ALBEKOV AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68216/01
by ALBEKOV AND OTHERS
against Russia

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

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

Having regard to the above application lodged on 10 December 2001,

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 application was introduced by:

1) Umar Abdukhadzhiyevich Albekov, born in 1967;

2) Khusain Khamzatovich Minkailov, born in 1980;

3) Raiman Akhmedovna Uspanova, born in 1944.

The applicants were Russian nationals and lived in the village of Akhkinchu-Barzoy, Kurchaloy district, in the Chechen Republic. Mr Umar Albekov died after he had introduced the application. However, his brother, Mr Ramzan Albekov, who is also a brother of Mr Vakhazhi Albekov, expressed his wish to pursue the application.

The applicants were represented before the Court by lawyers of EHRAC/Memorial, a human rights NGO with offices in London, Moscow and the Northern Caucasus.

The respondent Government were represented by 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 are partially disputed by the parties. They may be summarised as follows.

Between March 2000 and February 2001 military unit no. 73881-2 was stationed near Akhkinchu-Barzoy, a village of about 1,000 residents.

According to the applicants, the military unit occupied land used by the residents for tillage and pasture and soldiers mined the area around the unit and in the adjacent parts of the communal forest using anti-personnel mines and, specifically, mines with a trip wire.

According to the Government, the mines in the forest were planted by illegal armed gangs.

In statements submitted by the applicants, the head of the local administration and other residents alleged that since March 2000 there had been several incidents in which cattle and people had been injured by the mines. The head of the administration stated that he had asked the military to remove the mines from the lands used by the villagers but that the incidents had continued.

According to the Government, the population of Akhkinchu-Barzoy was regularly warned by the military that there were mines laid by armed gangs in the forest. They said that the minefield around the military unit was marked.

1. Disappearance of Vakhazhi Albekov and the search for him

On 23 October 2000 at about 2 p.m. the first applicant’s brother, Mr Vakhazhi Albekov, born in 1969, went to the meadow to collect the family’s cattle from a field situated about 500 metres away from the village. He was wearing a black jacket with a hood, a black sweater, blue sports trousers and black rubber boots. At about 3 p.m. another villager, Mr B., met Mr Vakhazhi Albekov in the meadow and the latter told him that he was going north to collect the calves. As a rule it took a very short time to collect the cattle and return, and at 4 p.m. his family became concerned.

At about the same time another resident of the village, Mr M., was in the southern part of the pasture and heard an explosion somewhere to the north. He was scared and decided to return home along the road. On the road he was fired at by soldiers returning to the military unit, but escaped unharmed.

After 4 p.m. relatives and neighbours of Mr Vakhazhi Albekov decided to search for him. They broke up into small groups and searched the pasture and a short way into the forest, shouting out his name. At about 10 p.m. they decided to report his disappearance to the military unit and to ask for assistance. The first applicant’s sister, along with the head of the village administration, Mr E., and two other neighbours, went to the location of the military unit. Only Mr E. was allowed to enter and a serviceman informed him that they had no news of Mr Albekov and that they had not detained anyone.

On the morning on 24 October 2000 Mr E. went to the district centre of Kurchaloy and reported Mr. Albekov’s disappearance to the district authorities – the police station, the military commander and the head of the administration.

At the same time villagers continued to search for Mr Vakhazhi Albekov in the pasture and in the forest. At about 2 p.m. the second applicant and Mr G. found Mr Albekov’s body in a pit in the forest about 30 metres away from the road and about 300 metres from the military unit. The body was lying face down, and the upper part of the body had been disfigured by an explosion. The two men noticed remains of some tape on the body and recognised the clothes he had been wearing. Nearby they found his passport, which was intact. They also noted footprints made by military boots on the ground leading towards the military unit. They did not touch the body as they were afraid that it was mined.

At about 3 p.m. on the same day the first applicant and another villager went to the military unit with a request to provide sappers who could check if the body had been mined. The military refused and suggested that they should seek help in Kurchaloy. While waiting at the barrier of the military unit for an answer, the first applicant heard an explosion from the north-eastern part of the forest. Later they learnt that it was an explosion which had injured Mr I. and Mr Khasayn Minkailov.

After the refusal of the military to help retrieve Mr Albekov’s body, the residents decided to recover it themselves. They tied a long rope to his leg and pulled the body from a distance of 30-40 metres. Mr Vakhazhi Albekov was buried on 25 October 2000 in the village cemetery. His relatives did not seek medical or other professional examination of the body before burial.

2. Khasayn Minkailov and I.

The villagers searching for Mr Vakhazhi Albekov on 24 October 2000 divided up into several small groups. At about 3.30 p.m. one such group, consisting of Mr Khasayn Minkailov, born in 1982, the second applicant’s brother, and Mr I., were blown up by a booby trap mine in the forest. The sound of that explosion was heard by the first applicant, who was at the gate of the military unit.

Mr I., who was injured on the right side of his body and in both legs, managed to reach a roadblock near the village of Dzhugurta, which is about three kilometres from Akhkinchu-Barzoy. The soldiers stopped a passing car, and the driver, who happened to be a resident of Akhkinchu-Barzoy, took Mr I. home. Mr I. told the other villagers that they had been blown up by a mine and that Mr Khasayn Minkailov had been seriously injured by the same blast and had lost a leg. The head of the local administration again appealed to the military unit, asking them for sappers and for medical assistance. The military refused to send sappers, but a military doctor attended Mr I. at his home at about 4 p.m. and gave him first aid. He did not issue any medical documents in respect of Mr I.’s injuries.

3. Search for Khasayn Minkailov, Nokha Uspanov and Sh. M.

When the residents of the village were informed by Mr I. that Mr Khasayn Minkailov was seriously injured, they immediately went to look for him. They again broke up into small groups and entered the forest. Two cousins of Mr Khasayn Minkailov, Mr Nokha Uspanov, born in 1973, the third applicant’s son, and Mr Sh. M., volunteered to check the most dangerous places such as ravines, pits and abandoned dugouts. While checking a dugout in the north-eastern part of the forest, Mr Nokha Uspanov was blown up by a mine. Mr Sh. M. rushed to his aid and was blown up too. As a result each of them received serious injuries to their right legs, which were later amputated in hospital. Two of Mr Nokha Uspanov’s fingers were also seriously injured and later had to be amputated. His left leg was fractured. Other residents brought them to the village, where they were attended by Dr Ramzan Albekov, the first applicant’s brother.

On the morning of 25 October 2000 Mr Nokha Uspanov and Mr Sh. M. were taken by their relatives to a hospital in Kurchaloy where they were operated on the same day. Mr Uspanov’s right leg was amputated at shin level and two fingers on his right hand were also amputated; Mr Mezhiyev’s right leg was amputated at ankle level. They remained in hospital until 21 November 2000.

On the morning of 25 October 2000 the head of the village administration, together with residents of Akhkinchu-Barzoy and Dzhugurty villages, again went to the military unit and asked for sappers in order to find Mr Khasayn Minkailov and to prevent further casualties. This time the commander of the military unit ordered an armoured personnel carrier (APC) and about ten sappers to assist the villagers. The sappers had a map of the area, presumably indicating minefields. They used it to reach the body of Mr Khasayn Minkailov, who was dead by that time. His left leg had been torn away by the blast and he had other injuries. With the help of the military the body was brought to his home in Akhkinchu-Barzoy. He was buried on 26 October 2000 in the village cemetery. His relatives did not contact any medical personnel or authorities before the burial.

4. Subsequent events and progress of the investigation

According to the applicants, on 25 October 2000 a group of officials arrived at Akhkinchu-Barzoy. They included persons from the Kurchaloy district police, the military commander’s office and the prosecutor’s office. Accompanied by the local residents, they filmed the site where Mr Vakhazhi Albekov’s body had been found. They also visited Mr Albekov’s home, where they took photographs and filmed the body. They also questioned a number of witnesses who had participated in the search and retrieval of the body. The officers drew up a report on Mr Vakhazhi Albekov’s sweater and an axe he had been carrying to protect himself in case of an attack by wild animals. None of the witnesses recalled signing any papers or statements.

The officers assured Mr Ramzan Albekov, the first applicant’s brother, that a criminal investigation would be conducted into the circumstances of the deaths. They told him the name of the prosecutor responsible for the case in the district prosecutor’s office. The first applicant submitted that after his brother’s funeral, Mr Ramzan Albekov, who worked in Kurcahloy Hospital, had tried to meet the prosecutor on eight occasions but each time had been denied access to the building on the ground that the prosecutor was absent.

The first applicant’s sister, Petimat Albekova, also tried at some stage to inquire about the investigation into her brother’s death. She submitted that a prosecutor had shouted at her and turned her out of his office. The first applicant and his family made no further attempts to inquire about the investigation.

On 10 December 2000 an official of military unit no. 73888-2 issued a certificate to Mr Nokha Uspanov confirming that he had received a blast injury while looking for cattle near the village of Akhkinchu-Barzoy.

On 11 December 2000 the head of the village administration issued a note which contained the following account of the events of
22-25 October 2000:

“At about 2 p.m. on 22 October 2000 a resident of Akhkinchu-Barzoy, Vakhazhi Albekov, born in 1969, went out to look for his cattle and did not return. The whole village went out to look for him. By 7 p.m. the search had produced no results and we applied to the headquarters of the federal forces, who denied any knowledge of him. The following day in the morning we applied to them again, because the pastures and forest around are mined. By 11 a.m. on 23 October we were told that Albekov had been found dead at the edge of the village, blown up by a TNT block. On 24 October we notified the district police authorities, who came and started a criminal investigation.

Khasayn Minkailov, born in 1982, who went out to search for Albekov on 23 October, did not come back to the village. Another man who was with him, [I.], informed the villagers that [Minkailov] was seriously wounded; meanwhile [I.], also seriously wounded, got to the road near the village of Dzhugurty, from where he was brought back by another resident.

Another group of villagers went out to look for Minkailov, knowing that he had been seriously injured and needed help. Nokha Uspanov and [Sh. M.] went by a separate path, hoping to be the first ones to reach him. They stated later that first Nokha Uspanov was blown up by a mine, and then [Sh. M.], trying to reach him. Another group took them home, where they were given first aid by the village doctor.

For the third time I asked the federal forces for help, but at the roadblock they told me that they could not send sappers and reconnaissance groups, as they were busy. On 25 October I asked them again, and finally they provided an APC and a group of sappers, who found Minkailov already dead and brought his body home.”

According to the second applicant, he was not questioned by any investigators about the circumstances of his brother’s death. However, in January 2001, during a “sweeping” operation in Akhkinchu-Barzoy, he and several other men from the village, including Mr Nokha Uspanov, were detained by Russian soldiers, beaten up and questioned about the circumstances of his brother’s death. The second applicant was also asked if he had complained anywhere about the incident, and replied in the negative. He was released one day later, and was scared to apply to any officials afterwards.

The third applicant submitted that her son, Mr Nokha Uspanov, had remained in hospital for a month after the injury sustained on 24 October 2000. His right leg was operated on twice, because after the first amputation his wound had become infected. After being discharged from hospital her son remained at home, suffering from severe pain and requiring constant care for several weeks. On 11 January 2001 Mr Nokha Uspanov, along with a few other men from the village, was detained by soldiers during a “sweeping” operation. The applicant had no news of her son for several weeks, despite having personally visited the military commander’s office, the local administration and other authorities. At the end of January 2001 her son’s body was discovered on the outskirts of the village of Bachi-Yurt. The third applicant submitted that her other son, Ruslan Uspanov, born in 1964, had been killed in the summer of 2001. She further submitted that after January 2001 she had not applied to any authorities in relation to the events of October 2000, because she had been afraid and had not trusted any officials.

On 29 January 2002 the Kurchaloy district civil registry office issued death certificate no. 23 in respect of Mr Vakhazhi Albekov, stating that he had died in Akhkinchu-Barzoy on 22 October 2000.

According to the Government, until July 2004 no applications for institution of criminal proceedings were submitted by relatives of the deceased persons to the prosecutor’s offices of the Chechen Republic. After the receipt on 12 July 2004 of unspecified materials concerning the explosions, the Kurchaloy District Prosecutor’s Office conducted an inspection. On 22 July 2004, having regard to the results of the inspection, the district prosecutor’s office refused to institute criminal proceedings on the ground that there was no indication that a crime had been committed.

On 24 July 2004 a lawyer of the NGO Memorial wrote to the Kurchaloy District Prosecutor’s Office and asked for an update on the criminal investigation into the death of Mr Vakhazhi Albekov. No reply was received. In August 2004 the head of the village administration was visited by some officers from the district police station. He was questioned about the circumstances of the events of 23-25 October 2000, but was not asked to sign any papers.

The Government submitted the following information on the subsequent progress of the investigation.

On 5 March 2005 the decision of 22 July 2004 not to institute criminal proceedings was quashed by the district prosecutor. However, on 9 March 2005, following the results of an additional inspection, another decision was given refusing the institution of criminal proceedings.

On 10 March 2005 the Prosecutor’s Office of the Chechen Republic quashed the decision of 9 March 2005 refusing the institution of criminal proceedings. On the same date criminal investigation no. 54007 was instituted into the death of Mr Vakhazhi Albekov. On 11 March 2005 criminal investigation no. 54008 was instituted into the death of
Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov, Mr Sh. M. and Mr I. The Kurchaloy District Prosecutor’s Office was in charge of the investigations.

On 12 March 2005 an inspection of the crime scene was carried out. In the course of the inspection an unspecified metal fragment was seized. It was later examined together with unspecified explosives. In addition, at the prosecutor’s request, the Shalinskiy District Court ordered the exhumation of the dead bodies of Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov. However, the order could not be enforced because the relatives of the deceased persons objected to the exhumation. A forensic examination was then conducted on the basis of the medical documents available. According to the results of the examination, the injuries sustained by Mr Nokha Uspanov and Mr Sh. M. were described as serious.

On the same date Ms Kh. A., the sister of Mr Vakhazhi Albekov, was granted the status of victim in the criminal proceedings and questioned. She confirmed that on 23 October 2000 her brother had gone to the meadow to collect the cattle from the field and had been killed by an explosion not far from the village. In the course of the search for him other villagers had been injured in similar circumstances. Neither she nor her relatives had lodged any complaints with the law-enforcement bodies in connection with the events and she did not consider her rights to have been breached.

Also on 12 March 2005 the father of Mr Nokha Uspanov and the brother of Mr I. were granted the status of victims in the criminal proceedings. Mr Uspanov’s father stated that on 23 October 2000 his son had gone to search for Mr Vakhazhi Albekov and had been injured by an explosive device. He had not filed any complaints with the law-enforcement agencies in this respect. Mr I.’s brother stated that transport and sappers to evacuate the victims had been provided by the military unit stationed near the village. Neither he nor his relatives had filed any complaints with the law-enforcement agencies in connection with the incidents.

The third applicant, Mr Nokha Uspanov’s cousin and Ms P. A., another sister of Mr Vakhazhi Albekov, were questioned on the same date.

On 14 March 2005 Mr Khasayn Minkailov’s cousin was granted the status of victim in the criminal proceedings and questioned. He made a statement similar to those of Mr Nokha Uspanov’s father and Mr I.’s brother.

On an unspecified date several residents of the village of Akhkinchu-Barzoy were questioned. They stated that all the villagers had been aware of the mines laid by members of the illegal armed gangs.

On 13 and 15 March 2005 respectively Mr T., head of the village administration and the village’s imam were questioned. They stated that the servicemen had warned the villagers about the mines laid near the village. Mr T. submitted that between 1996 and 2000 a lot of cattle had died because of the explosives, which could have been planted by members of illegal armed gangs headed by Salman Raduyev and other persons. He further submitted that since the beginning of his term of office as head of the village administration he had had good relations with the command of the military unit. The servicemen helped the villagers a lot.

On 21 March 2005 the village imam’s assistant was questioned. He submitted that Mr Khasayn Minkailov’s father objected to having his son’s dead body examined and photographed.

It had not been possible to question Mr Nokha Uspanov because of his subsequent death or Mr I. because he had moved to Germany permanently, although the Prosecutor’s Office of the Chechen Republic had requested the German authorities to take certain investigative measures in respect of Mr I. Nor had it been possible to question Mr M. Sh., as he and his relatives had left the Chechen Republic. However, certain steps to establish his whereabouts had been taken.

The investigative authorities had requested the competent bodies to provide information concerning the laying of mines near the village of Akhkinchu-Barzoy. According to the military commander’s office, there was no information to support the assumption that the mines had been laid by the federal forces. The involvement of representatives of the federal forces in the incident was therefore not established. Mr Vakhazhi Albekov had been blown up on land occupied by the military unit which had previously been “abandoned by the members of illegal armed formations”. Mr Khasayn Minkailov, Mr Nokha Uspanov, Mr Sh. M. and Mr I. had been blown up while they had been searching for Mr Albekov in the forest where members of the illegal armed gangs had laid mines.

The investigation was being conducted under the supervision of the Prosecutor General’s Office and the persons granted the status of victim were being informed of all the decisions taken.

Despite specific requests made by the Court on two occasions, the Government did not submit copies of any documents from the investigation files concerning the deaths of Mr Vakhazhi Albekov and Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov. 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 first applicant complained under Article 2 of the Convention about the death of his brother, Mr Vakhazhi Albekov. He submitted that there was strong and compelling evidence that Mr Vakhazhi Albekov had been deliberately blown up by the Russian military.

2. Referring to the case of Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, the second and the third applicants submitted that the respondent State had failed to comply with its positive obligations under Article 2 of the Convention. They submitted that Mr Khasayn Minkailov and Mr Nokha Uspanov had been blown up by mines laid by the Russian military. Furthermore, the military authorities, after Mr Vakhazhi Albekov’s disappearance, should have assisted in finding his body, in particular by sending sappers or giving the villagers a map of the minefields. In their opinion, the authorities had known or should have known at the time of the existence of a real and imminent risk to the life of individuals and had failed to take measures within the scope of their powers to prevent the risk from materialising.

3. The applicants claimed that the authorities had failed to carry out an effective investigation into the deaths of Mr Vakhazhi Albekov and Mr Khasayn Minkailov and the injuries sustained by Mr Nokha Uspanov, in breach of Article 2 of the Convention.

4. The applicants complained that they had had no effective remedies in respect of the alleged violations of Article 2 of the Convention, contrary to the provisions of Article 13.

THE LAW

A. Locus standi

The Court notes firstly the fact of Mr Umar Albekov’s death and the wish of his brother, Mr Ramzan Albekov, to pursue the proceedings he initiated.

The Court reiterates that, where an applicant dies during the examination of a case, his or her heirs or next of kin may in principle pursue the application on his or her behalf (see Jecius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX). The Court considers that the applicant’s brother has a legitimate interest in pursuing the application in his stead.

B. The Government’s objection concerning non-exhaustion of domestic remedies

The Government contended that the applicants had failed to exhaust available domestic remedies because they had not brought any complaints concerning the actions of the law-enforcements officials in connection with the investigations into the deaths and injuries of their relatives.

The applicants claimed that the Government had not provided the Court with any evidence of the effectiveness of the remedy referred to. They contended they had no effective domestic remedies to exhaust.

The Court considers that the Government’s objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicants’ complaints and that it would be inappropriate to determine it at the present stage of the proceedings.

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

C. Merits of the application

1. The applicants complained under Articles 2 of the Convention that Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov had been blown up by landmines, in breach of their right to life, and that the authorities had failed to conduct a proper investigation in this respect. 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 representatives of the federal forces had not violated the right to life of Mr Vakhazhi Albekov, Mr Khasayn Minkailov and Mr Nokha Uspanov. Mr Vakhazhi Albekov had been blown up on land occupied by the military unit which had previously been “abandoned by the members of illegal armed formations”. Mr Khasayn Minkailov and Mr Nokha Uspanov had been blown up while they had been searching for Mr Albekov in the forest, where explosive devices had also been planted by members of the illegal armed gangs.

Furthermore, the authorities of the Russian Federation had complied with their positive obligations under Article 2 of the Convention. The applicant’s allegations that the authorities had taken no measures to prevent the explosions were unfounded. The residents of Akhkinchu-Barzoy had been regularly warned by the command of the military unit about the mines planted in the forest by rebel fighters. Minefields around the military unit had been marked. Servicemen, sappers and transport had been provided for the search of Mr Vakhazhi Albekov and others. The dead body of
Mr Khasayn Minkailov had been found and transported to his relatives by the servicemen themselves. The investigation into the incidents was pending. All the necessary investigative measures were being taken.

The applicants contested the Government’s submissions. They noted, firstly, that the Government had submitted no evidence to support their statement that representatives of federal forces had not been involved in the laying of the mines. The contention that the mines had been planted by illegal armed gangs was unsubstantiated since at the time there had been no rebel activity in the district. Furthermore, Mr Khasayn Minkailov’s body had been found with the help of the sappers from the military unit who had consulted their map in order to move in safe parts of the area, which proved that the mines had been laid by the federal forces. As to the death of
Mr Vakhazhi Albekov, the applicants alleged that he had been intentionally killed by servicemen, as evidenced by the tape found on his body, which must have been used for tying him up, and by the footprints made by tarpaulin boots in the mud which led from the body to the military unit.

The applicants further submitted that, even if the mines had been planted by rebel fighters, the State had not complied with its positive obligation under Article 2 in any case. The Government did not deny that they had been aware that the mines had been laid in the area. However, they had taken no steps to (i) locate and deactivate the mines; (ii) physically seal off the area to prevent anybody from entering the minefield; (iii) mark the area with warning signs; (iv) provide written and oral warnings to the residents concerning the area as a whole and the location of the mines; (v) provide permanent availability of sappers and medical experts. The applicants maintained that the Government’s contention that the mined area had been marked was untrue. The villagers had never been warned of the existence of the mines, let alone of their location. No signs had been placed and no information had been circulated designed to minimise the risk of being blown up. Furthermore, not only had the authorities failed to take the above measures, they had also refused the villagers’ requests for help following Mr Vakhazhi Albekov’s disappearance in order to prevent further injuries during the search.

In so far as the adequacy of the investigation in concerned, the applicants referred to Öneryıldız v. Turkey [GC], no. 48939/99, §§ 93-94, ECHR 2004‑XII, where the Court held that in cases where “lives ha[d] been lost as a result of events occurring under the responsibility of the public authorities ... the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue.” They noted that the local authorities had immediately become aware of the incidents. In particular, after Mr Vakhazhi Albekov had been blown up, a group of officials from the district police, the prosecutor’s office and the military commander’s office had arrived at the crime scene the next day. However, the investigation into the incidents had been instituted with a delay of almost five years, which drastically diminished the chances of obtaining any tangible results.

With regard to the investigative measures that had been taken, the applicants submitted the following. The statement of Mr T. was irrelevant since he had not held the office of head of the village administration at the time of the events. However, Mr. E., who had held this post at the relevant time, was never questioned. No servicemen from military unit no. 73881-2 were questioned either. As to the alleged refusal of the relatives of the deceased person to allow the exhumation of their bodies, the applicants submitted, firstly, that where an exhumation was ordered by a court the relatives’ consent was not required. Furthermore, in his statement made in March 2005 Mr Ramzan Albekov clearly stated that he had no objections to the exhumation of his brother’s body. In any event, an exhumation conducted several years after death would hardly render any tangible results. Similarly, the inspection of the crime scene conducted on 12 March 2005, that is, almost five years after the events had occurred, was pointless. Overall, the investigation was manifestly inadequate.

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 under Article 13 of the Convention that they had no effective remedies in respect of the alleged violations of Article 2 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, as required by Article 13 of the Convention. However, they had not applied to the law-enforcement bodies. Furthermore, relatives of the deceased persons had objected to the exhumation, which considerably impeded the conduct of the investigation. Moreover, the applicants had not brought any complaints concerning the actions of officials of the law-enforcements bodies in connection with the investigations into their relatives’ deaths and injuries.

The applicant contested the Government’s submissions. With regard to the alleged objections to the exhumation, they referred to their submissions relating to Article 2 above. As to the complaints concerning the activity of the investigative officials, they claimed that the Government had not provided the Court with any evidence of the effectiveness of the remedy referred to. They insisted that they had no effective domestic remedies in relation to their complaints.

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

Declares the application admissible, without prejudging the merits, and joins to the merits the Government’s objection concerning the non-exhaustion of domestic criminal remedies in so far as it relates to the pending investigation.

Søren NielsenChristos Rozakis
Registrar President

 

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