FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69481/01
by Fatima Sergeyevna BAZORKINA
against Russia
The European Court of Human Rights (First Section), sitting on 15 September 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrA. Kovler, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 11 April 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 applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Fatima Sergeyevna Bazorkina, is a Russian national, who was born in 1938 and lives in the town of Karabulak, Ingushetia. The complaint is also brought in respect of the applicant’s son, Khadzhi-Murat Aslanbekovich Yandiyev, born in 1975. The applicant is represented before the Court by Gareth Peirce, a lawyer practising in London, UK. She is assisted by the Stichting Russia Justice Initiative (SRJI), an NGO based in the Netherlands with a representation office in Russia. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts surrounding the disappearance of the applicant’s son, Khadzhi-Murat Yandiyev, and the ensuing investigation are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
1. Circumstances of the applicant’s son’s disappearance
The applicant’s son, Khadzhi-Murat Aslanbekovich Yandiyev, was born on 27 August 1975. Until August 1999 he was a student at the Moscow Sociology University. The applicant submits that he left the University in August 1999 before completing the final year of his studies. One of his classmates told the applicant that her son had apparently travelled to Grozny, Chechnya. The applicant believes that he wanted to find his father, who apparently went there. She has not heard from her son since August 1999.
In autumn 1999 the hostilities started in Chechnya. After the take-over of Grozny by the federal forces, at the end of January - early February 2000 a large group of Chechen fighters left the city and moved south-west towards the mountains. On the way the fighters - and anyone leaving the city with them - encountered mine fields. Many people sustained injuries, including injuries to their feet and legs. Many of the wounded were treated in a hospital in the village of Alkhan-Kala (also called Yermolovka), which was taken by the Russian military in the first days of February 2000.
On 2 February 2000 the applicant saw her son in a news programme about the capturing of Alkhan-Kala by the Russian forces. He was wearing camouflage uniform. His right foot was wrapped in a cellophane bag. He was being interrogated by a Russian officer also wearing camouflage uniform.
The applicant later obtained a full copy of the recording, made by a reporter for the NTV (Russian Independent TV) and CNN, who had entered Alkhan-Kala with the federal troops. A copy of that recording and a transcript of the interrogation have been submitted to the Court by the applicant.
In the recording the applicant’s son is seen standing near a bus with wounded men. The bus is surrounded by Russian soldiers, the wounded are being taken out of the bus. The soldiers twice kick the applicant’s son on his right leg. He is wincing with pain. He is speaking in a low voice, his words are barely audible. The officer questioning him is speaking to him with a harsh voice. The following is a translation of the relevant parts of the transcript:
“Officer: - Turn your face [to me]! Turn it well. Who are you?
The detainee answers something, but the words are not audible.
Officer: - What did you say? From Ingushetia? - / The detainee says something about Nazran/ - From Nazran? Where do you live in Nazran?
Another servicemen standing by orders: Hands out of your pockets!
... The officer takes something out of the pocket of the detainee’s camouflage jacket - identity documents, and inspects them, asking questions. The answers are not audible.
Officer: - What is your last name? What is your first and patronymic name?
The detainee: - Born on 27 August 1975.
Another officer: - Alexander Andreyevich, we need to get the convoy group ready. We have to take all three buses there.
The officer takes something out of a small leather pocket, wrapped in cellophane, that was among the detainee’s papers [apparently, a compass], shows it to somebody: - There, you see! A solid, trained fighter.
He puts the device back into the pocket and wraps it in cellophane.
Another officer asks: - Where did you leave your arms?
The detainee, shown with his head to the side: - My weapons are left over there.... /Says something about a mine field. /
The second officer repeats: In a mine field?
... The officer, pointing at his camouflage jacket: - From which soldier did you take this? From a federal soldier? From your soldier?
The detainee says something in the sense that it was given to him. He says something about “fighting against”.
The officer: - Fighting against whom? Fighting against such [people] as here? Why did you come here? People are dying because of you!
The detainee: - Because of me?
The officer: - Of course!
The detainee: - People are dying...
The officer: - Take him away, damn it, finish him off there, shit, - that’s the whole order. Get him out of here, damn it. Come on, come on, come on, do it, take him away, finish him off, shoot him, damn it...
The detainee is led away by two soldiers”.
The video also shows Russian military equipment and other wounded detainees. They are taken out of the buses or remain inside, many have their feet and legs wrapped in bandages or cellophane. The video also contains interviews with the villagers of Alkhan-Kala, who say that they were bombarded the day before.
The CNN journalists who filmed the interrogation later visited the applicant in Ingushetia and identified the interrogating officer as Colonel-General Alexander B., the commander of the troops which captured Alkhan-Kala.
2. Investigation into the disappearance
After having seen her son in the news programme on 2 February 2000, the applicant immediately started to search for him. She has had no news of him since.
She has on numerous occasions applied to the prosecutors of various levels, to the Ministry of Interior and the Ministry of Justice, to the Special Representative of the Russian President in the Chechen Republic for rights and freedoms, etc. She also personally visited detention centres and prisons in Chechnya as well as in the northern Caucasus - in North Ossetia, in the Stavropol Region, Kabardino- Balkaria and Ingushetia.
On the applicant’s behalf the NGOs Human Rights Watch and Memorial and the Ambassador of the OSCE in Chechnya forwarded requests for information about her son to various bodies.
The applicant received very little substantive information from the official bodies about the investigation into her son’s disappearance. On several occasions she received copies of letters from various authorities directing her complaints to the Military Prosecutor’s Office for the Northern Caucasus, to the Grozny District Prosecutor’s Office and to the military prosecutor of military unit no. 20102.
On 18 August 2000 the Chief Department on the Execution of Sentences of the Ministry of Justice informed the applicant that her son was not being held in any prison in Russia. The applicant was advised to apply to the Ministry of Interior.
On 1 November 2000 the Special Representative of the Russian President in the Chechen Republic for rights and freedoms replied to the OSCE Ambassador in Chechnya that the applicant’s son was listed under no. 363 in the list of missing persons, compiled by the Office of the Special Representative following citizens’ requests. The Office had forwarded a request for information to the Prosecutor General on 1 November 2000 in respect of Mr. Yandiyev’s whereabouts.
On 24 November 2000 the military prosecutor of military unit no. 20102 in Khankala, the headquarters of the Russian military forces in Chechnya, returned the applicant’s complaint to the Grozny District Department of the Interior, with a copy to the applicant. The letter stated that there were no reasons to submit the complaint to the military prosecutor’s office, because the “attached materials failed to substantiate the involvement of any military servicemen in the disappearance of the applicant’s son”.
On 30 November 2000 the military prosecutor of military unit no. 20102 replied to Memorial that following a verification of their submissions, it had been concluded that “no dead body of Yandiyev had ever been discovered and from the videotape it did not follow that he had been killed, as the videotape did not contain such facts.” As a result, a decision not to open a criminal investigation was taken under Article 5 part 1 of the Criminal Procedural Code on account of the absence of a criminal act. In a similar reply to Memorial of 30 December 2000 the same military prosecutor stated that there were no reasons to conclude that military servicemen were responsible for the actions shown in the videotape.
On 8 December 2000 the Office of the Chechnya Prosecutor informed the Special Representative of the Russian President in the Chechen Republic for rights and freedoms about progress being made in several cases. Among other things, the letter refers to a videotape, “where an officer of the federal forces orders the execution of a wounded fighter. The latter had been recognised by his relatives as Yandiyev Kh. S. The said videotape had been forwarded to the military prosecutor of military unit no. 20102 for checking and investigation under Article 109 of the Criminal Procedural Code”.
On 18 December 2000 the Moscow office of the Human Rights Watch sent a letter to the General Prosecutor containing the following questions:
“1) Was a criminal investigation opened into Yandiyev’s disappearance?
2) Was the identity of the interrogating officer established?
3) Was he questioned? If not, why not?
4) Were the whereabouts of Yandiyev established, in particular if he was still alive?
5) Was the interrogating officer or anybody else charged with Yandiyev’s “disappearance”?
If a criminal investigation into Yandiyev’s “disappearance” and ill-treatment has not been opened, please open such investigation.”
On 29 December 2000 and on 24 January 2001 the Military Prosecutor’s Office for the Northern Caucasus informed the applicant and Human Rights Watch that their complaints had been forwarded to the military prosecutor’s office of military unit no. 20102.
In February 2001 two persons, I. and B., submitted affidavits to the head of the Karabulak District Department of the Interior, where they stated that on 2 February 2000 Khadzhi-Murat Yandiyev had been detained in Alkahn-Kala by the federal troops. The affidavits did not contain the addresses of I. and B. and did not explain how they became aware of Yandiyev’s detention.
On 13 February 2001 the Chechnya Prosecutor wrote to Memorial acknowledging receipt of the videotape depicting Khadzhi-Murat Yandiyev’s interrogation. The videotape had been forwarded to military unit no. 20102 for the purposes of the conduct of the investigation.
On 13 and 27 February 2001 the military prosecutor of military unit no. 20102 forwarded all further requests to the Grozny District Department of Interior.
On 16 May 2001 Human Rights Watch wrote to the Military Prosecutor’s Office for the Northern Caucasus, requesting to quash the decision of the military prosecutor of military unit no. 20102 not to open a criminal investigation. The letter referred to the contents of the videotape and to the fact that Yandiyev had not been seen afterwards. It again requested the identification and questioning of the officers appearing in the recording. In reply, the office on 31 May 2001 wrote that an inquiry would be conducted. On 22 June 2001 it informed Human Rights Watch that all the documents pertaining to the case had been transferred to the Grozny District Department of Interior.
On 14 July 2001 a prosecutor of the Chechnya Prosecutor’s Office opened criminal investigation no. 19112 into the abduction of Khadzhi-Murat Yandiyev, born in 1975, by unidentified persons in February 2000 in Alkhan-Kala. The decision referred to Article 126 part 2 of the Criminal Code (kidnapping).
On 17 August 2001 Human Rights Watch again sent a letter to the Chief Military Prosecutor. On 4 September 2001 the Chief Military Prosecutor replied that the criminal case was with the local prosecutors’ office in Chechnya, which should inform the interested parties of progress being made in the investigation.
The applicant also submits that at some point in December 2001 she was visited at her house by certain persons who stated that they were carrying out a population census. They asked her and her neighbours questions about her son and whether he had returned home. The next day they returned and told her that they were from the Karabulak Town Prosecutor’s Office and that they had received documents pertaining to her son’s disappearance from the Chechnya Prosecutor’s Office. The applicant confirmed that her son was missing and that she had had no news of him.
On 23 October 2002 the SRJI asked the Chechnya Prosecutor for an update on the investigation into Yandiyev’s “disappearance” and, possibly, killing. No response was given.
On 20 December 2002 the SRJI submitted a similar request for information to the General Prosecutor’s Office. On 4 February 2003 the General Prosecutor’s Office responded to the SRJI that their letter has been forwarded to the Prosecutor’s Office for the Southern Federal Circuit. In March 2003 that office informed the SRJI that their request was forwarded to the Chechnya Prosecutor’s Office.
On 15 April 2003 the SRJI wrote to the military prosecutor of military unit no. 20102 and asked, referring to their letter of 30 November 2000, to obtain a copy of the decision by which they refused to open criminal investigation into the applicant’s complaint about her son’s possible murder. In June 2003 the military prosecutor responded that all documents related to the case had been forwarded to the Grozny District VOVD on 24 November 2000.
On 7 December 2003 the investigator of the Grozny District Prosecutor’s Office informed the applicant that the investigation in the criminal case no. 19112 was resumed on 6 December 2003. On 6 February 2004 the applicant was informed by the same office that the investigation had been adjourned for failure to identify the culprits. The applicant was informed of the possibility to appeal against that decision to a court or a higher prosecutor.
The applicant submits that on 30 March 2004 she was visited at her home in Karabulak by two persons from the Grozny District Prosecutor’s Office who again questioned her about her missing son and about other members of her family. The applicant submitted a description of her son, but explained that she ran out of his photographs because she had previously submitted them to various offices, including the prosecutors. The applicant signed the record of the questioning. She asked the investigators why it was taking them so long to investigate her son’s disappearance, but they did not give any clear answer.
The applicant refers to the Human Rights Watch report of March 2001 “The ‘Dirty War’ in Chechnya: Forced Disappearances, Torture and Summary Executions” which reports Khadzhi-Murat Yandiyev’s story and his “disappearance” after detention by Russian servicemen.
B. Documents submitted by the parties
1. Documents from the investigation file
The Government submitted part of the investigation file in criminal case no. 19112. According to the page numbers, the file appears to have contained about 200 pages, of which 80 were submitted to the Court. The Court on two occasions reiterated its request for the remaining documents, to which the Government responded that their disclosure would be in violation of Article 161 of the Russian Code of Criminal Procedure and would compromise the investigation, as well as prejudice the rights and interests of the participants of the proceedings.
The documents submitted can be summarised as follows:
a) Decision to open a criminal investigation
On 14 July 2001 a prosecutor of the Chechnya Prosecutor’s Office opened criminal investigation into abduction of Khadzhi-Murat Yandiyev, born in 1975, by unidentified persons in February 2000 in Alkhan-Kala. The decision referred to Article 126 part 2 of the Criminal Code (kidnapping). On the same day the criminal case was forwarded to the Grozny District Prosecutor Office for investigation, which accepted it on 19 July 2001.
b) Statements by the applicant
The file contains the applicant’s letter to the General Prosecutor of 30 May 2001, in which she stated the known facts of her son’s disappearance. She stated that after having seen on 2 February 2000 her son in a news programme, she immediately went to Alkhan-Kala. She only managed to get there on 6 February 2000, and there she was told that her son, who was listed among 105 detainees, had been transferred to Tolstoy-Yurt. On 8 February 2000 she arrived at Tolstoy-Yurt, where she was told that at 3 p.m. on that day the detainees had been transferred to the Chernokozovo SIZO. At Chernokozovo she was told that her son has not been in their custody and that his name was not on their lists. After that the applicant had no news of her son, and requested the prosecutor’s office to find out his whereabouts and to inform her if he had been charged with any crimes.
On 20 January 2002 the applicant was questioned in her home town. Her brief statement repeated the circumstances of her son’s disappearance and that she had had no news of him. On the same day the applicant was granted victim status in the proceedings.
In January 2004 the investigator of the Grozny District Prosecutor’s Office asked the prosecutors in Karabulak, Ingushetia, to again question the applicant and her husband about the details of Khadzhi-Murat Yandiyev’s disappearance and search for him. The letter also referred to two “explanations” produced by B. and I. addressed to the head of the Karabulak District Department of the Interior, which stated that on 2 February 2000 Khadzhi-Murat Yandiyev had been detained in Alkahn-Kala by the federal troops. The letter requested to identify B. and I. and to question them about the circumstances of Yandiyev’s detention.
c) Documents related to the search for Khadzhi-Murat Yandiyev
On 5 December 2001 the investigators requested the Grozny VOVD to check if Khadzhi-Murat Yandiyev had been detained in their facilities, following his detention in early February 2000 in Alkhan-Kala by the officers of the Ministry of Defence and the Ministry of the Interior during a special operation. In reply, that office responded that he had never been detained by them. In February 2004 the investigators requested the same office “to take more active steps in order to find Yandiyev and to identify the persons who had kidnapped him”.
In January 2004 the investigators questioned one of Yandiyevs’ neighbours in Grozny, who confirmed that the Yandiyev family had left Grozny in 1994 and lived in Ingushetia ever since. He did not know anything about Khadzhi-Murat’s disappearance.
In February 2004 the investigators of the Grozny District Prosecutor’s Officer requested their colleagues in Moscow to question Khadzhi-Murat Yandiyev’s aunt with whom he had stayed in Moscow, to obtain from her a photograph of him and to verify if he had studied in the Moscow Sociology University, as the applicant had submitted. They also requested to obtain a copy of the videotape made by the TV-operators of the NTV or RTR stations which had been aired on 2 February 2000 and to identify and question the operators who filmed the questioning of Yandiyev. The case-file contains no answers to these requests.
d) Statements by the Alkhan-Kala residents
In December 2003 – January 2004 the investigators questioned a number of local residents, including a policeman and the chief of staff of the local administration. In similarly worded statements they stated that in early February 2000 a large group of fighters, headed by the field commander Arbi Barayev, entered the village. The village was shelled by artillery and then large detachments of the federal forces entered the village on armoured personnel carriers (APCs). None of the villagers questioned had ever heard of Khadzhi-Murat Yandiyev, but they stated that several young men from Alkhan-Kala had been detained and later released.
e) Statements by the officers of the federal troops
In December 2003 – January 2004 the investigation questioned several officers of the OMON troops on mission in Chechnya from the Velikiy Novgorod region. In their statements they repeated, almost word for word, that in November 1999 - March 2000 they were on mission in Alkhan-Kala and that in early February 2000 there was a special operation carried out in the village for two or three days. Their detachment was in reserve, but they were aware that a large group of fighters entered the village, and several thousand federal troops with support of the aviation and armoured vehicles captured a large number of fighters – possibly about 700 persons. The operation was under the command of General-Major Nedobitko, the commander of a division of Interior Ministry troops, and was visited by Major-General Vladimir Shamanov, the head of the Western Zone Alignment. The Federal Security Service (FSB) and the military intelligence dealt with the detainees.
f) Attempts to identify the relevant military unit
In January 2004 the investigators requested the military prosecutor of military unit no. 20102 to find out if a special operation had taken place in Alkhan-Kala in February 2000, which units had been involved and who had headed it. The letter referred to information that the operation was headed by General-Major Nedobitko, the commander of a division of Interior Ministry troops, but did not contain a request to question him. It does not appear that there was a response to that request.
g) The prosecutors’ orders
At different stages of the proceedings several orders were produced by the Chechen Republican Prosecutor’s Office enumerating the steps to be taken by the investigators. On 3 December 2001 the prosecutor ordered to fully investigate all circumstances of Yandiyev’s disappearance, to identify persons who had conducted a special operation in Alkhan-Kala in early February 2000, to find the applicant and grant her victim status in the proceedings.
On 6 December 2003 a prosecutor of the Grozny District noted that “no real investigation has taken place, due steps to establish and investigate the circumstances of the events have not been taken”. He ordered the investigators to question the applicant and her husband again about the “personality” Khadzhi-Murat Yandiyev and of the events immediately after 2 February 2000, in particular, to find out who were the witnesses and persons who informed her about the detainees in Alkhan-Kala, Tolstoy-Yurt and Chernokozovo. It was also necessary to find a copy of the video tape containing Yandiyev’s questioning. It further referred to two statements about Yandiyev’s detention in Alkhan-Kala and noted that these were incomplete. Finally, the document ordered to take steps to identify the detachments of the federal forces that could have been involved in the special operation in Alkhan-Kala in early February 2000 and to establish what had happened to the detained persons.
The investigation of the case was adjourned four times. The last document in the case-file is dated 1 March 2004, by which the Deputy Prosecutor of Chechnya ordered the investigators to find out the whereabouts of B. and I. and to question them about the circumstances of Yandiyev’s detention. He also ordered to continue with investigative measures which could help to clarify Yandiyev’s personality and other necessary measures.
2. Documents submitted by the applicant
The applicant submitted an undated copy of the CNN producer Ryan Chilcote’s interview for an on-line magazine in which he spoke of how the questioning of Yandiyev was filmed by their crew:
“The Chechen War, especially the second campaign, was my first experience with real warfare. I was able to get close to the action and see a lot of things on both sides of the conflict.
I was travelling with the Russians when they took Alkhan-Kala, a village near the Chechen capital of Grozny. They captured a bunch of Chechen rebel fighters; one of them, a young guy in his 20s, was wearing a Russian uniform he’d obviously taken from a soldier he’d killed. The second-in-command in the Russian military walked up to him and said, "What the hell are you doing in that Russian uniform?" The rebel fighter talked back to him, and they got into a heated debate. The general looked through the guy’s pockets and found his passport. He read all the information out loud. Then he said to two of his soldiers, "Get rid of this guy. Kill him right here." The soldiers didn’t know what to do. They knew our cameras were rolling. So they just nodded their heads but didn’t do anything.
When the general came through again, he got upset. "I told you to get rid of this guy!" The soldiers dragged the man to an armoured personnel carrier and drove him off. A Russian colonel came up to me and said, "Hey, Ryan, want to shoot an execution?" It was one of those moments when you don’t know what to do as a journalist. On the one hand, I’d be documenting a war crime, the execution of an unarmed man. On the other, it went against my instincts. Just then, the tank I’d come in on began to leave, and I had to jump aboard. A few months later, we went to the rebel fighter’s address, which the general had read aloud on camera, to find out what had happened to him. We showed his mother the tape and asked if she’d heard from him. She hadn’t. It was really difficult—she totally broke down. It’s quite probable he was executed.”
COMPLAINTS
1. The applicant submits that Article 2 of the Convention was violated in respect of her son, Khadzhi-Murat Yandiyev. She submits that the known circumstances of his detention, an explicit order of a senior Russian officer to execute her son and the long period during which his whereabouts have not been established, indicate that her son was killed by the federal forces. She further submits that there was a violation of the procedural aspect of Article 2 since no effective investigation has been carried out into the circumstances of her son’s “disappearance”.
2. The applicant complains under Article 3 of the Convention that her son, Khadzhi-Murat Yandiyev, has been subjected to treatment contrary to Article 3 of the Convention. The applicant also submits that there was a violation of the procedural aspect of Article 3 since no effective investigation has been carried out into a plausible allegation that her son was ill-treated. She further submits that as a result of the anguish and emotional distress which she has suffered in connection with the “disappearance” of her son, she has been subjected to treatment falling within the scope of Article 3.
3. The applicant complains that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, were violated in respect of her son.
4. The applicant submits that she was deprived of access to a court, contrary to the provisions of Article 6 of the Convention, because a civil claim for damages entirely depended on the outcome of the criminal investigation into her son’s disappearance. In the absence of any findings, she cannot effectively apply to a court.
5. The applicant complains, referring to Article 8 of the Convention, that there has been an interference with her right to respect for her family life on account of the detention and subsequent “disappearance” of her son.
6. The applicant complains that she has no effective remedies in respect of the violations alleged under Articles 2, 3 and 5 of the Convention, as guaranteed by Article 13 of the Convention.
THE LAW
The applicant invokes Articles 2, 3, 5, 6, 8 and 13 of the Convention.
1. The Government
The Government state that the circumstances of the applicant’s son’s disappearance are under investigation, and that until the completion of the investigation it is not possible to answer questions about the alleged violations of Articles 2, 3 5 and 8 of the Convention. The investigation did not establish for certain that Khadzhi-Murat Yandiyev had been detained by the federal forces. They explain that the investigation was made difficult at the initial stage by the complicated situation in Chechnya and contend that the on-going investigation corresponds to the requirements of Article 2. In the Government’s view, the applicant’s rights under Article 13 of the Convention were respected in that it she was granted victim status in the criminal proceedings, was properly informed of their progress and is able to participate in their course.
2. The applicant
The applicant maintains her complaints. Under Article 2 she considers it established beyond reasonable doubt that the State is responsible for the detention, disappearance and, most probably, killing of her son, basing on the video record of his questioning and the two affidavits of February 2001. She considers that the identity of the officer who had ordered her son’s execution is known, that the soldiers were under an obligation to obey the clear and direct orders of the superior and that the Government failed to present any other explanation of her son’s fate.
The applicant alleges that the authorities failed to conduct an effective investigation into the circumstances of Khadzhi-Murat Yandiyev’s detention and disappearance, in violation of the procedural aspect of Article 2. She argues that the investigation fell short of the standards of the European Convention and of the national legislation and points at the considerable delay in its opening and repeated suspensions, and at the fact that three years after the opening it has not been completed and failed to produce any results. She invokes the prosecutors’ orders contained in the case file which repeatedly criticize the investigators’ actions as ineffective. She emphasizes that she was only formally questioned as a witness and granted victim status in January 2002, i.e. six months after the start of the investigation. Most of the investigative steps were taken only after December 2003 when the complaint had been communicated to the Russian Government. The authorities systematically failed to inform her of the proceedings’ progress. She questions the relevance and effectiveness of the documents from the investigation file, copies of which were submitted by the Government, and suggests that the authorities clearly failed to verify all possible investigative versions, mainly that Khadzhi-Murat Yandiyev was killed by the federal servicemen.
Referring to the Court’s practice, the applicant contends that the State’s failure, without a sufficient explanation, to provide copies of a substantial part of the investigation file should give rise to a separate conclusion of a violation of the obligations under Article 34 of the Convention.
The applicant expresses her belief that her son was subjected to ill-treatment by the State representatives who detained him and that no effective investigation was undertaken in this respect. Referring to Article 3, she underlines that she has suffered mentally seeing the video tape in which her son was ill-treated by the soldiers and because of the Russian authorities’ complacency in the face of her son’s disappearance and, probably, death.
The applicant further submits that the detention of Khadzhi-Murat Yandiyev was not in compliance with the domestic legislation and the requirements of Article 5 as a whole. She considers it proven beyond reasonable doubt that her son was detained by the representatives of the federal forces during an operation in Alkhan-Kala, and that the investigation failed to take any steps to find out the fate of the detainees, including her son.
As to Article 6, the applicant states that it is not possible to have a hearing in a case where no one has been found responsible for a crime, and she would only have the right of appeal to a court at a stage of the proceedings which has not been reached. She further points out that the Government made no comments under this heading and therefore invites the Court to conclude that the State does not object to the allegations under Article 6.
The applicant underlines that by detaining and, possibly, killing her son the State violated her rights guaranteed under Article 8 of the Convention.
The applicant also complains that she had no effective remedies against the violations of Articles 2, 3 and 5 of the Convention, and therefore is a victim of a violation of Article 13 of the Convention.
3. The Court’s assessment
The Government have not formally contended that the application should be declared inadmissible for non-exhaustion of domestic remedies or on the ground that the application is premature. They do, however, note that criminal proceedings are still pending, and in the absence of its conclusions the applicants’ allegation about the responsibility of the State authorities in Khadzhi-Murat Yandiyev’s detention and disappearance can not be properly assessed. The Court considers that these comments are to be considered as observations on the merits of the case, and not as a preliminary objection.
The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared 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 prejudicing the merits of the case.
Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy