KHAMILA ISAYEVA v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6846/02
by Khamila Aliyevna ISAYEVA
against Russia

The European Court of Human Rights (First Section), sitting on 24 October 2006 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 28 December 2001,

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

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Khamila Aliyevna Isayeva, is a Russian national who was born in 1961. She was a resident of the village of Alkhan-Kala (also known as Yermolovka) in the Grozny District, and currently lives in Grozny, Chechnya. She is represented before the Court by lawyers from the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

1. Background to the case

The applicant and her husband, Sultan Isayev, born in 1961, lived in the village of Alkhan-Kala in the Grozny District. They have four children. The applicant is a book-keeper and her husband was a welder by profession. He served in the Soviet army and became a commander of a tank platoon. From the middle of the 1990s he worked in construction as a bricklayer, and as a mechanic. In the 1990s Sultan Isayev underwent two surgical operations, on his bowels and for appendicitis, and was in need of another one, on his spine, but could not afford it. He was advised that he could claim disability benefits, but preferred not to do so. He was regarded by his neighbours and the head of the village administration as a quiet man, always ready to help others and having nothing to do with rebel fighters.

In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic.

In November 1999 the applicant and her family went to Ingushetia, where they stayed in the village of Voznesenskoye. Sultan Isayev’s parents remained in Alkhan-Kala in their house at 65 Zheleznodorozhnaya Street.

On 27 April 2001 the applicant’s husband returned to Alkhan-Kala to visit his parents and stayed at their house, as he had regularly done before. The applicant and their children remained in Voznesenskoye, and therefore she did not witness the events relating to her husband’s arrest.

2. Events of 29 April 2001

(a) Detention of the applicant’s husband

On 29 April 2001 the Russian military conducted a special (“sweeping-up”) operation involving at least six armoured personnel carriers (“APCs”) and several military helicopters in the village of Alkhan-Kala.

On 29 April 2001 Sultan Isayev went to visit his parents’ neighbours, the Magomadovs, at 63 Zheleznodoroznaya Street. Together with the owner of the house, they were taking a steam bath in the Magomadovs’ bathhouse, a small building located in the courtyard of the house.

Sultan Isayev’s father was in his house at 65 Zheleznodorozhnaya Street, when at about 1.30 p.m. he saw around eight or ten heavily armed soldiers in the street. He was standing at the open gates of his house and asked them if they wanted to check inside. In reply they ordered him to get inside and fired in front of his feet. The applicant’s father-in-law obeyed and noticed that the soldiers then proceeded to the Magomadovs’ house down the street, where his son was. He described the events as follows:

“Having entered my house, I began watching through the window into the street. Two APCs drove up to the same house where my son was bathing... About ten more people came out of the APCs; two of them stayed in the street and the rest went into the courtyard. There were about fifteen people. About half an hour later they came out quickly, and I saw two civilians, that is, the owner of the house, Sherip Magomadov, who was dressed, and my son, who was half-naked, being shoved into the APC.

In the hands of a senior [serviceman] I noticed two or three passports. I recognised the dark blue cover of my son’s passport among them.

When they drove off, I immediately ran to the house where my son had been, and there I saw the broken door to the bathhouse and my son’s clothes – his jumper, shirt, trousers and shoes. The owner of the house wasn’t there; things were thrown all over the place, on the floor.”

The applicant submitted several statements by neighbours who confirmed that about twenty armed soldiers who had arrived in two APCs had burst into the Magomadovs’ house and detained the owner and Sultan Isayev, who had been taken naked from the bathhouse. One of the neighbours stated that she had seen a man running away from the federal soldiers who had entered the Magomadovs’ house and the soldiers pursuing the man and then detaining three men in the house. The witnesses also testified that they had heard shooting break out while the men were being detained.

According to the Government, on 29 April 2001 the federal forces conducted a special operation in Alkhan-Kala. During that operation a group of unidentified armed men arrived at the Magomadovs’ house at 63 Zheleznodorozhnaya Street, put the applicant’s husband and two other persons into APCs and took them away in an unknown direction.

In total ten men, aged between 25 and 45, were detained and taken away in Alkhan-Kala on 29 April 2001. The severely mutilated body of one of them was found two weeks later, whilst all the others have remained missing ever since.

(b) Mass-media reports

On 1 May 2001 the Agence France-Presse news agency, referring to information from the Russian ITAR-TASS news agency, reported:

“Russian forces said ... they had wiped out of a rebel unit led by warlord Arbi Barayev, one of the most ruthless gangs fighting in Chechnya. ... Seven rebels were killed and 20 arrested in the operation, in which the Russian forces surrounded the village of Yermolovka where the Barayev rebels were holed up. ... The unit was wiped out ... after several days of fighting and Barayev, 27, fled.”

The bulletin of the United Group Alignment of the Federal Forces (Объединенная группа войск) in Chechnya reported that at the beginning of May 2001 “during an operation in the vicinity of Alkhan-Kala special forces [had] severely mauled the ‘Barayev fighters’ and [that] a large group of ‘brothers-in-arms’ of the murderer [had been] detained and active members of the gang [had been] liquidated.”

3. The applicant’s search for Sultan Isayev

On 29 April 2001 relatives of the detained men went to the office of the local military commander who told them that the soldiers under his command had not taken part in the “sweeping-up” operation and that he had no information about the detainees. According to the applicant, the local military commander had taken no part in the planning or conduct of the operation, and it had been most likely that that he had been detained by the federal military who had come to conduct it. Soon after the events he had been transferred away from Alkhan-Kala.

On 2 May 2001 the applicant, who was then in Ingushetia, learnt of her husband’s detention and immediately went to Chechnya to search for him.

She coordinated her efforts with the relatives of the other men who had disappeared. On numerous occasions, both in person and in writing, she applied to the prosecutors at various levels, the Ministry of the Interior, the administrative authorities in Chechnya, the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике), and to mass-media and public figures. In her letters the applicant stated the facts of Sultan Isayev’s detention and asked for assistance and for details of the investigation.

The applicant was given hardly any substantive information from official bodies about the investigation into Sultan Isayev’s disappearance. On several occasions she and the relatives of the other detainees received copies of letters stating that their requests had been forwarded to different prosecutors’ services.

On around 2 May 2001 the applicant went to the office of the mayor of Grozny and met with the deputy mayor, Musa Dzhabrailov. According to the applicant, this official, who had claimed that he was an officer of the Federal Security Service (Федеральная служба безопасности – “the FSB”), had been aware of the circumstances of her husband’s detention, as, having heard her husband’s name, he had allegedly cried out that, indeed, that man had been “the one with a can of beer in a bathhouse”. The applicant submitted that the deputy mayor had stated that criminal proceedings had been instituted in connection with the organisation of an illegal armed group and that her husband had been apprehended in the context of those proceedings. The official had also referred to a certain investigator who had been in charge of the investigation in the aforementioned proceedings, but refused to disclose the investigator’s name. He had further told the applicant that the detainees were being held at Khankala, the main Russian military base in Chechnya. The deputy mayor had allegedly assured her that her husband and six or seven others would be released once the mayor of Grozny came back after 10 May 2001.

Thereafter the applicant went to Alkhan-Kala and met her father-in-law, who, along with other relatives of the missing persons, had hired a bus and travelled around visiting various officials in an attempt to find out about the detainees.

On 15 May 2001 the applicant was in Alkhan-Kala during another “sweeping-up” operation. The soldiers told the women in the village that there was a corpse in the river, and one of the women recognised a body which had no head and one leg as that of her son, Aburakhman Lorsanov, who had been detained on 29 April 2001. She identified him by the clothes he had been wearing on the day of his arrest. He was buried two days later, without a medical or forensic examination. The applicant submitted that the body had had several stab and gunshot wounds.

After 15 May 2001 a number of relatives of those detained on 29 April 2001 wrote to the Prosecutor General. They referred to the discovery of Aburakhman Lorsanov’s body, asked for news about their missing family members and requested that an investigation of the arrests be carried out.

Later in May 2001 the relatives liaised with a person whom the applicant identified as a “middleman from Khankala”, the main federal military base in Chechnya, and offered to pay money for the release of the detained men. He was assisted by three other persons, whom the applicant also called “middlemen”.

According to the applicant, the middleman from Khankala confirmed that the persons detained on 29 April 2001 were being held at the military base and suggested that the relatives should collect 1,000 United States dollars (USD) per detainee to have them released. According to the applicant, during the negotiations the relatives had also paid 1,000 Russian roubles per day to the middleman, who had allegedly given the money to the guards of the detainees. Some time later he had said to the applicant and other relatives that he had been unable to arrange for their family members’ release. Three weeks later the relatives had offered USD 1,500 per person to the same men and four weeks later one of the middlemen had brought news that Sultan Isayev and Sherip Magomadov would soon be released.

At the end of May 2001 the applicant and other relatives finally received confirmation from one of the middlemen, hired a bus and went to a location arranged beforehand. According to the applicant, in view of the fact that rumours of the deal had been circulating, the prosecutor of the Chechen Republic and two investigators had come to the same place and the deal had been called off on account of such “publicity”. The “middleman from Khankala” had been arrested, but had been released several days later and had refused to be involved in the negotiations any further, having stated that the detainees had, in any event, been transferred to another place. One of the other middlemen had allegedly been killed several days later when his car had been shot at on a road.

4. Official investigation

On 4 May 2001 the prosecutor’s office of the Groznenskiy District (Грозненская районная прокуратура – “the district prosecutor’s office”) instituted a criminal investigation into the disappearance of ten persons in Alkhan-Kala, including the applicant’s husband, under Article 127 § 2 (d) and (f) of the Russian Criminal Code (unlawful deprivation of liberty of two or more persons committed using arms). The case file was registered as no. 19051.

On 13 May 2001 the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) in Khankala stated in reply to a request from the district prosecutor’s office that no special operations had been conducted by the forces of the Ministry of Defence or the Ministry of the Interior on 29 April 2001, and that the persons listed in the request had not been detained.

On 3 June 2001 the district prosecutor’s office requested the nationwide Russian RTR channel to provide it with a copy of the news programme of 30 April 2001, which had reported on the operation of 29 April 2001 in Alkhan-Kala.

On 22 June 2001 the relatives of the detainees again wrote to the Prosecutor General. They referred to the news programmes that had announced that a special operation had taken place in Alkhan-Kala at the end of April and that General Baranov had been promoted and decorated for its success. They also enquired about the latest developments in the investigation.

On 23 June 2001 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики) replied to a request from the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic concerning the ten persons detained in Alkhan-Kala. The letter stated that a criminal investigation had been opened by the district prosecutor’s office and that all measures were being taken to identify those responsible and to locate the whereabouts of the kidnapped persons.

On 1 August 2001 the head of the Alkhan-Kala administration, Malika Umazheva, wrote to the head of the United Group Alignment. She stated that on 28 and 29 April 2001 there had been a special (“sweeping-up”) operation in the village, as a result of which several houses had been blown up and a number of men had been detained and taken away. She listed the hull numbers of the six APCs that had participated in the operation. She further stated that two weeks after the detention the body of one of the detainees had been discovered in the river, while the others had disappeared. She asked for assistance in finding the detainees.[1]

On 3 September 2001 the Prosecutor General’s Office replied to one of the relatives of the missing men that the investigation was being supervised by its department in the Southern Federal Circuit.

In September 2001 the 12th Interim Report by the Secretary General of the Council of Europe on the situation in Chechnya (SG/Inf (2002) 29) stated that “in the case of the disappearance of ten citizens of the village of Alkhan-Kala during the mop-up operation from 19-21 April 2001,[2] the head of the local administration had requested from the military prosecutor information about the stage of the investigations, without success”.

On 4 October 2001 the applicant received a copy of a letter from the prosecutor’s office of the Chechen Republic addressed to the district prosecutor’s office, in which the latter was instructed to conduct an additional investigation in criminal case no. 19051, opened in relation to the unlawful detention of several residents of Alkhan-Kala. A criminal case file containing 123 pages was listed as an attachment.

On 15 October 2001 the applicant wrote a letter to the prosecutor’s office of the Chechen Republic in which she restated in detail the circumstances of her husband’s arrest. She asked for a criminal case to be opened in relation to Sultan Isayev’s disappearance and for information as to his whereabouts.

In a decision of 18 October 2001 the Oktyabrskiy District Court of Grozny established as a legal fact that the applicant’s husband had been missing since 29 April 2001.

On 22 October 2001 the prosecutor’s office of the Chechen Republic replied to the applicant that a criminal case had been opened and was being investigated by the district prosecutor’s office. The letter contained no further details.

On 24 October 2001 the applicant was informed in a letter from the Government of the Chechen Republic that following her complaint the Chechen Department of the Interior had been instructed to take all measures to establish Sultan Isayev’s whereabouts.

On 31 October 2001 the applicant contacted the Chechen Department of the FSB, asking for help to locate her husband. She referred to the statements of the deputy mayor of Grozny, Mr Dzhabrailov, to the effect that he was a FSB officer and was aware of the criminal case in connection with which her husband had been detained.

On 6 November 2001 the Chechen Department of the FSB replied to the applicant that it had no information about the ten missing persons and that Musa Dzhabrailov was not one of its officers.

On 3 December 2001 the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic, on the applicant’s behalf, requested information about the investigation from the prosecutor’s office of the Chechen Republic.

In April 2002 Human Rights Watch issued a report entitled “Last Seen...: Continued ‘Disappearances’ in Chechnya”. It contained an account of the detention and disappearance of several men from Alkhan-Kala and referred to the absence of any results from an allegedly pending investigation.

On 8 September 2002 the criminal proceedings in case no. 19051 were suspended on the ground that it was impossible to identify the perpetrators.

On 9 October 2002 the district prosecutor’s office issued the applicant with a certificate stating that she was a victim in criminal case no. 19051, opened in connection with her husband’s abduction on 29 April 2001. According to the applicant, no formal decision granting her the status of victim had been taken.

On 15 February 2003 the applicant wrote to the district prosecutor’s office, the prosecutor’s office of the Chechen Republic, the Prosecutor General’s Office, the military commander’s office of the Groznenskiy District and the Federal Department for Rights and Freedoms in Chechnya (Управление Федерации по обеспечению прав и свобод человека и гражданина в Чеченской Республике). She stated that her husband had been taken away during a “sweeping-up” operation on 29 April 2001 and that the criminal proceedings instituted in that connection had been suspended on two occasions. The applicant also requested the public bodies concerned to assist her in her continued search for her husband.

In a letter of 18 March 2003 the prosecutor’s office of the Chechen Republic informed the applicant that on 4 May 2001 the Groznenskiy prosecutor’s office had instituted criminal proceedings in connection with “the unlawful detention by servicemen of the federal forces” of a number of residents of Alkhan-Kala, including Sultan Isayev, “during a special operation”. The letter further stated that the investigating authorities had been unable to establish which power structures had participated in the detention of the villagers and that the investigation had therefore been adjourned on 8 September 2002; however, on 26 February 2003 it had been resumed and at present measures were being taken to find the missing persons and to identify those responsible. The letter then invited the applicant to apply to the Groznenskiy prosecutor’s office for explanations concerning the investigation.

On 17 April 2003, on the applicant’s behalf, the SRJI requested the Grozny prosecutor’s office (прокуратура г. Грозного) to provide information concerning the results of the investigation following its reopening on 26 February 2003. It also requested that the applicant be sent a copy of a decision declaring her to be a victim.

On an unspecified date the investigation into the disappearance of Sultan Isayev and several other residents of Alkhan-Kala had been suspended; it was resumed on 24 April 2003.

On 6 May 2003 the prosecutor’s office of the Chechen Republic referred the applicant’s query to the district prosecutor’s office, informed her of the latest decision to resume the investigation and stated that the search for the men detained on 29 April 2001 and those involved in that offence was currently under way.

On 26 June and 2 and 27 August 2003 the applicant and the SRJI, on her behalf, requested the district prosecutor’s office to grant the status of victim to the applicant and to update her on the results of the investigation.

In a letter of 22 September 2003 the prosecutor’s office of the Chechen Republic notified the applicant that the criminal proceedings in case no. 19051 had been resumed on 17 September 2003 and that the investigation was being carried out by the prosecutor’s office of the Chechen Republic. The letter also stated that on 31 July 2003 the status of victim had been granted to the applicant’s father-in-law, that she herself had never requested to be declared a victim in the case and that she should apply to the same prosecutor’s office so that a decision granting her the status of victim could be taken.

On 31 October 2003 the applicant requested the prosecutor’s office of the Chechen Republic to declare her to be a victim in criminal case no. 19051. In reply, the prosecutor’s office stated in a letter of 11 December 2003 that she should report in person to the prosecutor’s office of the Chechen Republic so that she could be declared a victim and that the criminal proceedings in case no. 19051 had been adjourned for failure to identify the perpetrators but the search for her husband was in progress.

It appears that some time later the investigation was resumed, as, according to the Government’s submissions, on 30 April 2004 it was again suspended since it had been impossible to find those responsible, and was subsequently resumed on 22 November 2004. Despite a specific request from the Court, the Government did not submit any documents from the file in case no. 19051, having quoted the reply from the Prosecutor General’s office to the effect that the 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 and other participants in the criminal proceedings.

According to the applicant, throughout the investigation she had received only two summonses from the district prosecutor’s office, dated 15 and 18 October 2002, although she had repeatedly visited the prosecutor’s office of her own motion. She submitted that during her visits she had unsuccessfully requested to be granted the status of victim of a crime.

In January 2004, upon receipt of the letter of 11 December 2003, the applicant had visited the prosecutor’s office of the Chechen Republic and requested to be declared a victim. She had allegedly been told that the investigator in charge was absent and that no other person had the power to take such a decision. The applicant had visited the prosecutor’s office of the Chechen Republic again in February 2004 and talked to the investigator in charge. The latter had allegedly refused to grant her the status of victim, referring to the fact that the criminal case concerning her husband’s abduction had been transferred to the military prosecutor’s office of military unit no. 20102 in Khankala. The investigator had allegedly refused to inform the applicant of the date of the transfer or to issue her with any document attesting to her visit.

In late April or early May 2004 the applicant went to the military prosecutor’s office of military unit no. 20102. According to the applicant, officials from that prosecutor’s office had at first refused to talk to her or let her in. Some time later the applicant had been allowed to enter the premises of the military prosecutor’s office and had managed to talk to Colonel Evgeniy Poddubny, an assistant prosecutor from the military prosecutor’s office attached to the United Group Alignment. According to the applicant, Colonel Poddubny had expressed his surprise that she had not yet been acknowledged as a victim in case no. 19051 and had stated that it was now 2004 whereas the criminal proceedings had been instituted in 2001, and that it was therefore highly unlikely that she would now be granted the status of victim or that the investigating authorities would be able to identify those involved in Sultan Isayev’s abduction, given that the term of those persons’ military service in Chechnya had expired long ago and they had left for their permanent place of service. Then Colonel Poddubny, at the applicant’s request, wrote on a piece of paper that the case file had been received by the military prosecutor’s office of the United Group Alignment on 8 April 2004. The applicant furnished the Court with a copy of that statement.

The applicant had also submitted a written request to the registry of the prosecutor’s office to be granted the status of victim and to be updated on the results of the investigation. She stated that she had been told that a reply would be sent to her place of work, but she had not received any letters to date. During their conversation Colonel Poddubny had stated that the applicant should have been grateful that she had met him at the prosecutor’s office, because no other official would have given her any explanations, and because he would help her out of the premises. He had also stated that she had been lucky to enter the premises of the military prosecutor’s office but would also need luck to get out, and that next time it would be better if she refrained from coming to Khankala. Colonel Poddubny then ordered another officer to accompany the applicant outside the territory of Khankala and to report back to him afterwards.

According to the applicant, she was frightened to visit the military prosecutor’s office of military unit no. 20102 ever again, even though she did not receive any letters from it informing her of the 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 establishes the rule that data 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 and 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 the criminal proceedings without their permission.

COMPLAINTS

1. The applicant complained that Article 2 of the Convention had been violated in respect of Sultan Isayev. She submitted that the circumstances of his detention, the absence of any news of him ever since and the discovery two weeks later of the body of one of the persons detained with him, showing signs of a violent death, indicated that he too had been killed by the federal forces. She further claimed that there had been a violation of Article 2 in its procedural aspect since no effective investigation had been carried out into the circumstances of her husband’s detention and disappearance.

2. The applicant submitted that she had reason to believe that Sultan Isayev had been subjected to treatment contrary to Article 3 of the Convention following his arrest and that there had been no effective investigation into the matter. The applicant also complained that she had suffered severe mental distress and anguish amounting to ill-treatment falling within the scope of Article 3 of the Convention.

3. The applicant claimed that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Sultan Isayev.

4. The applicant submitted that she had been deprived of access to a court, contrary to the provisions of Article 6 § 1 of the Convention, since in the absence of any findings from the criminal investigation into the disappearance of Sultan Isayev, she had been unable effectively to bring a civil claim for compensation.

5. The applicant alleged that there were no effective remedies in respect of the alleged violations of Articles 2, 3 and 5, in breach of Article 13 of the Convention.

6. Lastly, in her observations of 16 February 2005 the applicant claimed that the Government’s refusal to submit the file in criminal case no. 19051 was in breach of the State’s obligations under Article 34 of the Convention.

THE LAW

The applicant complained under Article 2 of the Convention that her husband had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. The applicant further relied on Article 3 of the Convention, submitting that her husband had most likely been tortured after having been apprehended, but that no effective investigation had been carried out on that account. The applicant also claimed that as a result of her husband’s disappearance and the State’s failure to investigate those events properly, she had endured mental suffering in breach of Article 3 of the Convention. She further stated that Sultan Isayev had been detained in violation of the guarantees of Article 5 of the Convention. The applicant also alleged that she had had no access to a court, contrary to Article 6 § 1 of the Convention, as she had been unable to bring a civil action for compensation for her husband’s disappearance since the investigation had produced no results. Lastly, the applicant complained that she had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention. The respective Articles, 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 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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 6

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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. Exhaustion of domestic remedies

1. Submissions by the parties

The Government contended that the application should be declared inadmissible as the applicant had failed to exhaust the domestic remedies available to her. With reference to the Constitution and other domestic legal instruments, the Government argued that it had been open to the applicant to lodge complaints, in courts in various regions of Russia or directly in the Supreme Court of Russia, about the allegedly unlawful detention of her husband or about the actions or omissions of the investigating or other law-enforcement authorities, but she had not availed herself of that remedy. The Government enclosed a number of letters from various higher courts in Russia, stating that the applicant had never lodged any such complaints with the courts in question. They also argued that the authorities had twice invited the applicant to visit the prosecutor’s office of the Chechen Republic with a view to granting her the status of victim, but the applicant had failed to appear.

The applicant disputed the Government’s objection. She stated that an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in her case. In this connection she relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, and on documents by human rights NGOs and the Council of Europe. The applicant contended that, in any event, she had repeatedly applied to law-enforcement bodies, including various prosecutors, and had actively participated in the investigation. This avenue, however, had proved futile, given that the criminal investigation had by now been pending for almost four years but had failed to identify those involved in the illegal detention and disappearance of Sultan Isayev despite compelling evidence confirming the involvement of federal servicemen. The applicant also argued that the Government had failed to demonstrate that a court complaint against the actions or omissions of the investigating authorities would have been an effective remedy in her situation. She stated that under domestic law a court, in examining such a complaint, could order the investigating authorities to resume the investigation or take certain investigative measures. In this connection she pointed out that the investigation into her husband’s abduction had been resumed on several occasions following her complaints to higher prosecutors; however, so far it had produced no results. The applicant therefore argued that court complaints against the investigators would not have changed the situation, and therefore she had been under no obligation to make use of that remedy. She also referred to the Court’s established case-law to the effect that, in any event, the authorities had to carry out the investigation of their own motion once the matter had come to their attention, without leaving it to the initiative of the next-of-kin to take responsibility for the conduct of any investigative procedures. The applicant further denied the Government’s allegation that she had failed to appear at the prosecutor’s office of the Chechen Republic and that this had prevented the investigators from granting her the status of victim. She contended that on numerous occasions she had written to, and visited in person, various prosecutors’ offices in Chechnya but had never been granted the status of victim.

2. 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.

B. As to the merits of the application

1. The Government

The Government argued that only the inflicting of death could be regarded as a deprivation of life for the purposes of Article 2 of the Convention and that there were no grounds to believe that Sultan Isayev or any other residents of Alkhan-Kala detained on 29 April 2001 were in fact dead, given that their deaths had not been established by courts, in accordance with domestic law. The Government further stated that that the investigation into those events was still pending and that, until the circumstances of Sultan Isayev’s disappearance were established by the investigating authorities, there were no grounds for claiming that his right to life had been breached by State agents. They further conceded that the investigation in the present case had been suspended and resumed on several occasions and had not yet identified the perpetrators, but argued, relying on the opinion of the Prosecutor General’s Office, that the investigation had met the Convention requirement of effectiveness.

The Government contended that there was no evidence that Sultan Isayev or the applicant had been subjected to treatment prohibited by Article 3 of the Convention. In their view, the investigation had not breached the requirements of that provision.

In the Government’s submission, no evidence had been obtained to confirm that the applicant’s husband had been detained in breach of the guarantees set out in Article 5 of the Convention. Sultan Isayev was not listed among the persons being kept in detention centres.

The Government also contended that the applicant had had access to a court, as required by Article 6 § 1 of the Convention, and to effective domestic remedies, as required by Article 13 of the Convention. They submitted that the applicant had received reasoned replies to all her requests concerning the progress of the investigation and had been duly informed of all decisions to suspend and resume the investigation.

2. The applicant

The applicant contested the Government’s arguments and maintained her complaints. In her opinion, it was beyond reasonable doubt that the men who had apprehended and taken away her husband on 29 April 2001 had represented federal forces, given that the fact that those forces had carried out a special operation in Alkhan-Kala on the date in question had been confirmed by eyewitness statements submitted by the applicant and acknowledged by the Government in their memorial. The applicant accordingly argued that following his arrest, Sultan Isayev had been under the control of the State. She claimed that the Government’s argument that Sultan Isayev was not listed among those being held in detention centres merely proved that her husband’s life had been endangered after he had been arrested, since it was widespread practice in Chechnya that people apprehended by State agents were deprived of their lives immediately, or shortly, after being apprehended rather than being taken to detention centres.

The applicant thus stressed that her husband had been apprehended in life-endangering circumstances and argued, relying on Article 2 of the Convention, that the fact that he had remained missing since 29 April 2001 proved that he had been killed. She also claimed that the special operation carried out on the aforementioned date had not been properly planned and supervised by the authorities to ensure that it met the requirements of Article 2 of the Convention.

As regards the procedural aspect of Article 2 of the Convention, the applicant claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of her husband’s disappearance. She argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for almost four years but had not brought any tangible results so far, having been repeatedly suspended and reopened. Furthermore, the investigating authorities had failed to inform the applicant about the decisions concerning the adjournment and reopening of the investigation or its progress. Throughout the investigation the applicant had requested to be granted the status of victim of a crime, but had received no replies to those requests. In support of her argument regarding the inefficiency of the investigation, the applicant also referred to the Government’s refusal to submit a copy of the file in the criminal case concerning her husband’s disappearance.

The applicant maintained that there were serious reasons to believe that her husband had been ill-treated after being apprehended. She referred to applications submitted to the Court by other individuals claiming to be victims of similar violations, and to documents by human rights NGOs and the Council of Europe reporting numerous instances where people detained in Chechnya had been found dead, or had returned from custody, showing signs of torture or ill-treatment. The applicant further stated that the authorities had failed to investigate her allegation that her husband had been ill-treated. The applicant also maintained that she had endured severe mental suffering falling within the scope of Article 3 of the Convention in view of the State’s indifference to her husband’s disappearance and its repeated failure to inform her of the progress in the investigation.

The applicant subsequently argued that Sultan Isayev’s detention 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.

The applicant further insisted that she was unable to seek compensation in court for her husband’s unlawful detention until the investigation into the events had been completed, a fact which, in her view, breached her right of access to a court under Article 6 § 1 of the Convention.

Lastly, the applicant relied on Article 13 of the Convention, alleging that in her case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for about four years without any progress, that she had never been granted the status of victim of a crime and that all her applications to public bodies had remained unanswered or had only produced standard replies.

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

Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident

[1]1. Malika Umazheva was killed in her house on 29 November 2002 by unidentified gunmen.

[2]2. According to the applicant, there was a mistake in the dates of the operation given in the report.

Full & Egal Universal Law Academy