submitted under that procedure had proved to be ineffective. They alleged that the representatives of the State had been responsible for the detention and subsequent disappearance of their husband and father, and suggested that there was an administrative practice of non-investigation of crimes committed by the representatives of the State in Chechnya.

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 Musa Akhmadov, 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 Mr Akhmadov’s disappearance were under investigation. It had not been established that he had died or that State agents had been involved in his abduction. The investigation was in compliance with Article 2 of the Convention. In spite of the destruction of the investigation file in December 2002, it had been reconstituted and measures aimed at finding Mr Akhmadov continued.

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 he had been detained, which should be recognised as life-threatening. The applicants stressed that the unacknowledged detention had occurred at the roadblock manned by servicemen of the federal troops, which fact was not denied by the Government. No plausible explanation had been forthcoming from the authorities to explain what had happened to Mr Akhmadov after his unacknowledged detention on 6 March 2002.

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. The investigation had been opened with a delay of more than two months after the abduction, on 13 May 2002. The first applicant had only been granted victim status in April 2003. No steps had been taken by the investigation to identify and question the possible abductors. The proceedings had been suspended and reopened a number of times, and thus the taking of important steps had been unacceptably delayed. The applicants did not get access to the case file, in breach of the relevant provisions of the national legislation and the Convention requirements. The Government’s refusal to submit the case file materials had served, in the applicants’ view, as further proof of the investigation’s superficial character.

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 their relative had been subjected to treatment in violation of Article 3. They also argued that as a result of their close relative’s disappearance 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 Musa Akhmadov had been subjected to unacknowledged detention and thus deprived of his 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 Akhmadov 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 Government disputed this allegation.

The applicants made no further comments.

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 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. In particular, the first applicant had been granted the status of victim in the criminal proceedings concerning her husband’s abduction and had received replies to the applications she had submitted in the context of the proceedings. The investigation into the disappearance was still pending. At the same time the applicants had not applied to the domestic courts with any complaints concerning either the unlawful detention of their relative or any actions by agents of the law-enforcement bodies. They had not submitted civil claims for damages either.

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 was 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.

6. The applicant complained that they had been discriminated against in the enjoyment of their Convention rights, contrary to Article 14 of the Convention, which reads as follows:

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicants alleged that they had suffered from prejudice and a hostile attitude of the authorities as result of their ethnic origin and residence in Chechnya. They argued that similar violations of Articles 2, 3 and 5 of the Convention take place systematically in the territory of the Chechen Republic, and that the authorities do not investigate effectively such crimes committed by the representatives of the State.

The Government contended that the applicants had never been discriminated against in the enjoyment of their Convention rights on any ground.

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.

For these reasons, the Court unanimously

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

Declares the application admissible, without prejudging the merits.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy