KHASUYEVA v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28159/03
by Zura Abdullayevna KHASUYEVA
against Russia

The European Court of Human Rights (First Section), sitting on 25 September 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 29 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, Ms Zura Abdullayevna Khasuyeva, is a Russian national who was born in 1955 and lives in the town of Urus-Martan, Chechnya. She is represented before the Court by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government were represented by their Agent, Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

A. Circumstances of the case

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

At the material time the applicant lived together with her son, Abu Khasuyev, born in 1978, his wife and his minor daughter. Abu Khasuyev worked as a physical training teacher. The family lived in a flat in a two-storey block of flats at 20 Sovetskaya Street, Urus-Martan. The applicant submitted a copy of Abu Khasuyev's passport with the official registration of his domicile at 20 Sovetskaya Street in Urus-Martan. According to the applicant, houses in the street were renumbered at some point later after the events and their address was changed to 18 Sovetskaya Street. According to the Government, at the material time the applicant and her family resided at 18 Sovetskaya Street.

1. General background

As of December 1999 the federal armed forces exercised firm control over the town of Urus-Martan. Numerous federal military units were stationed in the town and at its outskirts. Various public bodies, including the town administration, the district military commander's office, and law enforcement agencies, functioned properly.

In August 2001 the federal military authorities further surrounded the town by checkpoints so as to ensure that all transport going in or out of Urus-Martan passed through those checkpoints.

At the time of the events described below one of the checkpoints was located just opposite the block of flats in which the applicant and her relatives lived. In the close proximity there was another checkpoint, the town administration and the Urus-Martan district office of the interior (the Urus-Martan ROVD). The applicant submits that several police officers stood watch on the roof the Urus-Martan ROVD around the clock and her house was within sight from that rooftop. The applicant produced a photograph of the street in which her house was situated and indicated the location of the checkpoints and the respective administrative buildings.

2. Apprehension of Abu Khasuyev

The applicant did not witness the detention of her son, and her account was based on eye-witness statements submitted with her application.

According to the applicant, on 30 August 2001, during the daytime she was at work. Her son was home. He suffered from pleurisy and was in bed with an intravenous drip. His wife, their daughter and one of the applicant's sisters were also at home.

Around 1 p.m. the applicant's daughter-in-law was about to leave for a local food market. When she opened the door, a group of about ten men in camouflage uniforms rushed into the flat. They had machine-guns and sniper rifles with silencers (“vintorez”). They were wearing masks except for two of them. Those unmasked were fair-haired and blue-eyed and had a Slavic appearance. According to the applicant and her relatives, the appearance of the two intruders demonstrated that the group belonged to the Russian federal forces. In addition, these men spoke Russian without accent. The Government disagreed with the applicant and stated that the appearance of the two men had not meant that they were of a Slavic background as Chechens also could have had a similar appearance and that there was no evidence that the intruders had belonged to federal forces.

The men did not produce identity papers or any documents to justify their actions, gave no explanations and quickly searched the flat. According to the Government, the intruders did not search the flat; one of them just quickly looked into the ceiling cabinet above the closet.

The applicant's sister lost consciousness at the sight of the intruders. The men pushed the applicant's daughter-in-law back and two of them pointed their machine-guns at her. Another one aimed his machine-gun at her three-month-old daughter. The applicant's daughter-in-law heard the intruders enter the room in which Abu Khasuyev was lying and one of them order the others to lay him on the floor. Then she saw her husband being escorted by the men out of the flat. He was barefoot, a T-shirt which he was wearing was stretched over his head and his hands were raised behind his head.

The applicant's daughter-in-law asked one of the unmasked men what were the reasons for Abu Khasuyev's detention and where he was being taken. The intruder asked in reply who she was to the apprehended person, his wife or sister. The applicant's daughter-in-law replied that she was Abu Khasuyev's wife, and the man ordered the others not to let her out. Then the men attempted to lock the flat door, but the applicant's daughter-in-law suddenly pushed the door open and ran into the entrance hall of the block of flats. The Government contested that the applicant's daughter-in-law could have pushed the door open as it was propped up from the other side by two strong men. The intruders then blocked the entrance door from the outside, and the applicant's daughter-in-law started shouting.

The men took Abu Khasuyev outside and forced him into a white VAZ-2107 Zhiguli car parked in the courtyard about two meters away from the checkpoint. According to eye-witness statements, the officers who stood watch at the checkpoint near the applicant's house, made no attempts to interfere with Abu Khasuyev's apprehension. Two intruders sat on both sides of Abu Khasuyev, and another one ordered the others to go to “the base”. One of the men kept the gathering people off the car, threatening with his machine-gun and shouting that the detainee had a grenade.

When the applicant's daughter-in-law managed to go outside she ran towards the white Zhiguli car and saw her husband sitting there with his tied hands crossed behind his head. He had no grenade. A red VAZ-2121 Niva car with a man in military uniform and an UAZ minibus (“tabletka”) with several masked men in camouflage uniforms were parked nearby. All the vehicles had tinted windows and had no registration plates. The vehicles then left in the northern direction.

The Government in their observations did not challenge most of the facts as presented by the applicant with the exception of the few remarks indicated above. They stated that it had been established that “on 30 August 2001, at about 13 o'clock, unidentified persons in camouflage uniforms and masks, armed with automatic firearms, abducted A. Kh. Khasuyev from 18 Sovetskaya Street in the town of Urus-Martan, 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 Abu Khasuyev had been servicemen of the Russian military forces.

3. The applicant's search for Abu Khasuyev

Immediately thereafter the applicant's daughter-in-law found the applicant and told her about Abu Khasuyev's detention.

According to the applicant, on 30 August 2001 she went to the Urus-Martan ROVD and submitted a written complaint to its head. The latter told her that he was unaware of her son's apprehension.

On the same date the applicant went to the military commander's office and talked to a duty officer who informed her that the military commander was away.

On 31 August 2001 the applicant requested in writing that the military commander, the head of the Urus-Martan ROVD and the head of the Urus-Martan administration assist her in establishing her son's whereabouts.

On 1 September 2001 the applicant talked to the military commander, General-Major Gadzhiyev. The latter told her that he had been away from town on 30 August 2001, was unaware of the incident and invited her to come again on 3 September 2001.

On the latest date the applicant again met Mr Gadzhiyev and enquired about her son. The military commander asked her whether she was talking about someone from the two-storey block of flats. The applicants answered in the positive and then Mr Gadzhiyev told her that the person in question was not kept in the military commander's office and had probably been sent to the Chernokozovo detention centre.

The next day the applicant went to Chernokozovo and talked to the head of the detention centre who informed her that Abu Khasuyev was not listed among the detainees.

On 20 September 2001 the applicant talked to the deputy head of the Chechnya Department of the Federal Security Service (the Chechnya Department of the FSB) who assured her that their officers had not apprehended her son and were unaware of his whereabouts. He also stated that it was now difficult to find out who had detained Abu Khasuyev, as there were a lot of various military units in Urus-Martan.

Thereafter the applicant has repeatedly applied in person and in writing to various public bodies, including prosecutors of various levels, administrative authorities of Chechnya, the Urus-Martan ROVD, the Urus-Martan military commander, the Chechnya Department of the FSB, the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms, a deputy of the State Duma, and the Russian President. She also addressed the OSCE and various NGOs, including Memorial and the International Committee of the Red Cross. In her letters to the authorities the applicant referred to the facts of her son's apprehension and disappearance and asked for assistance and details of the investigation. She also stated that her son was a school teacher and had never participated in illegal armed groups. Those enquiries mostly remained unanswered, or only formal responses were given by which the respective requests were forwarded to various prosecutor's offices “for examination”.

According to the applicant, she and her daughter-in-law also participated in examinations of unidentified corpses found on the territory of Chechnya.

4. Official investigation

At some point in October 2001 an investigator of the Urus-Martan ROVD visited the applicant at home and informed her that a search for her son had been commenced on 10 October 2001. The investigator then questioned the applicant, her daughter-in-law and one of the neighbours. According to the applicant, the questions related mostly to Abu Khasuyev's personality rather than to the circumstances of his disappearance.

Some time later that month the applicant was also summoned to the Urus-Martan ROVD, and the investigator in charge who called himself Sasha told her that her son was dead. In reply to the applicant's request for proof, the investigator referred to a certain register in which there was an entry to that effect. Some time later she talked to an officer of the Urus-Martan ROVD who showed her the register and read out that “Khasuyev had been killed”. During the ensuing conversation the applicant found out that the investigator had referred to another person by mistake. The investigator then assured the applicant that the search for her son would be continued.

By letter of 29 October 2001 the Chechen Department of the Federal Security Service informed the applicant that they had not detained Abu Khasuyev, and that they had been unable to establish his whereabouts.

On 12 November 2001 the military prosecutor of the North Caucasus Military Circuit transmitted the applicant's complaint about her son's abduction to the military prosecutor of military unit no. 20102.

On 22 December 2001 the Urus-Martan district prosecutor's office (the Urus-Martan prosecutor's office) opened a criminal investigation into Abu Khasuyev's disappearance under Article 126 § 1 of the Criminal Code (kidnapping). The file was given no. 25170.

On 9 January 2002 the applicant was granted the status of a victim in the criminal case.

On 22 February 2002 the Urus-Martan prosecutor's office suspended the investigation in criminal case no. 25170 owing to the failure to establish the perpetrators. The applicant was informed about this decision only on 3 December 2002 (see below).

On 18 April 2002 the Department for Administration of Punishments of the Volgograd Region in reply to a query from the prosecutor's office of the Volgograd Region dated 9 April 2002 informed the applicant that Abu Khasuyev was not kept in the pre-trial detention centres or penitentiary facilities of the Volgograd Region.

On 1 July 2002 the office of Mr Aslakhanov, the deputy of the State Duma, referred the applicant's complaint to the Chechnya prosecutor's office.

By letter of 2 October 2002 Department of the Prosecutor General's office 2002 in the Southern Federal Circuit forwarded the applicant's request for assistance in establishing Abu Khasuyev's whereabouts to the Chechnya prosecutor's office “for examination”.

In its letter of 3 December 2002 the Chechnya prosecutor's office notified the applicant that the criminal proceedings instituted on 22 December 2001 in connection with the abduction of her son had been suspended on 22 February 2002 and then resumed on 20 November 2002, and that the investigation was currently in progress. The letter also invited the applicant to address her further queries to the Urus-Martan prosecutor's office.

On 24 March 2003 (in the submitted documents the date is also stated as 25 March 2003) the Urus-Martan prosecutor's office suspended the investigation in criminal case no. 25170 owing to the failure to establish the perpetrators. The applicant was not informed about this decision.

On 5 April 2003 the military prosecutor of the United Group Alignment forwarded the applicant's complaint about her son's abduction to the military prosecutor of military unit no. 20102. The latter informed the applicant on 16 and 22 May 2003 that “her request did not contain any data on the involvement of the military personnel in the abduction of Abu Khasuyev”.

On 4 October 2003 the Urus-Martan prosecutor's office suspended the investigation in criminal case no. 25170 owing to the failure to establish the perpetrators. The applicant was informed about the decision on the same date.

On 20 January 2004 the Urus-Martan prosecutor's office informed the applicant that on 4 October 2003 they had suspended the investigation into her son's disappearance.

On 27 April 2004 the Urus-Martan prosecutor's office rejected the applicant's request for access to the investigation file in criminal case no. 25170 and to make photocopies of its materials, stating that the access could be granted only upon completion of the criminal investigation.

By letter of 7 June 2004 the Urus-Martan prosecutor's office informed the applicant that the investigation instituted into Abu Khasuyev's abduction had been suspended in view of the expiration of the time-limits and the failure to establish the perpetrators.

On 7 August 2004 the applicant requested the Urus-Martan prosecutor's office to inform her of any further developments in case no. 25170. It does not appear that she received any reply to this request.

On 15 August 2004 the Urus-Martan prosecutor's office reopened the investigation in criminal case no. 25170. The applicant was informed about the decision on the same date.

On 3 December 2004 the applicant requested the Urus-Martan prosecutor's office to inform her of any further developments in case no. 25170. It does not appear that she received any reply to this request.

On 16 June 2005 the applicant complained to the Urus-Martan district prosecutor about her son's abduction by servicemen of the Urus-Martan power structures (силовых структур). In her letter she pointed out that the employees of the Urus-Martan district military commander's office had witnessed the abduction as they had been on watch in close proximity from her house. The applicant pointed out that she had already submitted her account to this effect to the investigative authorities but the latter had been unable to establish the whereabouts of her abducted son. The applicant complained about the lack of information concerning the investigation and requested to be informed in writing about its progress and the measures undertaken by the prosecutor's office. The applicant did not receive any reply to this complaint.

On 15 September 2004 the Urus-Martan prosecutor's office suspended the investigation in criminal case no. 25170 owing to the failure to establish the perpetrators. The applicant was informed about the decision on the same date.

On 21 October 2005 the applicant again complained to the Urus-Martan prosecutor's office. She stated that she had not received any response to her request of 16 June 2005 and pointed out that the lack of information concerning the criminal proceedings precluded her from appealing the actions of the prosecutor's office, which had been procrastinating with the investigation. The applicant requested to be informed about the progress of the investigation and asked the authorities to resume the investigation in the criminal case. It does not appear that she received any reply to this complaint.

On 25 October 2005 the Urus-Martan prosecutor's office reopened the investigation in criminal case no. 25170 owing to “the need to carry out a number of investigative actions aimed at solving the crime”. The applicant was informed about this decision on the same date.

On 25 November 2005 the Urus-Martan prosecutor's office suspended the investigation in criminal case no. 25170 owing to the failure to establish the perpetrators. The applicant was informed about this decision on the same date.

On 19 June 2006 the Urus-Martan prosecutor's office reopened the investigation in criminal case no. 25170. The applicant was informed about the decision on the same date.

According to the applicant, she had not been informed about the present state of the criminal proceedings.

Referring to the information provided by the Prosecutor General's office, the Government submitted in their Memorandum dated 13 July 2006 that upon receipt of the applicant's written complaint about her son's abduction, on 22 December 2001 the Urus-Martan prosecutor's office had opened criminal case no. 25170 under Article 126 of the Criminal Code (kidnapping). At some point later the abduction of the applicant's son had been classified under Article 126 § 2 (aggravated kidnapping). Since then the criminal investigation had been suspended on a number of occasions, specifically, on 22 February 2002, 24 March 2003, 4 October 2003, 15 September 2004, 25 November 2005 and resumed on 20 November 2002, 4 September 2003, 15 August 2004, 25 October 2005 and on 19 June 2006; but it had failed to identify those responsible for the abduction of the applicant's son. The applicant had been duly informed about all suspensions and reopenings of the criminal proceedings. The Government submitted that criminal case no. 25170 was now being investigated by the Urus-Martan prosecutor's office under supervision of the Prosecutor General's office.

According to the Government, on 9 January 2002 the applicant was granted the victim status in criminal case no. 25170 and questioned, on 9 January 2002 and 6 September 2004, about the circumstances of her son's abduction. The applicant testified that she had not been at home during her son's abduction and she had found out about the events from her relatives. On an unspecified date the applicant's sister and the applicant's daughter-in-law had been also questioned by the investigation. The former stated that after the abductors had entered the house she had fallen unconscious and had not witnessed the events. The applicant's daughter-in-law had stated that the intruders had placed Abu Khasuyev in a car and had taken him away in an unknown direction. According to the Government, no other eye-witnesses of the crime, including those listed in the application to the Court, had been questioned by the investigation as the applicant and her relatives had failed to inform the investigation about these witnesses. It had been impossible for the investigation to question the Urus-Martan district military commander as he had been killed in a terrorist attack on 29 November 2001.

The Government submitted that the investigation had failed to establish the perpetrators of Abu Khasuyev's abduction. However, on eight occasions 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 Abu Khasuyev's abduction 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 Abu Khasuyev, had never opened any criminal proceedings against him and had not placed him in detention.

Despite specific request made by the Court, the Government refused to submit a copy of the entire investigation file in criminal case no. 25170, 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 22 December 2001 to institute criminal proceedings in connection with Abu Khasuyev's abduction;

(b) a procedural decision of 9 January 2002 to grant the applicant the status of a victim in criminal case no. 25170;

(c) procedural decisions concerning suspensions and reopenings of the investigation in case no. 25170;

(d) investigators' decisions to take up case no. 25170;

(e) procedural decisions concerning extension of the time limits for the investigation in case no. 25170;

(f) letters informing the applicant about suspensions and reopenings of the investigation in criminal case no. 25170.

5. Court proceedings against prosecutors

On 15 June 2004 the applicant complained about the inactivity of the Urus-Martan prosecutor's office to the Urus-Martan Town Court (“Town Court”). She requested the court to order the prosecutor's office to re-commence the criminal proceedings, carry out a complete and effective investigation, take necessary investigative measures and authorise her access to the investigation file.

On 29 June 2004 the town court gave its decision. It observed that criminal case no. 25170 had been opened in connection with the abduction on 30 August 2001 of the applicant's son by “unidentified persons in military uniforms”. The court examined the materials of the criminal case and noted that the authorities had taken a number of investigative actions in the course of the investigation, and in particular questioned one witness and sent queries and requests to various law enforcement agencies, the latter having replied that they had not detained Abu Khasuyev. The court then observed that the investigating authorities had been unable to identify the perpetrators with the result that the preliminary investigation had been suspended and reopened on several occasions, with the last suspension of the proceedings on 4 October 2003. On the other hand, the court noted that it transpired from the materials of the criminal case that the preliminary investigation had not been completed, and, in particular, the authorities had not interrogated the applicant's sister and daughter-in-law who had witnessed Abu Khasuyev's apprehension, nor established the identities of the officers who had stood watch at the checkpoint near the applicant's house on 30 August 2001. The court concluded that the applicant's complaint in this part was well-founded and ordered the prosecutor's office to carry out a complete and effective investigation. As regards the applicant's request to allow her to examine the file of criminal case no. 25170, the court stated that by virtue of Article 42 of the Code of Criminal Procedure, a victim's full access to the case file materials was possible only upon completion of the preliminary investigation. The investigation concerning Abu Khasuyev's abduction had been suspended, but not yet completed, and therefore the applicant had no right of access to the investigation file. The court dismissed the applicant's complaint in this part accordingly.

The applicant appealed against the above decision in so far as her request to grant her access to the case file had been rejected. She referred, among others, 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.

By decision of 17 August 2004 the Chechnya Supreme Court dismissed the applicant's appeal, thus upholding the first instance decision of 29 June 2004. The applicant did not attend the court session.

B. Relevant domestic law

Until 1 July 2002 criminal-law matters were governed by the 1960 the 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 her son, Abu Khasuyev. She claimed in this respect that the circumstances of her son's apprehension, his further disappearance and the long period during which his whereabouts had not been established had clearly indicated that Abu Khasuyev had been apprehended and then murdered by the federal servicemen. The applicant also claimed that the State had failed in its positive obligation to protect Abu Khasuyev's life. Finally, she complained that no proper investigation into the crime had been conducted.

2. The applicant relied on Article 3 of the Convention, stating that she had suffered severe mental distress and anguish in connection with the disappearance of her only son and on account of the State's failure to conduct a thorough investigation in this respect.

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 Abu Khasuyev.

4. The applicant referred to Article 6 § 1 of the Convention complaining about the unfairness of the proceedings brought by her against the prosecutors. In particular, she stated that the judges who had examined her complaint had not been independent, as they had been influenced by the prosecutor's office, that the principle of the equality of arms had been breached since she had not been summoned to the appeal instance, and that the courts had failed properly to examine her complaints and give reasoned decisions.

5. In her initial application the applicant relied on Article 8 of the Convention in that the intrusion by the Russian military into her house on 30 August 2001 and the ensuing search had been unlawful and had infringed her right to respect for her private life and home. In her 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 her above complaints contrary to Article 13 of the Convention.

7. Lastly, in her observations of 10 September 2006 the applicant complained that the Government's refusal to submit a copy of the investigation file in criminal case no. 25170 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, 3, 5, 6 § 1 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 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

“1. 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...”

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 of the applicant's son was still pending.

The applicant contended that the Government had not indicated which particular domestic remedy she had not exhausted. She further stated that the Government's argument to the effect that the investigation was pending related to the merits of the present case rather than to the question of its admissibility.

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

Relying on Article 6 § 1 of the Convention the applicant complained about unfairness of the proceedings brought by her against the prosecutors.

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 investigation had not obtained any evidence to the effect that representatives of the Russian federal forces had been involved in the abduction of Abu Khasuyev. They argued therefore that there were no grounds to claim that Abu Khasuyev's right to life secured by Article 2 of the Convention had been breached by representatives of the Russian power structures. The Government further claimed that the investigation into the disappearance of the applicant's son met the Convention requirement of effectiveness as all measures envisaged in national law were being taken to identify those responsible.

The Government contended that there was no evidence confirming that the applicant had been subjected to treatment in breach of Article 3 of the Convention. They further submitted that “the investigation did not receive any information concerning inhuman or degrading treatment of the applicant by officials of the Russian Federation”. The Government contended that “perception of events is a clearly subjective factor which depends on peculiarities of an individual”, and therefore “it is impossible to assess the degree of the applicant's mental suffering”.

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. Abu Khasuyev was not listed among the persons being 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 she 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. Upon her complaint about her son's abduction the authorities had initiated a criminal investigation, which is still in progress”.

(b) The applicant

The applicant disagreed with the Government and maintained her complaints. She argued that it was beyond reasonable doubt that Abu Khasuyev had been detained by representatives of the Russian law enforcement agencies, this fact being confirmed by eyewitness statements. In particular, she stated that the abduction of Abu Khasuyev had been carried out by a large group of Russian-speaking representatives of law enforcement agencies who had been armed and driving the military cars. The applicant's son had been detained during daytime, within close proximity to a checkpoint of the Russian federal forces, in the town centre of Urus-Martan, which had been under the full control of authorities, who nonetheless had failed to undertake any measures to stop her son's abduction. She further stressed that Abu Khasuyev had been apprehended in life-threatening circumstances, given a widespread practice of forced disappearances in Chechnya during the period in question. The applicant thus argued that, in view of the above and given that her son had been missing for almost five years at the time of the submission of the observations, he may be presumed deprived of his life by representatives of the State.

As regards the procedural aspect of Article 2 of the Convention, the applicant claimed that the investigation into her son's disappearance had fallen short of the requirements of domestic law and the Convention standards. She pointed out that although she had informed the authorities about her son's abduction on 30 August 2001, the investigation had not been commenced until 22 December 2001, i.e. more than three and half months after her son's apprehension and disappearance. The applicant pointed out that from 22 December 2001 to 29 June 2004 i.e. for 34 months she had been the only witness questioned by the investigation in criminal case no. 25170. The applicant also pointed out that prior to the communication of her application to the Respondent Government, only she and two of her relatives had been questioned by the investigation; that the authorities had failed to question a number of important witnesses, including the military servicemen who had been on duty at the checkpoint and could have witnessed Abu Khasuyev's abduction, as well as local residents who could have also witnessed the events. In addition, the investigation had failed to undertake any measures to establish the law enforcement agency to which the car used during her son's abduction could have belonged. The applicant argued that the investigation had been excessively long, that it had been pending for almost five years but had failed to produce any tangible results, having been repeatedly suspended and reopened. Furthermore, although the authorities provided the applicant with copies of the decisions concerning the suspensions of the criminal investigation, these documents had not contained sufficient information which would have enabled her to appeal against them. In addition, the applicant had not been granted access to the case file. In support of her argument about the ineffectiveness of the investigation, the applicant also referred to the Government's refusal to submit a copy of the investigation file in the criminal case concerning her son's disappearance.

The applicant further insisted 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 the disappearance of her only son and its repeated failure to inform her about the progress in the investigation.

The applicant reiterated her argument that Abu Khasuyev had been detained by the representatives of the federal law enforcement agencies and argued that his 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.

Lastly, the applicant relied on Article 13 of the Convention, alleging that in her case the domestic remedies had proved to be ineffective. She claimed that in her case the most effective remedy would have been the criminal investigation, which had been pending for several years without any progress and the absence of explanation for its delays. In addition, the applicant complained that she had been deprived of the access to the investigation file which had precluded her from effectively appealing decisions of the investigative authorities and that a number of her requests had been disregarded by the 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, 3, 5 and 13 of the Convention;

Declares admissible, without prejudging the merits, the applicant's complaints under Articles 2, 3, 5 and 13.

Declares inadmissible the remainder of the application.

              André WampachChristos Rozakis              Deputy Registrar              President

 

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