KHACHUKAYEV v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28148/03
by Saydamin Mumadovich KHACHUKAYEV
against Russia

The European Court of Human Rights (First Section), sitting on 18 September 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 25 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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Saydamin Mumadovich Khachukayev, is a Russian national who was born in 1927 and lives in the village of Goyty, the Urus-Martan District, Chechnya. He is represented before the Court by Mr D. Itslayev, a lawyer practising in Nazran. The respondent Government were represented by their Agent, Mr P. Laptev, the former 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.

The applicant is the father of Murad Khachukayev, born in 1974. At the material time they lived, along with the applicant’s daughter and other two sons and their family members, in a private household comprising two houses at 141 Kirov Street in the village of Goyty (in the submitted documents the village is also referred to as Goyskoye), in the Urus-Martan District, Chechnya. The village was under curfew.

1. Apprehension of Murad Khachukayev

The applicant’s account of events was based on his statements as well as on eye-witness statements of his daughter, two daughters-in-law and youngest son.

On the night between 4 and 5 February 2003 the applicant, his elder son with his wife and their two children, the applicant’s daughter and daughter-in-law were sleeping in one of the houses, while Murad Khachukayev and the applicant’s youngest son were sleeping in the other one.

Around 2.30 a.m., a group of masked men in camouflage uniforms entered the applicant’s house, having broken the doors. The intruders had machine-guns, ammunition belts (“разгрузка”), sniper rifles and torches. They did not produce identity papers or any documents to justify their actions and gave no explanations. According to the applicant, the intruders were Russian military servicemen, as they spoke Russian without accent and were able to circulate freely during the curfew.

The applicant was awaken by the noise and attempted to get up, but was ordered to remain in bed. He saw two intruders pointing their machine-guns at him. He asked them what they intended to do, but they told him to sleep. The applicant then sat in his bed and saw that there were other armed men in his house.

Three men entered the room in which the applicant’s daughter and one of his daughters-in-law were sleeping. They told the women that it was a passport check and ordered them to remain in beds and not to move. Then two of them aimed their machine guns at the women, while the third one searched the room, acting quickly and quietly, in a professional manner. The intruders also asked the applicant’s daughter who was in the other house at the moment, and she replied that her two brothers were sleeping there. About 5 minutes later the men left the room, having warned the women to stay inside, as the house was surrounded by snipers. The applicant’s daughter tried to go out but had lost consciousness.

Two intruders entered the room occupied by the applicant’s elder son, his wife and their two children. The applicant’s daughter-in-law woke up and the men told her that it was a passport check. They pointed their machine-guns at the applicant’s elder son who went on sleeping, and asked the applicant’s daughter-in-law whether there were firearms in the house. She answered in the positive and gave a pistol belonging to her husband who was an officer of a law enforcement agency. The intruders enquired why there were firearms in the house and the applicant’s daughter-in-law replied that it was her husband’s service gun. Thereafter the men asked who was in the other house, and the applicant’s daughter-in-law stated that there were her husband’s two brothers there. The intruders also ordered the applicant’s daughter-in-law to produce her husband’s identity papers. When she did so, one of the men took the documents away and showed them to someone in the street. Shortly after he returned and gave the papers back. The intruders then disassembled the service gun of the applicant’s elder son and put it in into a plastic bag, stating that they had done so in order to ensure that the Khachukayevs would not shoot them in the back.

A group of three or four men forcibly entered the other house occupied by Murad Khachukayev and the applicant’s youngest son. They ordered the latter to get up and stand against the wall and checked his documents. Thereafter they ordered Murad Khachukayev to lie face down on the floor and checked his identity papers as well. The men also quickly searched the house. After that they ordered Murad Khachukayev to follow them and took him away, stating that he should show them his neighbours.

According to the applicant, he went out to the courtyard to check what the intruders were doing in the other house in which his two sons were sleeping. One of the intruders shouted at him that there were snipers around. It was cold outside and the applicant went back to get some warm clothes. He returned to the courtyard several minutes later, but the intruders had already left. The applicant’s youngest son told him that they had taken Murad Khachukayev away. The applicant rushed inside and woke his elder son. They went to the village administration at once, but there were only security guards there who told them that it was too early in the morning and advised them to wait until the beginning of the working hours.

The Government in their observations did not challenge most of the facts as presented by the applicant. They stated that it had been established that “on 5 February 2003, at night time, unidentified persons in camouflage uniforms and masks, armed with automatic firearms abducted M.S. Khachukayev from house no. 141, Kirova Street in the village of Goyty, in the Urus-Martan district of Chechnya”. The Government objected to the term “servicemen” used by the applicant, because, in their opinion, there were no grounds to believe that the persons who had apprehended Murad Khachukayev had been servicemen of the Russian military forces.

2. Search for Murad Khachukayev and discovery of his remains

In the morning on 5 February 2003 the applicant and his next of kin saw numerous footprints on the snow in their courtyard and around their household in the street. The footprints lead south in the direction of a village bakery. According to one of the applicant’s daughters-in-law, the servicemen who had raided their house that night had been panting for breath and she concluded that they had reached their house on foot from some distance. Several days later she talked to three other residents of Goyty who had seen two military UAZ vehicles parked near the bakery on the night of the raid. The first witness had seen the UAZ vehicles close to the bakery in Goyty; the second and third witnesses had seen the vehicles in the western part of the village at about 4 a.m. on 5 February 2003. The vehicles were leaving Goyty and were about to cross the checkpoint of the Russian federal forces in the eastern part of Urus-Martan.

After communication of his application to the respondent Government, the applicant submitted to the Court the names and addresses of the witnesses who had provided this information. The witnesses requested to have their names not to be transmitted to the Government out of fear for personal safety, but they were ready to provide their accounts to the Court on conditions of anonymity.

The applicant asked his family members and neighbours to preserve the footprints so as to enable the authorities to examine the scene of the incident and carry out the on-the-spot investigation. He then went with his elder son to Urus-Martan and complained about Murad Khachukayev’s unlawful apprehension to the prosecutor’s office, the district department of the interior and the military commander’s office. The applicant submits that all the State bodies to which he applied that day stated that they had not detained his son and had no information as to the latter’s whereabouts and refused to take any measures in connection with his complaints.

During the next five days the applicant continued searching for his son. Every day he requested the authorities orally and then in writing to inform him about the reasons for his son’s apprehension, or to commence investigation, if Murad Khachukayev had been kidnapped by unknown persons. No measures had been taken.

On 10 February 2003 the applicant talked to one of the residents of Goyty. The latter informed the applicant that a shepherd who had been tending cattle in the abandoned fruit garden on the territory of a State collective farm near the road between Goyty and Urus-Martan had seen a fresh hole and remains of a human body which had apparently been blown up. According to the applicant, the Russian mass-media reported the incidents when remains of blown up corpses of persons detained by federal servicemen had been found on the territory of the said collective farm. In support of these allegations, he submitted a copy of an article “Chechnya: after order no. 80” (“Чечня: после приказа № 80”) from a national weekly newspaper Novaya Gazeta dated 29 April - 5 May 2002.

On the same day the applicant and his elder son met the shepherd who accompanied them to the alleged scene of the incident situated 20 metres away from the road. The shepherd told them that he had discovered this site on 5 February 2003, during the daytime. The applicant saw a hole measuring approximately 1.5 m in diameter and 1 m in depth and small fragments of human body all around. The remains looked as though the body had been torn apart by explosion. The applicant examined the hole and found several pieces of bones, a flock of hair and the lower part of the right leg with a woollen sock, cotton stripped sock and a burnt boot on. He identified the socks and boot as belonging to his son, Murad Khachukayev. The other fragments of the corpse of the applicant’s son who had weighed 120 kg when he had been alive were too small, and therefore unidentifiable. Some time later the applicant found out that a number of residents of the town of Urus-Martan and the nearby villages had heard the explosion on the night of his son’s apprehension.

The applicant and his relatives buried the remains shortly thereafter. It does not appear that the applicant or his family members took photographs of the remains before the burial or contacted any authority or medical doctors on this matter. It is unclear whether a death certificate was issued in respect of Murad Khachukayev.

3. Official investigation

Following the discovery of Murad Khachukayev’s remains, the applicant repeatedly applied, both orally and in writing, to prosecutors of various levels. He referred to the facts of his son’s apprehension, asked for assistance and details of the investigation and complained about the inactivity of the investigating authorities. Mostly he received formal responses informing him that his requests had been forwarded to inferior prosecutor’s offices for examination.

On 12 February 2003 the prosecutor’s office of the Urus-Martan district (“the Urus-Martan prosecutor’s office”) instituted a criminal investigation in connection with Murad Khachukayev’s abduction “by unidentified persons” on 5 February 2003 under Article 126 § 2 (a) of the Criminal Code of Russia (kidnapping committed by a group of persons). The file was given number 34023. It appears that only on 13 March 2004 the Urus-Martan district prosecutor’s office conducted the crime scene examination at the applicant’s house.

On 12 February 2003 the Urus-Martan prosecutor’s office conducted the crime scene examination of the place of the discovery of the remains. As a result, parts of the clothes and two metal objects had been taken for further expert examination.

On 18 February 2003 the Urus-Martan prosecutor’s office informed the applicant about opening of a criminal case in connection with his son’s abduction.

On 21 February 2003 the applicant was granted the status of a victim in the criminal case.

On 4 March 2003 the explosives expert evaluation (взрывотехническая экспертиза) established that one of the metal objects submitted for the expert evaluation from the place of the discovery of Murad Khachukayev’s remains had been a shell splinter and the other one had not been a part of an explosive device. The applicant was not informed about this investigative measure.

On 7 April 2003 the forensic expert evaluation of Murad Khachukayev’s remains concluded that it was impossible to establish the cause of his death. The applicant was not informed about this investigative measure.

On 12 April 2003 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. On 16 April 2003 the letter informing the applicant about this decision was forwarded to his address.

On 23 June 2003 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023 upon the applicant’s request to this effect. On 24 June 2003 the letter informing the applicant about this decision was forwarded to his address.

On 23 July 2003 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 14 August 2003 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023 due to “significant incompleteness of the conducted investigation”. On 15 August 2003 the letter informing the applicant about this decision was forwarded to his address.

On 15 September 2003 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 9 December 2003 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023 “due to incompleteness of the conducted investigation”. On the same date the letter informing the applicant about this decision was forwarded to his address.

By letter of 16 December 2003 the prosecutor’s office of the Chechen Republic informed the applicant that on 9 December 2003 the investigation into his son’s disappearance had been resumed and that “the investigative actions aiming at establishing Murad Khachukayev’s whereabouts and identifying the alleged perpetrators were under way”. The letter also invited the applicant to send his queries to the Urus-Martan prosecutor’s office.

On 21 December 2003, during an interrogation by an investigator of the Urus-Martan prosecutor’s office, the applicant reiterated that he had found his son’s remains and identified them by the fragments of clothes and footwear.

On 26 December 2003 the Urus-Martan prosecutor’s office informed the applicant that the investigation in criminal case no. 34023 had undertaken all investigative measures possible in the absence of those to be charged with the crime.

On 9 January 2004 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 26 February 2004 the Department of the Prosecutor’ General Office in the Southern Federal Circuit (Управление Генеральной прокуратуры РФ в Южном федеральном округе) forwarded the applicant’s query regarding the investigation in criminal case no. 34023 to the Chechnya prosecutor’s office “for examination on the merits”.

On 4 March 2004 the Chechnya prosecutor’s office informed the applicant that his application concerning the abduction of Murad Khachukayev and subsequent discovery of the latter’s remains had been examined and that the search for those responsible was currently under way.

According to the applicant, on 5 May 2004 an official of the administration of the village of Goyty gave him a letter of the Urus-Martan prosecutor’s office dated 9 January 2004 by which he was notified that the preliminary investigation in criminal case no. 34023 had been suspended on the same date owing to the failure to establish the perpetrators.

On 5 March 2004 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023. The decision stated, inter alia, that “on 12 February 2003 in the garden located in 4 km from Urus-Martan in the direction of Goyty, fragments of a human body were discovered. The relatives [of the disappeared] identified in these fragments M.S. Khachukayev by the remaining footwear and parts of clothes” and further stated that “[the decision to suspend the investigation] was unsubstantiated and should be overruled and the criminal case should be returned for additional investigation”. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 5 April 2004 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. It appears that the applicant was not informed about this decision.

On 25 September 2004 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 25 October 2004 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. On the same date the letter informing the applicant about this decision was forwarded to his address.

According to the applicant, at some point in June 2005 the Urus-Martan prosecutor’s office informed him in reply to his oral request that the criminal proceedings in case no. 34023 had been suspended.

On 21 September 2005 the applicant wrote to the Urus-Martan prosecutor requesting information about the progress of the investigation in criminal case no. 34023 and asking to reopen the proceedings if they had been suspended.

On 2 June 2006 the applicant wrote again to the Urus-Martan prosecutor requesting information about the progress of the investigation in criminal case no. 34023.

On 5 June 2006 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023. On the same date the letter informing the applicant about this decision was forwarded to his address.

On 5 June 2006 the Urus-Martan prosecutor’s office instituted criminal proceedings under Article 105 § 2 of the Criminal Code (aggravated murder) in connection with the discovery of the body of Murad Khachukayev. The decision stated that “in the course of the investigation of criminal case no. 34023 opened on 12 February 2003 in connection with the abduction of Murad Khachukayev on 5 February 2003 from the village of Goyty in the Urus-Martan district of Chechnya, it was established that the corpse of the said person with traces of violent death had been discovered on 12 February 2003 in the gardens located near the village of Goyty in the Urus-Martan district”. The criminal case was given number 57031.

On the same date the Urus-Martan prosecutor’s office joined the investigation in criminal cases no. 34023 and no. 57031. The joined criminal case was given number 34023.

On 6 June 2006 the applicant was questioned by the investigation in criminal case no. 34023.

On 13 June 2006 the applicant’s two relatives were questioned by the investigation in criminal case no. 34023.

On 5 July 2006 the Urus-Martan prosecutor’s office suspended the investigation in criminal case no. 34023 owing to the failure to establish the perpetrators. The applicant was informed about the decision on the same date.

On 27 July 2006 the Urus-Martan prosecutor’s office reopened the investigation in criminal case no. 34023. It appears that the applicant was not informed about this decision.

It is unclear whether any investigative actions had been undertaken by the prosecutor’s office after the last reopening of the criminal proceedings.

According to the applicant, he had not been informed about the present state of the investigation in joined criminal case no. 34023.

Referring to the information provided by the Prosecutor General’s office, the Government submitted in their Memorandum dated 3 July 2006 that the applicant’s first complaint concerning the abduction of his son had been received by the Urus-Martan prosecutor’s office on 11 February 2003 and the criminal case in this respect had been instituted on 12 February 2003 under Article 126 § 2 of the Criminal Code (aggravated kidnapping), the case had been given number 34023. In connection with the discovery on 12 February 2003 of fragments of a human body which, according to the relatives, had belonged to M.S. Khachukayev, the Urus-Martan prosecutor’s office opened criminal case no. 57031 under Article 105 § 2 of the Criminal Code (aggravated murder). The investigation of this case had been joined with criminal case no. 34023.

According to the Government, on 21 February 2003 the applicant was granted the status of a victim in the criminal case and questioned about the circumstances of his son’s abduction. From his account it followed that on 5 February 2003 a group of unidentified armed men had broken into his house and taken away his son; that on 12 February 2003 he had found out about the discovery of the fragments of his son’s body near the village of Goyskoye (it appears that the name of the village was misspelled in the document and should be read as Goyty). On 12 February 2003 the investigation questioned witness Mr A.E. who testified that he had been present during the examination of the place of discovery of the remains and identified them as belonging to his cousin Murad Khachukayev. In addition, the investigation questioned five witnesses who had been present in the applicant’s house during Murad Khachukayev’s abduction and who had confirmed that their relative had been taken away by unidentified persons. The Government submitted that although the applicant and his relative had had information about the two cars driving in the village on the night of the abduction, they had failed to provide this information to the investigation.

According to the information from the Prosecutor General’s office, the investigative authorities undertook, among others, the following measures: on 12 February 2003 they had examined the place of discovery of the remains and, as a result, had taken parts of the clothes and two metal objects for further expert examination. On 4 March 2003 the explosives expert evaluation (взрывотехническая экспертиза) had established that one of these metal objects had been a shell splinter and the other one had not been a part of an explosive device. According to the expert evaluation of Murad Khachukayev’s remains, dated 7 April 2003, it had been impossible to establish the cause of his death.

According to the Government, the newspaper article submitted by the applicant about the discovery of several corpses in the Urus-Martan district had had no connection with the applicant’s case; no criminal proceedings had been initiated in connection with these discoveries. The Government submitted that four other corpses had been found in June 2002 in the gardens at the outskirt of Urus-Martan; however, these corpses had not been blown-up and had been a subject of a separate criminal investigation.

The Government submitted that the investigation had failed to establish the perpetrators of Murad Khachukayev’s abduction and murder. However, on five occasions February 2003 to March 2004 the investigation had requested information concerning the results of operational-search measures aimed at solving the abduction of the applicant’s son.

The Government also submitted that the theory of the involvement of special forces (спецподразделений) in the abduction of Murad Khachukayev had not been confirmed by the investigation. According to the information obtained from various departments of Ministry of the Interior, the Federal Security Service and other law enforcement agencies, they had not apprehended Murad Khachukayev, had never opened any criminal proceedings against him and had not placed him in detention.

Despite specific requests made by the Court, the Government refused to submit a copy of the entire investigation file in case no. 34023, stating with reference to the information obtained from the Prosecutor General’s office that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses.

The Government submitted only several documents, which included:

(a) a procedural decision of 12 February 2003 to institute criminal proceedings in connection with Murad Khachukayev’s abduction;

(b) a procedural decision of 21 February 2003 to grant the applicant the status of a victim in criminal case no. 34023;

(c) procedural decisions concerning suspensions and reopenings of the investigation in case no. 34023;

(d) investigators’ decisions to take up case no. 34023;

(e) procedural decisions concerning extension of the time limits for the investigation in case no. 34023;

(f) letters informing the applicant about suspensions and reopenings of the investigation in criminal case no. 34023;

(g) a procedural decision of 5 June 2006 to institute criminal proceedings in connection with Murad Khachukayev’s murder.

4. Court proceedings against prosecutors

On 6 May 2004 the applicant filed a complaint against the Urus-Martan prosecutor’s office in the Urus-Martan Town Court (“Town Court”). He challenged the decision of 9 January 2004 to suspend the investigation in criminal case no. 34023 and requested the court to order the prosecutor’s office to reopen the criminal proceedings, carry out a complete and effective investigation, take necessary investigative measures and authorise his access to the investigation file. The applicant also complained that the prosecutor’s office had failed to reply to his requests of 9 December 2003 and 13 April 2004.

On 14 May 2004 the Town Court, composed of a single judge, examined the complaint in the presence of the applicant and a prosecutor. No record of the court session was being made.

The court examined the file of criminal case no. 34023 and noted that the investigating authorities had questioned at least 10 witnesses, carried out two expert examinations, inspected the scene of the incident on 12 February 2003 and the applicant’s house on 13 March 2004 and sent numerous queries to various law enforcement agencies. The court went on to state that the investigation had not obtained any evidence confirming the involvement of the representatives of the federal forces in the imputed offence. It further held that the authorities had been unable to establish the culprits, even though all possible steps had been taken, and therefore on 5 April 2004 they had suspended the preliminary investigation in view of the expiration of the time-limits. The court concluded that this decision had been justified in the circumstances of the case. As regards the applicant’s request to allow him to examine the file of criminal case no. 34023, the court stated that by virtue of Article 42 of the Code of Criminal Procedure, a victim’s access to the investigation file was possible only upon completion of preliminary investigation. The investigation concerning Murad Khachukayev’s abduction had been suspended, but not yet completed, and therefore the applicant had no right of access to the investigation file. Finally, the court noted that there was no evidence that the applicant’s request of 13 April 2004 had ever reached the Urus-Martan prosecutor’s office, while his request of 9 December 2003 had been received by the prosecutor’s office, but no response had been given. The court therefore ordered the Urus-Martan prosecutor’s office to reply to the applicant’s letter of 9 December 2003 and dismissed the remainder of his complaint.

The applicant submits that the full copy of the above decision was served on him only on 14 July 2004.

On 24 August 2004, upon the applicant’s appeal, the Chechnya Supreme Court quashed the decision of 14 May 2004, stating that the absence of the trial record indicated that the first instance court had not held a public hearing. The case was remitted to the first instance for a fresh examination.

In the meantime, the applicant wrote to the Town Court and the Urus-Martan prosecutor’s office with requests to resume the investigation, take necessary investigative actions and verify the theory of the involvement of the federal forces in the abduction and murder of his son. In this latter respect the applicant referred to a number of measures that could be undertaken by the authorities. He also requested to be provided with access to the investigation file.

By decision of 29 September 2004 the Town Court dismissed the applicant’s complaint by reference to the fact that despite all possible measures the authorities had been unable to establish the culprits so far, that the criminal investigation had been reopened on 25 September 2004, and that until its completion the applicant could not be provided with access to the investigation file.

On 27 October 2004 the Chechnya Supreme Court overturned the first instance decision and remitted the case for a fresh examination.

On 1 December 2004 the Town Court granted the applicant’s complaint in so far as he challenged the decision of 9 January 2004 to suspend the proceedings in criminal case no. 34023. The court ordered the prosecutor’s office to set aside the said decision, resume the proceedings and carry out a complete and effective investigation. The court then rejected the applicant’s request to be provided with full access to the criminal case file in view of the fact that the preliminary investigation had not yet been completed.

The applicant received a full copy of the above decision on 17 December 2004 and appealed against it in the part concerning the refusal of his access to the investigation file. He referred, in particular, to the practice of the European Court of Human Rights to the effect that the next of kin of the victim must be involved in the investigation to the extent necessary to safeguard his or her legitimate interests.

On 25 January 2005 the Chechnya Supreme Court upheld the decision of 1 December 2004 on appeal, noting that the refusal at this stage of the criminal proceedings did not violate the applicant’s constitutional or procedural rights, as “he had not been refused access to the criminal case file in general, but only until the completion of the preliminary investigation”.

B. Relevant domestic law

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

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

COMPLAINTS

1. The applicant complained under Article 2 of the Convention about a violation of the right to life of his son, Murad Khachukayev. He claimed in this respect that the circumstances of his son’s apprehension clearly indicated that Murad Khachukayev had been detained and then murdered by the federal servicemen. The applicant also claimed that the State had failed in its positive obligation to protect Murad Khachukayev’s life. Finally, he complained that no proper investigation into his son’s abduction and murder had been conducted.

2. The applicant relied on Article 3 of the Convention, stating that he had suffered severe mental distress and anguish in connection with the disappearance and killing of his son and on account of the State’s failure to conduct a thorough investigation in this respect. In his observations submitted after the application had been communicated to the respondent Government the applicant withdrew this complaint. Accordingly, it will not be examined by the Court.

3. The applicant 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 Murad Khachukayev.

4. The applicant complained under Article 6 § 1 of the Convention about unfairness of the proceedings brought by him against the prosecutors. In particular, he stated that the proceedings had been unreasonably long, that the judges who had examined his complaints had been influenced by the prosecutor’s office, and therefore had not been independent, that the principle of the equality of arms had been breached since the other party to the proceedings, notably, the prosecutor, had had access to the file of criminal case opened in relation to the abduction of his son, whilst he had been denied such access, and that the courts had failed to properly examine his complaints and give reasoned decisions.

5. The applicant relied on Article 8 of the Convention in that the intrusion by the Russian military into his house during the night between 4 and 5 February 2003 and the ensuing search had been unlawful and had infringed his right to respect for his private life and home. In his observations submitted after the application had been communicated to the respondent Government the applicant withdrew this complaint. Accordingly, it will not be examined by the Court.

6. The applicant next alleged the absence of any effective remedies in respect of his complaints under Articles 2 and 5 of the Convention, contrary to Article 13 of the Convention.

7. Lastly, in his observations of 28 August 2006 the applicant complained that the Government’s refusal to submit a copy of the investigation file in criminal case no. 34023 was in breach of the State’s obligations under Articles 34 and 38 § 1 of the Convention.

THE LAW

The applicant raised complaints set out above relying on Articles 2, 5, 6 and 13 of the Convention, which in so far as relevant, read as follows:

Article 2

“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.”

Article 5

“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.”

Article 13

“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.”

A. Admissibility

1. Exhaustion of domestic remedies

a. Submissions by the parties

The Government argued that the present application should be declared inadmissible for non-exhaustion of domestic remedies, stating that the investigation into the abduction and murder of the applicant’s son was still pending.

The applicant disputed the Government’s objection and contended that the Government had not indicated which particular domestic remedy he had not exhausted. He further argued that the criminal investigation had proved to be ineffective and that his complaints to that effect had been futile. He 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.

b. The Court’s assessment

  The Court considers that the question of exhaustion of domestic remedies is so closely linked 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.

2. Incompatibility ratione materiae

The applicant also complained about unfairness of the proceedings brought by him against the prosecutors. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

The Court observes that this complaint falls outside the scope of Article 6 § 1 and is incompatible ratione materiae as the proceedings in question did not concern determination of the applicant’s civil rights and obligations. Therefore, this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

B. As to the merits of the application

1. Submissions by the parties

(a) The Government

The Government relied on the information provided by the Prosecutor General’s office and argued that the Russian authorities were not responsible for the actions of unidentified persons who had abducted and murdered Murad Khachukayev and that the investigation had not obtained any evidence to the effect that representatives of the Russian federal forces had been involved in the imputed offence. The Government argued therefore that there were no grounds to claim that Murad Khachukayev’s right to life secured by Article 2 of the Convention had been breached. The Government further claimed that the investigation into the disappearance and murder of the applicant’s son met the Convention requirement of effectiveness, as all possible measures were being taken to identify the perpetrators.

According to the Government’s submission, there was no evidence to confirm that the applicant’s son had been detained in breach of the guarantees set out in Article 5 of the Convention. Murad Khachukayev had not been kept in detention centres.

The Government also contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention, as he had had “the right to appeal actions and decisions of officials of the Urus-Martan district prosecutor’s office to the supervisory prosecutor’s office or to the courts”. They also pointed out that “the authorities initiated a criminal investigation upon the applicant’s complaint about a crime committed against his son; this investigation has been in progress”.

(b) The applicant

The applicant disagreed with the Government and maintained his complaints. He argued that it was beyond reasonable doubt that Murad Khachukayev had been detained on 5 February 2003 by representatives of the Russian federal forces, this fact being confirmed by eyewitness statements. The applicant pointed out thereafter his son had not been seen alive and his remains had been discovered several days later. He further stressed that Murad Khachukayev had been killed while in the hands of representatives of federal power structures.

As regards the procedural aspect of Article 2 of the Convention, the applicant claimed that the criminal investigation had fallen short of the requirements of domestic law and the Convention standards. He pointed out that, although he had orally informed the authorities about his son’s abduction on 5 February 2003, in accordance with Article 141 of the Code of Criminal Procedure stipulating that a complaint about a crime could be lodged either orally or in writing, criminal case no. 34023 had not been opened until 12 February 2003. The applicant further contended that in spite of the Government’s submission concerning his alleged failure to inform the investigation about two UAZ cars which had been seen in Goyty on the night of his son’s abduction, he had stated in his complaints to the Chechnya Prosecutor’s office (dated 25 July 2003) and the Prosecutor General’s office (dated 21 October 2003), that Murad Khachukayev’s abductors had used two UAZ cars. In spite of that the investigation had failed to seek further information in this respect. The applicant also claimed that the authorities either had failed to undertake basic investigative measures he had asked for in his complaint to the Prosecutor General’s office (dated 21 October 2003) or they had carried them out with significant delays. In particular, the applicant stressed that the crime scene examination at the applicant’s house had been conducted only on 13 March 2004, i.e. 13 months after the abduction. The applicant further pointed out that although his son’s remains had been discovered on 12 February 2003, the criminal investigation in this respect had been opened only on 5 June 2006, i.e. only after the communication of his application to the respondent Government. The applicant further submitted, inter alia, that in spite of the discovery of his son’s remains on 12 February 2003, more than 10 months later, on 16 December 2003 the Chechnya prosecutor’s office had informed him that the investigation had been trying to establish Murad Khachukayev’s whereabouts. According to the applicant, this fact had eloquently demonstrated ineffectiveness of the criminal investigation which had been pending for almost four years, had been repeatedly suspended and reopened, but still had failed to produce any tangible results.

The applicant claimed that his son’s apprehension had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.

Lastly, the applicant relied on Article 13 of the Convention, alleging that in his case the domestic remedies had proved to be ineffective. He claimed that the criminal investigation into his son’s abduction, which could have been the effective remedy, had been excessively long and ineffective; that the authorities had failed to provide any explanations for the delays in the investigation; that only upon communication of his application to the respondent Government the authorities had opened a criminal investigation into the murder of Murad Khachukayev. In addition, the applicant had been deprived of the access to the investigation file which had precluded him from effectively appealing decisions of the investigative authorities.

2. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the present application 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

Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies in respect of the complaints submitted under Articles 2, 5 and 13 of the Convention;

Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 2, 5 and 13.

Declares inadmissible the remainder of the application.

              André WampachChristos Rozakis
              Deputy RegistrarPresident

 

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