ASTAMIROVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27256/03
by Rumisa Zayndyevna ASTAMIROVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 13 March 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 11 July 2003,

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

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

Having deliberated, decides as follows:

THE FACTS

The applicants are relatives. They are:Ms Rumisa Zayndyevna Astamirova, born in 1978;Ms Zoya Khamzatovna Astamirova, born in 1944;Ms Roza Zayndyevna Astamirova, born in 1970;Ms Petimat Shaitovna Algiriyeva, born in 1976;Ms Kheda Aslanbekovna Algiriyeva, born in 2001;Ms Dinara Aslanbekovna Algiriyeva, born in 2003;Ms Raisa Zayndyevna Astamirova, born in 1968.

They are Russian nationals and live in the village of Gekhi, in the Urus-Martan district of Chechnya. They are represented before the Court by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Detention of Aslanbek Astamirov

The first, the third and the seventh applicants are sisters of Aslanbek Zayndyevich Astamirov (born in 1974). The second applicant is Aslanbek Astamirov’s mother. The fourth applicant is his wife, and the fifth and sixth applicants are their minor daughters (the sixth applicant was born in March 2003). The seventh applicant is deaf mute. The applicants submitted that their relative Aslanbek Astamirov had suffered from TB for the previous seven years and that he had been in need of regular medical assistance.

The applicants live in their own house of six rooms at 45 Sheripova Street in the village of Gekhi, in the Urus-Martan district. In the same courtyard there is another house, owned by the family of Aslanbek Astamirov’s brother, Alkha A.

According to the applicants’ submissions, on 5 August 2002, around 3 a.m., a group of about thirty masked men in blue camouflage uniforms forcibly entered the applicants’ house. The applicants believed that they were servicemen, as they were armed with machine-guns and spoke Russian without an accent. The servicemen did not produce identity papers or any documents to justify their actions and gave no explanations.

The fourth applicant submitted that she had been sleeping in the room with her husband, Aslanbek Astamirov, and their minor daughter, the fifth applicant. The first applicant, Aslanbek Astamirov’s sister, and her two minor daughters had been in another room, and the second and seventh applicants had been sleeping in another room.

The fourth applicant submitted that she had been awoken at 3 a.m. by the sound of Russian being spoken in their courtyard. Then the door to their room opened and four or five men in camouflage and masks, armed with automatic weapons, rushed into the room. They cried “Lie down” and went to the fourth applicant’s husband. One of the servicemen pushed the fourth applicant to the wall and she fell down. Another serviceman gave her the crying child and ordered her to calm her down and to remain seated.

The men tied Aslanbek Astamirov’s hands behind his back and escorted him out of the room. They took along his slippers, trousers and a shirt. Two men remained in the room and searched it, but did not take anything. One of them found Aslanbek Astamirov’s passport and took it along. Then the fourth applicant was permitted to come out of her room and into the courtyard, where she saw her sisters-in-law and mother-in-law. The servicemen were leaving and told them to be quiet. About five minutes later the electricity went off in the village and the applicants returned to the house. They submitted that the intruders had remained in their house for about twenty to twenty-five minutes.

The first applicant submitted that about five minutes after the men and her brother had left they had heard the sound of a military Ural truck leaving from the direction of the main road. They did not follow the armed men into the street because there was no electricity and because they were afraid.

The applicants submitted that the following morning the neighbours told them that they had seen an armoured personnel carrier (APC) and a military all-terrain UAZ vehicle in the village. They also submitted that both exits from the village on the main road were controlled by the Russian military and that there was a curfew in place, so no movement of vehicles or of such a large group was possible without the knowledge of the personnel at the roadblocks. The applicants submitted a copy of the published order of the Urus-Martan district military commander no. 263 of 25 September 2001 by which a curfew had been established in the district between 8 p.m. and 6 a.m.

The applicants have had no news of Aslanbek Astamirov since 5 August 2002.

The Government in their observations did not challenge most of the facts as presented by the applicants. They stated that it had been established that on 5 August 2002 at about 3 a.m. unidentified men wearing camouflage uniforms and armed with automatic weapons had entered the applicants’ house and taken Aslanbek Astamirov away to an unknown destination. His whereabouts could not be established. The Government objected to the term “servicemen” used by the applicants, because, in their opinion, there were no grounds to believe that the persons who had apprehended Mr Astamirov had been servicemen of the Russian Federation.

The Government also disputed the applicants’ reference to the presence of military vehicles on that night. They argued that the statements collected during the investigation from the victims of and witnesses to the crimes had not mentioned military vehicles. The Government did not submit copies of any of the statements to which they referred (see below).

2. The applicants’ search for Aslanbek Astamirov

Immediately after Aslanbek Astamirov’s abduction the applicants started to look for him. In the morning of 5 August 2002 the first and second applicants, accompanied by Alkha A. and another man, went to Urus-Martan. They approached the district military commander’s office, the head of the district administration and other authorities, but did not find out anything about the abductee. After that for about two weeks the applicants and their relatives continued to travel daily to Urus-Martan in the hope of finding out about Aslanbek Astamirov, but also in the hope that he would be released because, as the first applicant submitted, they had been certain that he had been detained by mistake. The first applicant also submitted that they had been afraid to ask for the opening of a criminal investigation because they thought it could have harmed her brother. According to the first applicant, they only submitted an application to the prosecutor’s office two weeks after the arrest.

On numerous occasions, both in person and in writing, the applicants applied to prosecutors of various levels, to the Ministry of the Interior, to the administrative authorities and public figures. The first applicant went to look at unidentified bodies found in Urus-Martan and in Grozny on several occasions. In the letters to the authorities the applicants stated the facts of Mr. Astamirov’s disappearance and asked for assistance and details of the investigation. Most of these enquiries remained unanswered, and the rest received only formal replies by which the respective requests were forwarded to various prosecutors’ offices “for examination”. The applicants did not retain copies of all the letters, especially during the first months following the apprehension, but they submitted a number of them to the Court. Below is a summary of their correspondence with the authorities.

On 10 November 2002 the second applicant wrote to the Prosecutor General’s Office, to the South Federal Circuit Department of the Prosecutor General’s Office, to the military prosecutor of Chechnya, to the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus (Национальная общественная комиссия по расследованию правонарушений и соблюдению прав человека на Северном Кавказе) and to the member of the State Duma for Chechnya. She stated the details of her son’s disappearance and asked for assistance in finding him. She stressed that Aslanbek Astamirov had suffered from TB and was in need of medical help. She mentioned that she had applied to the Urus-Martan district prosecutor’s office but that she had received no news about the missing man.

On 20 November 2002 the Urus-Martan district prosecutor’s office forwarded the second applicant’s complaint to the Urus-Martan district department of the interior (ROVD) for a check.

On 2 and 16 December 2002 the South Federal Circuit Department of the Prosecutor General’s Office forwarded the second applicant’s letters to the Chechnya prosecutor’s office.

On 6 December 2002 (or on 1 January 2003 – see below) the Urus-Martan district prosecutor’s office opened criminal investigation file no. 34001 into the abduction of Aslanbek Astamirov on 5 August 2002 by unidentified armed persons wearing camouflage uniforms and masks. An investigation was opened into kidnapping committed by a group under Article 126 part 2 of the Criminal Code.

On 12 December 2002 the Urus-Martan district prosecutor’s office summoned Maret T., the wife of Alkha A., for questioning as a witness.

On 16 December 2002 the member of the State Duma for Chechnya replied to the second applicant and assured her that he would take all steps to help her find her son.

On 25 December 2002 the military prosecutor of the North Caucasus military circuit forwarded the second applicant’s letter to the military prosecutor’s office of the United Group Alignment (UGA).

On 13 January 2003 the first applicant was granted victim status in the criminal investigation into her brother’s abduction.

On 20 January 2003 the second applicant wrote to the Urus-Martan district military commander and asked for his assistance in finding her son.

On 20 January 2003 the military prosecutor of military unit no. 20102 (based in Khankala, the main Russian military base in Chechnya) informed the second applicant that the investigation should be conducted by the local district prosecutor’s office, unless it had been established that the servicemen of the Ministry of Defence or of the Interior Troops of the Ministry of the Interior had been implicated in the crime.

On 30 January 2003 the Chechnya prosecutor’s office informed the second applicant that criminal investigation no. 34001 into her son’s abduction had been opened by the Urus-Martan district prosecutor’s office on 6 December 2002 and that she should address her queries there.

On 31 January 2003 the second applicant wrote to the head of Chechnya Administration, to the Urus-Martan district prosecutor and the military commander, and to the Chechnya prosecutor. She made reference to her previous attempts to find out the fate of her son and asked for assistance in finding him.

On 4 February 2003 the second applicant wrote to the deputy head of the Chechnya administration and to a member of the State Duma, Mr Yushenkov, asking for help in finding her son.

On 6 February 2003 the Chechnya prosecutor’s office forwarded the second applicant’s letter to the Urus-Martan district prosecutor’s office.

On 28 February 2003 the office of the Chechnya Government informed the second applicant that her letter had been forwarded to the military prosecutor of the UGA and to the Chechnya prosecutor’s office.

On 7 April 2003 the first applicant asked the Urus-Martan district prosecutor’s office to provide her with an update of criminal investigation no. 34001 into her brother’s abduction.

On 3 June 2003 the Chechnya prosecutor’s office forwarded a complaint by the fourth applicant about the inefficiency of the investigation into her husband’s abduction to the Urus-Martan district prosecutor’s office and instructed them to inform the Chechnya prosecutor’s office about the investigation.

On 4 June 2003 the SRJI, acting upon the first applicants’ behalf, wrote to the Urus-Martan district prosecutor and asked him for news about the progress of the proceedings.

On 20 June 2003 the Urus-Martan district prosecutor’s office informed the SRJI that on 1 March 2003 the investigation in criminal case no. 34001 had been suspended due to failure to identify the culprits. The letter also stated that the ROVD had been instructed to take “more active measures” to solve the crime.

On 29 September 2003 the first applicant wrote to the Urus-Martan district prosecutor’s office and asked him to grant her access to case file no. 34001.

On 14 November 2003 the SRJI, on the first applicant’s behalf, asked the Urus-Martan district prosecutor’s office to update them about the investigation in criminal case no. 34001 and, if it had remained suspended, to resume it.

On 17 December 2003 and on 6 January 2004 the Chechnya prosecutor’s office informed the SRJI, in identical letters, that the criminal investigation into Aslanbek Astamirov’s abduction had been opened by the Urus-Martan district prosecutor’s office on 1 January 2003 and then suspended on 1 March 2003. On 15 December 2003 the investigation had been reopened and all the necessary steps to find Mr. Astamirov and to identify the culprits taken.

On 16 February 2004 the SRJI requested the Chechnya and the Urus-Martan prosecutors’ offices to clarify if the criminal investigation into the abduction of Aslanbek Astamirov had been opened on 6 December 2002 or on 1 January 2003. They also asked them to inform them about the progress of the investigation.

On 23 June 2005 the SRJI, acting on the second applicant’s behalf, asked the Urus-Martan prosecutor’s office to give them information about the date on which the criminal investigation had been opened, to inform them about the progress of the proceedings and to allow the second applicant, as a victim, to access the case file.

On 12 July 2005 the Urus-Martan prosecutor’s office informed the second applicant and the SRJI that the investigation into the crime was ongoing and that she could access the case file at the district prosecutor’s office.

The applicants submitted that they received no further information about the investigation into Aslanbek Astamirov’s abduction and that they were not aware of the exact date on which the case had been opened.

The applicants submitted that as a result of the severe stress following her son’s disappearance the health of the second applicant had deteriorated significantly and that she had often been forced to remain in bed.

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.

The criminal investigation into Mr Astamirov’s abduction had been opened on 1 January 2003 by the Urus-Martan district prosecutor’s office.

The first applicant had been questioned by the investigators on 13 January 2003, and then again on unspecified dates. On 13 January 2003 she had been granted the status of a victim in the criminal proceedings related to her brother’s abduction. According to the Government, the first applicant stated that she and other family members had not been subjected to violence and that no valuables had been taken from the house. She also stated that they had not seen the vehicles used by the abductors.

Furthermore, the Government stated that on 28 July 2005 the investigators had questioned and granted victim status to the second applicant, the mother of Aslanbek Astamirov. According to the Government, she stated that she had not applied to the law-enforcement bodies for several months because they had been hoping that her son would come back. She also stated that the abductors had not damaged the door to the house and had not fired any shots.

According to the Government, the fourth applicant was questioned on 9 January 2003. She stated that on 5 August 2003 at about 3 a.m. unknown armed and masked men had burst into their house and taken away her husband. He had been allowed to dress. No valuables had been taken.

The Government also stated that on 10 January 2003 Markha T., Aslanbek Astamirov’s sister-in-law, had been questioned and confirmed the latter’s abduction.

The Government submitted that in March and April 2006 the investigators had questioned at least seven of the applicants’ neighbours who had stated that on the night in question they had seen a group of armed and masked men walking down Sheripova Street. They had not seen any special vehicles or cars around. Later they had learnt of Aslanbek Astamirov’s abduction.

Also in April 2006 the investigators questioned the former head of administration of Urus-Martan district. He stated that he had received a lot of inquiries from relatives of missing persons, but he could not recall the applicants’ case.

According to the Government, the investigators also requested information about Mr Astamirov’s disappearance from various State authorities. On 19 December 2003 the Urus-Martan district department of the Federal Security Service stated that their office had not detained Mr Astamirov or carried out a criminal investigation into his activities. The Ministry of the Interior of Chechnya also replied, on an unspecified date, that their agents had not detained the applicants’ relative and had not carried out any investigation in respect of him. Also on unspecified dates all the district departments of the interior in Chechnya informed the investigation that they had never detained or delivered Aslanbek Astamirov to a temporary detention ward. On 4 February 2006 the remand centre in Chechnya IZ-20/1 informed the investigation that the missing man had never been detained there.

The investigation failed to establish the whereabouts of Mr Aslanbek Astamirov. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of the “special branches” (специальных подразделений) in the crime. The law enforcement authorities of Chechnya had never arrested or detained Mr Astamirov on criminal or administrative charges and had not carried out a criminal investigation in his respect. No special operations had been carried out in respect of the applicants’ relative.

The Government also noted that the investigation had found no grounds to support the fourth applicant’s allegations that she had been ill-treated during the arrest of her husband.

As to the applicants’ complaint about inability to access the case file, the Government noted that the victims had the right to access the materials of the investigation in full after the investigation had been completed. Since the investigation had still been ongoing, and at times had been suspended, the victims could not be granted access to the entire case file. Furthermore, the Government noted that in July 2005 the applicants and their representatives had been invited to access the available documents from the case file at the district prosecutor’s office.

The Government stated that the investigation into the abduction of Aslanbek Astamirov had been suspended and reopened a number of times. The latest decision to reopen the proceedings had been taken on 30 March 2006. The applicants had been duly informed of these developments. The investigation was under the control of the Prosecutor General’s Office.

Despite specific requests by the Court the Government did not submit a copy of the file in criminal case no. 34001, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of the notifications to the applicants of the suspension and reopening of the proceedings. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in breach of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

COMPLAINTS

1. The applicants complained under Article 2 of the Convention about a violation of the right to life in respect of their relative, Aslanbek Astamirov. The applicants submitted that the circumstances of his arrest and the long period during which his whereabouts could not be established indicated that Aslanbek Astamirov had been killed by the State agents. The applicants also claimed that the State had failed in its positive obligation under Article 2 in that no effective investigation had been conducted into the disappearance of their relative.

2. The applicants next referred to Article 3 of the Convention, claiming that they had suffered severe mental distress and anguish in connection with the disappearance of their close relative and on account of the State’s failure to conduct a thorough investigation into that disappearance. They stated that, as a result, the second applicant’s health had drastically deteriorated after Aslanbek Astamirov’s disappearance.

3. The applicants maintained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Aslanbek Astamirov.

4. The applicants next alleged an absence of effective remedies in respect of their complaints under Articles 2, 3 and 5 of the Convention, contrary to Article 13 of the Convention.

5. Finally, the applicants invoked Article 14 in conjunction with Articles 2, 3, 5 and 13 of the Convention, stating that the above violations had occurred because of their Chechen ethnic origin and residence in Chechnya.

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

7. In their initial application the applicants also submitted complaints about their relative’s ill-treatment under Article 3 and about their inability to have access to a court under Article 6. However, in their observations on the admissibility and merits of the application they specified that they did not wish to maintain these complaints. Accordingly, the Court finds no reason to proceed with the examination of these complaints.

THE LAW

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

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

The applicants disputed the Government’s objection. They argued that the criminal investigation had proved to be ineffective and that their complaints to that effect had been futile. They also alleged the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya and referred to the other cases concerning such crimes reviewed by the Court, as well as reports of various NGOs and international bodies.

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

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

B. Merits of the application

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

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

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

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

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

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

The Government submitted that the circumstances of the applicants’ relative’s disappearance were under investigation. It had not been established that he had died or that State agents had been involved in his abduction. The investigation was in compliance with Article 2 of the Convention and the law-enforcement bodies were taking all possible steps aimed at solving the crime.

The applicants submitted that the representatives of the State should be held responsible for unlawful detention and killing of Aslanbek Astamirov. They stated 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 arrested, which should be recognised as life-threatening. The applicants contended that their relative had been detained within the context of a security operation. They also stated that the Government’s failure to produce the documents from the case-file or to provide a plausible explanation of the events had put the burden of proof on the Government, who should be obliged to prove that their agents were not responsible for the arbitrary detention and killing of Mr Astamirov.

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 the authorities had been unable to demonstrate any progress over a period of several years. A number of important steps had been taken too late, or not taken at all, such as identifying and questioning the State agents who could have been involved in the abduction. The applicants had had no opportunity to acquaint themselves with the case file.

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

2. The applicants complained that as a result of the disappearance of their close relative 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. They argued that the applicants who had been questioned by the investigating authorities had not stated that they had been subjected to ill-treatment. As to the level of suffering allegedly caused to the applicants by the fact of their relative’s disappearance, that, in the Government’s view, was beyond the evaluation of the law-enforcement authorities and could not be objectively measured, as it related to psychological aspects, such as the emotions and personalities of the individuals concerned.

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

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

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

...

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

...

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

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

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

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

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

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 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. They noted, in particular, that the military prosecutors and military courts had never ceased to function in Chechnya. The applicants thus could have appealed to the military prosecutors at various levels, from the military prosecutor of military unit no. 20102 (based in Khankala, the headquarters of the UGA) up to the Chief Military Prosecutor, and to the military courts in Chechnya and beyond. The Government also noted that the investigation into the abduction of the applicants’ relative had not yet been completed. They 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. This was an effective remedy to ensure the observation of their rights. The applicants had never made use of this possibility, which required the initiative of the participants in criminal proceedings, and thus the absence of court action could not constitute a violation of Article 13.

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

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

5. The applicants 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 on the part 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 took place systematically in the territory of the Chechen Republic, and that the authorities did 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 observes that no evidence has been submitted to it that suggests that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated. Accordingly, this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

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

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 3, 5 and 13 of the Convention;

Declares inadmissible the remainder of the complaint.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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