AKHMATOVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications no. 13569/02 and 13573/02
by Zulpa AKHMATOVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 23 October 2007 as a Chamber composed of:

MrL. Loucaides, President,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above applications lodged on 19 March 2002,

Having regard to the decision to grant priority to the above applications 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 Zulpa Akhmatova (also spelled Akhmadova), born in 1939;

(2) Mr Abaz Debizov, born in 1932 (died in June 2004);

(3) Mrs Taus Serbiyeva, born in 1932;

(4) Mr Islam Serbiyev, born in 1964;

(5) Mrs Saret Yasadova, born in 1963;

(6) Mr Sharpudi Bargayev, born in 1956.

The first four applicants submitted their complaint to the Court, which was registered under file number 13569/02. The fifth and the sixth applicants’ complaint was registered under number 13573/02. Because the complaints concern the same set of events, the Court considered them together.

The applicants are Russian nationals and live in Chechnya. They all live in the village of Novye Atagi, in the Shali District, except for the fourth applicant, who lives in Grozny. The applicants are represented before the Court by lawyers of the Stichting Russian Justice Initiative, an NGO based in the Netherlands with offices in Moscow and in Ingushetia, Russia. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

The circumstances of the case

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

1. Detention of the applicants’ relatives on 14 January 2001

The applicants submitted that between 14 and 16 January 2001 the federal troops had conducted a “sweeping” operation (“зачистка”) in the neighbouring villages of Novye Atagi and Starye Atagi. Early in the morning on 14 January 2001 the federal forces blocked the roads leading into Novye Atagi and stopped the traffic on the Grozny to Shatoy highway, which is the main road leading into and out of the village. They then disarmed and blocked the local police and cut off their communications. After that they proceeded to carry out house-to-house searches and identity checks.

The military operation was allegedly in response to the kidnapping on 9 January 2001 of a Médecins sans Frontières humanitarian worker, Kenneth Gluck, which had occurred on the road outside Starye Atagi. The operation was well documented by human rights NGOs, such as Memorial and Human Rights Watch. The applicants submitted numerous affidavits about the events of 14 to 16 January 2001 produced by members of the families of the detained persons and by neighbours. They suggested that at least 21 men had been detained in Novye Atagi and Starye Atagi during that operation, including their relatives Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev.

(a) Detention of Said-Magomed Debizov and Iznovr Serbiyev

The first and the second applicants are the mother and father of Said-Magomed (also spelled Said-Magomet) Abazovich Debizov, born in 1967. Both applicants retired and lived at 40 Arsanova Street. The first applicant suffers from epilepsy and diabetes and the second applicant had advanced tuberculosis (he died in June 2004). Their son Said-Magomed Debizov was a cattle-breeder, and after finishing his army service in 1987 he lived in Kalmykia. He was married and had five minor children; his family resided in Kalmykia. He was also suffering from tuberculosis. In early January 2001 Said-Magomed Debizov came to his home village of Novye Atagi to visit the first and the second applicants, whom he also supported financially. Immediately upon arrival he registered with the village administration. Said-Magomed Debizov was described by the head of the village administration as a good member of the community and part of a large and hard-working family, who had not taken part in unlawful activities.

The third and the fourth applicants are the mother and brother of Iznovr Usamovich Serbiyev, born in 1967. Iznovr Serbiyev was the youngest of the third applicant’s eight children, and lived with her at 62 Arsanova Street in Novye Atagi. He was married and the father of three minor children. After completing his service in the Soviet army in 1987, he graduated from university with a degree in economics. However, he could not find work in this field, and supported his family by working as a car mechanic in Novye Atagi. Iznovr Serbiyev was described by the head of the village administration as a respectful and honest man, who had no connections with the illegal fighters.

Said-Magomed Debizov and Izvnovr Serbiyev had been friends since childhood. Early in the morning on 14 January 2001 they both went to the car repair shop where Mr Serbiyev worked. They were both carrying identity documents. When the electricity was cut off, they decided to close the workshop and to return home. At about 9.30 a.m. they went out into Gornaya Street, along which two armoured personnel carriers (APCs) and an Ural military truck were passing. Several witnesses testified that the two men had been accompanied by servicemen, who had not been wearing masks and were described as “contract soldiers”, to one of the trucks and put into the back. The vehicles had then driven off towards Grozny, in the direction of the military checkpoint on the main road.

(b) Detention of Bekkhan Bargayev

The fifth and the sixth applicants are the mother and father of Bekkhan Sharpudinovich Bargayev, born in 1981. They lived at 8 Arsanova Street in Novye Atagi. The fifth applicant is a bookkeeper and the sixth applicant is unemployed. Bekkhan Bargayev graduated from the 11th grade of Novye Atagi school no. 2. He was described by the head of the village administration as a modest, good-natured young man, who had mostly stayed at home and had never participated in illegal activities.

According to the applicants, on 14 January 2001 Bekkhan Bargayev was washing the family car, a Zhiguli Vaz-2101, near a stream, about 300 metres from his home. At about 1.30 p.m. he saw APCs entering the village and started driving back towards home. An APC, driving at high speed, chased his car and smashed into it. Mr Bargayev was not hurt and climbed out of the car. The fifth applicant, who was at home, ran out because of the noise and the bursts of submachine-gun fire. She saw the servicemen beating her son with rifle butts and tried to intervene. The soldiers beat her, and she fell to the ground. Bekkhan Bargayev was forced into an APC with an obscured hull number and driven away. The neighbours who witnessed the scene were prevented from interfering by armed soldiers.

The families of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev have had no news of them since 14 January 2001.

The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 14 January 2001 during the daytime unidentified persons wearing camouflage uniforms and masks, armed with automatic weapons and using armoured vehicles, had arrived in the village of Novye Atagi in the Shali District, apprehended Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev and taken them away in an unknown direction.

2. Search and investigation into the “disappearances” – the applicants’ account

Immediately after the detention of their family members the applicants started to search for them. Until 16 January 2001 Novye Atagi remained sealed off, and the applicants could not travel and search for their relatives.

Most of the men detained during the sweeping operation were released within the following two days, except five men, three of them the applicants’ relatives. On 26 January 2001 the bodies of two detainees were discovered in the Novye Atagi quarry. According to the witness statements and the Memorial report, the bodies bore clear signs of torture and violent death – fingers and ears were cut off, there were scars from electric shocks, and knife and gunshot wounds.

The applicants applied to numerous official bodies, both in person and in writing, trying to find out the whereabouts and the fate of the three disappeared men. Among other authorities they applied to the departments of the Interior, to the military commanders’ offices, to the Federal Security Service, to the civil and military prosecutors at various levels, to administrative authorities and public figures, and to the OSCE mission in Chechnya. The applicants also personally visited detention centres and military bases. On 5 March 2001 the applicants completed UN Human Rights Centre individual reports about cases of forced disappearance.

The applicants received no substantive information about the fate of their family members and about investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of the letters kept by the applicants and the replies they received from the authorities.

(a) Correspondence kept by the relatives of Said-Magomed Debizov and Iznovr Serbiyev

On 19 January 2001 the first and third applicants, Zulpa Akhmatova and Taus Serbiyeva, wrote letters to the military prosecutor of Chechnya, the head of the Chechnya Administration, the military commander of Chechnya and the Special Envoy of the Russian President in Chechnya for rights and freedoms, asking for help in finding their sons.

Several weeks after the detention the first and third applicants wrote to the Prosecutor General, to the head of the Federal Security Service (FSB) and the Minister of the Interior. In the letters they recounted the details of their sons’ detention and stated that Mr Sukharev, the deputy mayor of Grozny in charge of the release of illegally detained persons, had unofficially told them that Said-Magomed Debizov and Iznovr Serbiyev had been detained at “21 Obron” (special mission brigade no. 21) and that a criminal charge had been brought against them. The applicants asked to be informed of the charges against their sons and to receive confirmation of the place of their detention.

On 1 March 2001 the applicants wrote to the member of the State Duma for Chechnya, Mr Aslakhanov, and asked for his assistance in finding their three family members.

On 2 March 2001 the Shali District Prosecutor’s Office informed the third applicant that on 20 February 2001 that office had instituted criminal proceedings (case file no. 23034) in respect of the kidnapping of Said-Magomed Debizov and Iznovr Serbiyev, and that she could review the relevant documents in that office.

On 3 March 2001 the third applicant submitted a petition to the head of the Chechnya Administration, the military prosecutor and the military commander of Chechnya to help her find her son.

On 21 March 2001 the Chechnya Prosecutor forwarded the first and third applicants’ complaint to the Shali District Prosecutor’s Office with a request to open a criminal investigation under Article 126 of the Criminal Code (kidnapping) following the “disappearance” of their two relatives after “unknown persons dressed in camouflage uniform had conducted an identity check in the village of Novye Atagi”. Similar letters were sent on 24 and 27 May 2001.

On 8 June 2001 the first and third applicants wrote to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms and the deputy head of the Shali District administration, asking for help in finding their sons.

On 9 June 2001 the Shali District Prosecutor informed the first and third applicants that on 20 January 2001 that office had instituted criminal proceedings under Article 126 of the Criminal Code into their sons’ kidnapping, and that the file had been assigned no. 23034.

On 13 March 2002 the first and third applicants requested the Shali District Prosecutor’s Office to inform them about the progress in the investigation.

On 23 April 2002 the Chechnya Prosecutor’s Office forwarded the applicants’ letter to the Shali District Prosecutor for action and requested that prosecutor’s office to transfer the investigation file to it.

On 23 August 2002 the Chechnya Prosecutor’s Office stated in reply to the applicants’ letters that it had examined the files on the investigation opened by the Shali District Prosecutor in respect of the kidnapping of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, and that the investigation had been suspended on account of the failure to identify the culprits. The district prosecutor had been instructed to reopen the investigation and to take further steps in order to identify the culprits and to establish the missing persons’ whereabouts.

On 17 September 2002 the Shali District Prosecutor informed the first and third applicants that the criminal investigation in case no. 23034 had been reopened and that they should report to the office for questioning.

On 21 April 2003 the first and third applicants asked the Shali District Prosecutor to inform them about the progress in the investigation and to grant them victim status in the proceedings.

On 12 May 2003 the Shali District Prosecutor’s Office informed the applicants that the proceedings in criminal case no. 23034 had been adjourned and reopened on two occasions. In September 2002 the investigation had forwarded a number of information requests to the military commander of the district, to all the local departments of the interior in Chechnya, to all pre-trial detention centres in Chechnya and to the FSB. These measures had produced no results and the investigation had been adjourned on 10 October 2002. The measures aimed at finding their sons would continue.

On 17 May 2003 the Shali District Prosecutor’s Office reminded the first applicant that she had been questioned and granted victim status in the criminal proceedings regarding her son’s abduction in March 2001.

On 17 May 2003 the District Prosecutor’s Office informed the third applicant that on 15 March 2001 they had questioned Iznovr Serbiyev’s wife and granted her victim status in the proceedings.

On 11 June 2003 the Shali District Prosecutor’s Office again informed the first and third applicants about the adjournment of the proceedings and the absence of relevant information from the law-enforcement authorities in Chechnya.

On 30 October 2003 the Shali District Prosecutor’s Office informed the applicants that the investigation in cases nos. 23034 and 23031 had been adjourned, but that steps aimed at finding their relatives continued to be taken. The applicants were informed of the possibility of appealing against the decisions to a higher-ranking prosecutor or to a court.

On an unspecified date in 2003 the head of the village administration of Novye Atagi, the village cadi (Islamic judge) and villagers signed an appeal to the European Court, asking for assistance in finding Said-Magomed Debizov and Iznovr Serbiyev.

(b) Correspondence kept by the relatives of Bekkhan Bargayev

The fifth applicant, Saret Yasadova, submitted that in the days immediately following her son’s detention, the military commander of the village, whose name she did not recall, had told her that Bekkhan Bargayev had been in a hospital in Khankala and that he had been “registered in a computer as an illegal fighter”.

In January 2001 the fifth applicant wrote to the Shali District Prosecutor, the military commander and the military prosecutor of Chechnya, the head of the district administration and the head of the district department of the interior, stating the circumstances of her son’s detention and asking for help in finding him.

At some point in 2001 the fifth applicant wrote to the Deputy Prosecutor General in charge of the Southern Federal Circuit and asked for assistance in finding her son.

On 3 March 2001 the fifth applicant wrote to the head of the Chechnya Administration, the military prosecutor and the military commander of Chechnya with a request to help her find her son.

On 7 March 2001 the military prosecutor of military unit no. 20102, based in Khankala, the main Russian military base in Chechnya, informed the fifth applicant that her complaint about the alleged kidnapping of her son by military servicemen had been forwarded to the military prosecutor of military unit no. 20116, based in Shali.

On 15 March 2001 the Shali District Prosecutor informed the fifth applicant that a criminal investigation (file no. 23031) had been opened into her son’s kidnapping.

On 18 May 2001 the military prosecutor of military unit no. 20116 forwarded the fifth applicant’s complaints to the Chechnya Prosecutor for further investigation, since there were no grounds to conclude that military servicemen had been involved in Mr Bargayev’s abduction.

On 23 April 2002 the Chechnya Prosecutor’s Office forwarded the fifth applicant’s letter to the Shali district prosecutor.

On 23 August 2002 the Chechnya Prosecutor’s Office stated in reply to the applicants’ letters that it had examined the files on the investigation opened by the Shali District Prosecutor in respect of the kidnapping of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, and that the investigation had been suspended on account of the failure to identify the culprits. The District Prosecutor had been instructed to reopen the investigation and to take further steps to identify the culprits and to establish the missing persons’ whereabouts.

On 30 October 2003 the Shali District Prosecutor’s Office informed the applicants that the investigation of cases nos. 23034 and 23031 had been adjourned, but that measures aimed at finding their relatives continued to be taken. The applicants were informed of the possibility of appealing against the decisions to a higher-ranking prosecutor or to a court.

The applicants referred to the report “Counterterrorist Operation” produced by Memorial, which in Chapter 9 described the sweeping operation in Atagi from 14 to 16 January 2001 and the detention of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev. They also referred to the Human Rights Watch report of March 2001 entitled “The ‘Dirty War’ in Chechnya: Forced Disappearances, Torture and Summary Executions”, which listed Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev among the victims of “forced disappearances” after their detention by the Russian servicemen.

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 February 2001 the Shali District Prosecutor’s Office opened a criminal investigation (file no. 23031) under Article 126, paragraph 2 (a) and (g), into the kidnapping of B. Bargayev, on a complaint submitted by the fifth applicant, his mother. On 10 April 2001 the investigation of the case was assigned to an operational investigative group within the prosecutor’s office.

On 15 March 2001 the fifth applicant was questioned and granted victim status in the proceedings in case no. 23031. She stated that at about 1.30 p.m. her son had been washing his car in the street near their house. The car had been hit by an APC, from which armed persons in masks had jumped out and taken her son away.

Also on 15 March 2001 the sixth applicant, the father of the kidnapped man, was questioned and granted victim status. He stated that he had not been an eyewitness to the events, but he was certain that the crime had been committed by military servicemen. He could not name the source of that information and did not submit any pecuniary claims for the damaged car.

According to the Government, within the same dates the investigation had questioned three relatives of Mr Bargayev and the head of the village administration. It had also carried out on-site examinations and taken other relevant steps. A question had been put to the local military commander.

On 13 April 2001 the investigation was adjourned on account of the failure to identify the culprits. On 23 April 2001 the investigation was resumed. In April and May 2001 the investigator forwarded requests to the Shali District Department of the Interior, asking that office to take measures to solve the crime. On 23 May 2001 the investigation was adjourned. On 23 August 2002 the investigation was resumed by the Chechnya Prosecutor’s Office. On 28 August 2002 the investigation was resumed and new information requests were sent to the “competent bodies”. On 28 September 2002 the investigation was adjourned.

On 3 June 2003 the investigation was resumed. On 1 July 2003 the investigator in charge of the case again examined the site of the crime and drew up a plan. On 15 August 2003 the investigation was adjourned. On 29 June 2005 the investigation of criminal case no. 22031 was resumed.

In the meantime, on 20 February 2001 the Shali District Prosecutor’s Office had opened a criminal investigation (file no. 23034) on a complaint by a Mrs A. about the kidnapping of her cousin S.-M. Debizov and his friend I.U. Serbiyev, also under Article 126, paragraph 2 (a) and (g).

On 2 March 2001 the first applicant was questioned and granted victim status in the proceedings in case no. 23034, concerning the kidnapping of her son S.-M. Debizov. On 5 March (or 15 March) 2001 the investigation questioned the wife of I. Serbiyev and granted her victim status in the proceedings. On 15 March 2001 the third applicant was questioned about her son’s abduction. On 29 June 2005 the third applicant was also granted victim status in the proceedings in case no. 23034.

Also on 15 March 2001 the investigation questioned three neighbours of the applicants. The witnesses stated that on 14 January 2001 at about 11 a.m. a number of unknown persons had arrived at the car repair shop where Mr Serbiyev and Mr Debizov worked and had taken them away.

On 20 April 2001 the investigation was adjourned on account of the failure to identify the culprits. On 19 September 2001 that decision was quashed and the investigation was resumed. The investigator forwarded requests for information to the local department of the interior. On 30 September 2001 he informed the fourth applicant that the investigation into his brother’s abduction had been ongoing. On 19 October 2001 the investigation was adjourned.

On 23 August 2002 the Chechnya Prosecutor’s Office examined the case file and quashed the decision to adjourn the proceedings. On 10 September 2002 the investigation was resumed. On 11 September 2002 the first and third applicants were informed about the resumption of the proceedings, and information requests were forwarded to the competent authorities. On 10 October 2002 the investigation was adjourned on account of the failure to identify the culprits. On 28 June 2005 the proceedings in case no. 23034 were reopened.

The Government submitted in their observations that on 29 June (in another document 29 September) 2005 the two criminal investigations were joined by the Shali District Prosecutor’s Office, because the crimes had been committed at the same time and the same place. The proceedings were assigned case no. 23031.

On 29 and 30 June 2005 the investigation again examined the site of the crime, questioned the third applicant and forwarded requests for information about the missing persons to the pre-trial detention centres in the Northern Caucasus. On 29 July 2005 the investigation was adjourned. On 20 August 2005 the investigation was again reopened.

The Government stated, in summary, that the investigation had questioned 11 relatives and neighbours of the abducted persons, as well as the head of the Novye Atagi administration, Mr Datsayev, who had given similar accounts of the events. None of the persons questioned had stated that Mr Debizov, Mr Serbiyev and Mr Bargayev had been ill-treated when they were apprehended.

Furthermore, the Government stated that on 27 January 2001 the Shali District Prosecutor’s Office had opened a criminal investigation (file no. 23011) following the discovery on 26 January 2001 on the outskirts of Novye Atagi of two male bodies with firearm wounds. The two men had been identified as residents of another village, Z. and Kh., who had left home in the morning of 14 January 2001 and had not been seen alive afterwards. The investigation had not obtained information to confirm that Z. and Kh. had been tortured before their deaths. The investigation was ongoing.

The Government further admitted that the investigation into the kidnapping of the applicants’ three relatives had been unable to establish their whereabouts. 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 Debizov, Mr Serbiyev and Mr Bargayev on criminal or administrative charges and had not carried out a criminal investigation in respect of any of them. The Shali 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 three men and that they had never been detained by them.

Despite specific requests made by the Court on two occasions, the Government did not submit any documents from the file in criminal case nos. 23031 and 23034, except for a copy of the list of documents contained in it. 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 the 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.

COMPLAINTS

1. The applicants submitted that the circumstances of their relatives’ detention and the absence of any news from them since 14 January 2001 gave rise to a strong presumption that they had been killed by State agents, in breach of Article 2. They also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, in violation of the 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 close relatives and the lack of an adequate response on behalf of the authorities amounted to treatment in violation of Article 3 of the Convention. They also argued that their relatives had been subjected to ill-treatment in violation of Article 3.

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 their three relatives.

4. The applicants argued that they had no access to Court, in violation of Article 6.

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

6. 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 Article 38 § 1 of the Convention.

THE LAW

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

The Government contended that the applications should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction of the applicants’ relatives had not yet been completed. They also referred to Article 125 of the Criminal Procedure Code, which allowed the participants in criminal proceedings to complain to a court about measures taken during the 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 and 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.

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 Said-Magomed Debizov, Iznovr Serbiyev and Bekkhan Bargayev, 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’ three relatives’ disappearance were under investigation. It had not been established that they had died or that State agents had been involved in their abduction. The investigation was in compliance with Article 2 of the Convention.

The applicants submitted that, since their relatives had been missing for a very lengthy period, it could be presumed that they were dead. That presumption was further supported by the circumstances in which their relatives had been detained, which should be recognised as life-threatening. The applicants contended that the detention had occurred within the context of a large-scale sweeping operation, during which the villages of Starye Atagi and Novye Atagi had been completely sealed off by the federal forces. Their relatives had been apprehended by a large group of armed persons using armoured vehicles, which had not been used by illegal armed groups and which could not move freely around the area during the operation. The applicants noted the presence of numerous military checkpoints, which would not allow the circulation of military vehicles without the forces’ knowledge and permission. The applicants further pointed out that the bodies of two men, Z. and Kh., who had been detained during the same sweeping operation, had been found later with clear signs of having suffered violent deaths.

As regards the procedural obligation under Article 2, the applicants argued that even though an investigation had been mounted into the disappearances, it was inefficient and had been unable to demonstrate any progress over a period of several years. No steps had been taken by the investigation to identify and question the possible abductors of the three men.

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 relatives had been subjected to treatment in violation of Article 3. They also argued that as a result of their close relatives’ 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 their three relatives had been subjected to unacknowledged detention and thus deprived of their 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 Debizov, Mr Serbiyev and Mr Bargayev had been deprived of their 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 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 applicants had been granted the status of victims in the criminal proceedings concerning their relatives’ abduction and had received replies to the applications they had submitted in the context of the proceedings. The investigation into the disappearances 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 relatives 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.

For these reasons, the Court unanimously

Decides to join the applications;

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

Declares the application admissible, without prejudging the merits.

Søren NielsenLoukis Loucaides
RegistrarPresident

Full & Egal Universal Law Academy