LYANOVA v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 12713/02 and 28440/03
by Asiyat Khusainovna LYANOVA
and Rashan Mayrbekovna ALIYEVA
against Russia

The European Court of Human Rights (First Section), sitting on 28 June 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above applications lodged on 15 February 2002
and on 16 July 2001,

Having regard to the decision to join the applications of 4 January 2005,

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

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mrs Asiyat Khusainovna Lyanova, is a Russian national who was born in 1956. She was a resident of Grozny, but currently lives in Ingushetia as an internally-displaced person (IDP). She was represented before the Court by lawyers from Memorial, a human-rights NGO.

The second applicant, Mrs Rashan Mayrbekovna Aliyeva (Dombayeva), is a Russian national who was born in 1958. She is a resident of Grozny. She was represented before the Court by Mrs Gareth Pierce, a lawyer practicing in London, UK, assisted by the Stichting Russian Justice Initiative (SCJI), an NGO based in the Netherlands with a representative office in Russia. The respondent Government were 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. Detention of the applicants’ sons

The first applicant lived in Grozny, at 10 Lyapidevskogo Street. She has six children, three sons and three daughters. She complained of the disappearance of her son Murad Lyanov, born in 1983.

The second applicant lives in Grozny, at 2 S. Dudayev Boulevard,
apt. 51. Before the hostilities she worked for the Ministry of Defence, as did her husband and several close relatives. In 1996 they were forced to leave Chechnya because of separatist attacks on their family, and lived in Ingushetia for several years as IDPs. They returned to Grozny on 29 May 2000. She complained of the disappearance of her son Islam Dombayev, born in 1984.

On 28 June 2000 the first applicant and her son Murad Lyanov were at home. That evening two friends of Murad, T. (born in 1982) and Islam Dombayev, came to their house. Murad asked the applicant’s permission to go with them and to spend the night at T.’s home. The applicant agreed because she knew the boys, who lived nearby.

The second applicant submitted that her son Islam Dombayev, the first applicant’s son Murad Lyanov and T. had been good friends. The second applicant’s son had a guitar and they often played it in the courtyard of the applicant’s house. They did not normally go out on the street after 9 p.m. because of the curfew imposed by the military. On 28 June 2000 at about 11 p.m. they had gone to T.’s house at 53 Sadovaya Street, adjacent to their street, to spend the night there. Islam Dombayev had his guitar with him.

On 29 June 2000 in the morning the first applicant went to the passport desk of the Leninskiy District Department of the Interior (VOVD) in order to obtain a new passport for her son. She returned home at about 3 p.m. and her daughter told her that Murad had not come home. The first applicant went to see T.’s mother, who told her that her son was not at home either.

On 29 June 2000 in the morning the second applicant, worried about her son, asked a group of military servicemen in Sadovaya Street if they had seen three young men. The soldiers replied that they had detained them and sent them to Khankala, the main Russian military base in Chechnya. The women found the commander of the unit in an armoured personnel carrier (APC), but he denied knowing anything about the three teenagers.

On 30 June 2000 the applicants and T.’s mother went to the Leninskiy VOVD and submitted an application concerning the alleged detention of their sons. On the same day an investigator from that office came to T.’s house and questioned the three women.

According to the applicants, in the first few days after the three boys’ disappearance it became clear from the soldiers’ answers that the boys had been detained late at night on 28 June 2000 by a joint group of servicemen of the special police forces (OMON) from Pskov and special mission brigade no. 8 of Interior Ministry troops (referred to below as Obron-8) stationed in the district. The soldiers had detained the teenagers during a night raid, brought them to the headquarters of Obron-8 and the next morning had taken them to the Khankala military base.

The applicants submitted a copy of the report dated 29 June 2000 sent by the commander of the Pskov OMON unit, Major Gusev, to the head of the Leninskiy VOVD. It read as follows:

“I can report that during the night of 28 to 29 June 2000, [a group of servicemen], together with a reconnaissance unit of Obron-8, staged an ambush in Sadovaya Street, where explosive devices had previously been found, in order to prevent the planting of mines and explosive devices.

At about 11.30 p.m. the group detained three persons covertly moving in the area. A search revealed a number of components and parts of explosive devices, notably:

- a warhead from a 152-mm shell with an opening for a detonator;

- a round for a portable anti-tank gun, also prepared as an explosive device;

- some wires.

One of the detainees attempted to flee. The detainees had no identity documents in their possession. They were taken to Obron-8 headquarters where they were brought to the special [counter-intelligence] unit for questioning. One of the detainees resembled the description of a rebel fighter (“boyevik”) who had attacked at roadblock no. 17 on 24 June 2000 using a flamethrower. ... On the morning of 29 June 2000 the individuals concerned were taken to “Pamir” by the servicemen of Obron-8. No shots were fired during their apprehension.”

On 1 July 2000 an investigator from the Leninskiy VOVD brought the second applicant her son’s guitar. He told her it had come from the commander of Obron-8, named Glushchenko, who alleged that his servicemen had found it in the street. The second applicant still has this guitar.

On 8 July 2000 the same investigator told the second applicant that the three boys had been transferred to Khankala and that the Main Intelligence Service (GRU) of the army was in charge of them. He also allegedly told her that he could do nothing in the circumstances and that she should instead contact the military commander of Grozny.

The applicants have had no news of their sons since this time.

2. Search for the applicants’ sons and the authorities’ replies

Immediately after the detention of their sons, the applicants and other members of their families started to search for them. On numerous occasions, both in person and in writing, they applied to the prosecutors at various levels, the Ministry of the Interior, the Special Representative of the Russian President in the Chechen Republic for rights and freedoms, military commanders, the administrative authorities, the media and public figures.

The applicants personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the Northern Caucasus. The second applicant also went to look at the bodies discovered in a mass burial site in February 2001 in the village of Dachnoye, near the Khankala military base.

Besides personal visits, the applicants sent numerous letters to the prosecutors and other authorities, in which they stated the facts of their sons’ apprehension and asked for assistance and details of the investigation. The applicants submitted copies of letters they had written, all conforming to roughly the same model.

The applicants received very little substantive information from official bodies about the investigation into the disappearances. On several occasions they were sent copies of letters stating that their requests had been forwarded to various prosecutors’ offices. Below is a summary of the letters retained by the applicants and the replies they received from the authorities.

On 10 August 2000 both applicants were informed by the Grozny Town Prosecutor’s Office that it had opened a criminal investigation under Article 126 of the Criminal Code into the abduction of their sons.

On 18 August 2000 an investigator from the Grozny Town Prosecutor’s Office informed the applicants that a criminal investigation file (no. 12113) had been opened following their applications. The investigation had established that the three teenagers had been detained by servicemen from the Pskov OMON and Obron-8 during an ambush in Sadovaya Street and that they had been taken to Obron-8 headquarters the same night. The servicemen from Obron-8 had refused to appear when summoned and could not be questioned; the whereabouts of the three teenagers therefore remained unknown. A special request had been forwarded to the military prosecutor’s office.

On 23 August 2000 a lawyer from the NGO Memorial wrote to the Prosecutor General on the first applicant’s behalf and asked him to ensure that a proper investigation was conducted into the disappearance of the three minors.

On 29 August 2000 an investigator from the Grozny Town Prosecutor’s Office requested the military prosecutor of military unit no. 20102, based in Khankala, to comply with the request of 9 August 2000 and to ensure that Glushchenko, the commander of Obron-8, and the other servicemen who had detained three minors in Sadovaya Street on 28 June 2000 were questioned.

On 28 September 2000 the Military Prosecutor’s Office for the Northern Caucasus instructed the military prosecutor of military unit no. 20102 to “carefully verify the allegations of involvement by servicemen of Obron-8 in the boys’ disappearance”.

On 14 November 2000 the military prosecutor of military unit no. 20102 replied to the first applicant that there were no reasons to conclude that servicemen stationed in the Leninskiy district of Grozny had been involved in the detention of her son and two other men. The lists of detainees maintained by the military prosecutors, the Federal Security Service, the Ministry of the Interior and the Ministry of Justice contained no reference to the three missing persons. The contingent of Obron-8 (military unit no. 3723) had returned to their home station on expiry of their period of service in Chechnya, and measures were being taken to establish their whereabouts and to question them about the circumstances of the alleged detention.

On 9 December 2000 a lawyer from the NGO Memorial wrote to the Chief Military Prosecutor on the first applicant’s behalf. She referred to the latest letter from the military prosecutor and asked why the requests to question the servicemen of Obron-8 had not been acted upon while they were still in Chechnya. The letter asked the Chief Military Prosecutor to intervene and to ensure that a proper investigation was carried out.

On 9 January 2001 the office of the Chief Military Prosecutor replied to Memorial, stating that the investigation was being carried out by the local prosecutor in Chechnya, to whom all requests should be forwarded. The involvement of military servicemen in the disappearance had not been established, and the military prosecutors therefore had no responsibility for the case.

On 12 February 2001 the military prosecutor of military unit no. 20102 informed the second applicant that his office was in charge of investigating the criminal case concerning the abduction of her son and two others. He stated that she would be informed of any progress in the investigation.

On 19 March 2001 the military prosecutor of military unit no. 20102 forwarded the first applicant’s complaint to the Grozny Town Prosecutor’s Office and asked that it be included in case file no. 14/33/0065-01, which had been forwarded to that office on 7 March 2001. The letter further stated that the investigation had established no connection between military servicemen and the abduction of the three men, and had been closed under Article 5 § 2 of the Code of Criminal Procedure [absence of corpus delicti].

At the end of 2001 and beginning of 2002 the second applicant wrote to the Russian President, the Prosecutor General, members of the State Duma, other public figures and the media. She stated the facts of her son’s detention and disappearance and observed the lack of progress in the investigation despite the fact that the names and positions of the persons who had detained the three minors were known. She listed the authorities she had previously applied to with her requests. She referred to her family’s ties with the Ministry of Defence and explained that her son could have had no links with the “Wahhabists”, or illegal armed groups. She asked them to help her establish her son’s whereabouts.

On 1 June 2002 the Prosecutor’s Office of the Chechen Republic replied to the second applicant. The letter stated that following her request, which had been forwarded by the Security Council, criminal case no. 12113 had been re-examined. The investigation in that case had been twice suspended under Article 195 § 3 of the Code of Criminal Procedure for failure to identify the culprits. Each time these decisions had been quashed by a supervising prosecutor. In November 2000 the investigation had concluded that the kidnapping of the three persons had been committed by the servicemen of Obron-8, and the case had been transferred to the military prosecutors. On 6 March 2001 a military investigator had closed the proceedings on the ground that no servicemen had been involved in the kidnapping, and on 7 March 2001 the file had been transferred back to the Grozny Town Prosecutor’s Office. The letter further stated that the submissions of Major Gusev and Glushchenko, commanders of the OMON unit and of Obron-8 respectively, had contained substantial discrepancies which the investigation had failed to explain “for a number of objective reasons”. On 29 May 2002 the decision of the investigator from the Grozny Town Prosecutor’s Office of 28 April 2001 to suspend the investigation had been quashed and the case file had been forwarded to that office for further investigation.

On 7 June 2002 the second applicant received a similar answer signed by the acting Prosecutor of the Chechen Republic, who added that he would personally supervise progress in the investigation.

3. Official investigation

On 8 August 2000 a criminal investigation (no. 12113) was instituted into the disappearance of the applicants’ sons on the night of 28-29 June 2000.

The Government submitted that on 22 August 2000 the second applicant had been granted the status of victim in the criminal proceedings; on
28 March 2001 the first applicant had been granted the same status. The second applicant had been questioned by an investigator from the prosecutor’s office on 22 August 2000 and 25 March 2005. She stated that on the night of 28 June 2000 her son, together with the first applicant’s son, had gone to the house of their friend T., who lived at 53 Pervaya Sadovaya Street in Grozny, where they had intended to spend the night. They had not returned home the next day. The first applicant and T.’s mother made similar statements.

On 30 June 2000 an inspection carried out at 53 Pervaya Sadovaya Street showed no evidence that a crime had been committed.

On 1 July 2000 the serviceman who had the second applicant’s son’s guitar submitted that he had found it in Pervaya Sadovaya Street on the night of 29 June 2000.

According to the Government, T.’s neighbours E. and A. and more than twenty officials of the Ministry of the Interior and the Ministry of Defence who had been serving in Grozny during the relevant period were questioned in the course of the investigation. They had no information concerning the whereabouts of the applicants’ sons. Although investigative steps had been taken, no other witnesses had been found. The records of the units of the Ministry of Defence deployed in Grozny during the relevant period had been examined but no information had been found concerning the apprehension of the applicants’ sons and T. The investigative authorities had also obtained information from other State bodies concerning special operations conducted in Chechnya and had taken other measures in order to establish the applicants’ sons’ whereabouts. Relevant inquiries had been made on 9, 12 and 29 August 2000, 8 and 25 October 2000, 21 June 2002,
1 and 31 July 2002 and 28 March 2005. However, it had not been established that representatives of the State authorities had been involved in the abduction of the applicants’ sons and T. They had not been held in detention facilities either.

On 6 March 2001 the military prosecutor’s office of the United Group Alignment (UGA) terminated the criminal proceedings against the officials of the Ministry of Defence on account of the lack of corpus delicti.

The Government submitted that the preliminary investigation in criminal case no. 12113 had been suspended a number of times, since the persons to be charged with the offence had not been identified. It had been resumed a number of times in order to verify the information obtained as a result of the investigative measures. The applicants had been informed of all the decisions taken.

On 19 June 2003 the second applicant filed a complaint with the Leninskiy District Court of Grozny concerning the inactivity of the Grozny Prosecutor’s Office and the prosecutor’s office of military unit no. 20102.

On 22 July 2003 the Leninskiy District Court of Grozny dismissed the complaint. No appeal was lodged against this decision and on 4 August 2003 it entered into force. According to the second applicant, she was not provided with a copy of the decision and had therefore been unable to lodge an appeal.

The Government first submitted that, after a number of suspensions and re-openings, the criminal investigation had been resumed on 14 February 2005 by the Prosecutor’s Office of the Leninskiy District of Grozny. They later submitted that the investigation had been resumed on 25 March 2005.

Despite specific requests made by the Court on two occasions, the Government did not submit a copy of the file in criminal case no. 12113. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”.

COMPLAINTS

1. The applicants submitted that the known circumstances of their sons’ detention and the absence of any news from them since 29 June 2000 gave rise to a strong presumption that they had been extrajudicially executed by Russian servicemen, in violation of Article 2 of the Convention. They also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Murad Lyanov and Islam Dombayev, in violation of their procedural obligations under Article 2 of the Convention.

2. The applicants submitted that there were compelling reasons to believe that Murad Lyanov and Islam Dombayev had been subjected to treatment contrary to Article 3 during their apprehension and during overnight questioning at the special unit of Obron-8. They also submitted that their well-founded claims concerning such treatment had not been investigated by the authorities. The applicants further submitted that the anguish and distress suffered by them as a result of the disappearance of their minor sons and the lack of an adequate response on the part of the authorities amounted to treatment in violation of Article 3 of the Convention.

3. The applicants complained that the provisions of Article 5 as a whole, related to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of their sons.

4. The applicants submitted that they had been deprived of access to a court, contrary to the provisions of Article 6, because their civil claim for damages would depend entirely on the outcome of the criminal investigation into the disappearances. In the absence of any findings, they could not effectively apply to a court.

5. The applicants submitted that the “disappearance” of their sons constituted an unjustified interference with their family life, protected under Article 8 of the Convention.

6. The applicants complained that they had no effective remedies in respect of the above violations, in breach of Article 13 of the Convention.

THE LAW

A. The Government’s objections

1. Validity of the applicants’ observations

The Government pointed out that the first applicant’s observations dated 10 June 2003 had not been signed and therefore could not be considered as valid. The second applicant’s observations dated 10 June 2005 bore the stamps of her representatives and had not been signed by hand.

The Court observes that, although unsigned, the first applicant’s observations were submitted with a covering letter signed by her representative. The second applicant’s observations bore one stamp and three handwritten signatures of her representatives. In such circumstances the Court finds no grounds to doubt the validity of the applicants’ observations. Accordingly, the Government’s objection must be dismissed.

2. Exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the abduction of the applicants’ sons had not yet been completed. They also noted that the complaint under Article 2 was premature because the applicants had not applied to the courts to have their sons declared dead.

The applicants disputed the Government’s objection. The first applicant submitted that they had failed to indicate what remedy she had to exhaust. The second applicant stated that in 2000 there had been no effective domestic remedies in the Chechen Republic since the law-enforcement agencies had been completely inoperative. Furthermore, there had existed an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya or Ingushetia, which had rendered any potentially effective remedies inadequate and illusory. In this connection the second applicant relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, documents from human-rights NGOs and media reports. Notwithstanding this, the second applicant had repeatedly applied to the law-enforcement bodies urging them to investigate the abduction of her son. However, the authorities had failed to conduct an effective investigation. Hence, she had had recourse to the remedies usually available in domestic law, but which had proved futile in this case. The second applicant also submitted that an application to have her son declared dead would be irrelevant for her complaints raised in the present application.

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. Merits of the application

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of Murad Lyanov and Islam Dombayev and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads 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.”

The Government submitted that the circumstances of the applicants’ sons’ disappearance were under investigation. It had not been established that they were dead or that any State agents had been involved in their abduction. The investigation was in compliance with Article 2 of the Convention.

The applicants submitted that since their sons had been missing for over five years it could be presumed that they were dead. The presumption was further supported by the prevalence of forced disappearances in Chechnya during the relevant period and the discoveries of dead bodies of civilians previously apprehended by the State forces, which were the subject of numerous reports by human-rights NGOs and the media. Furthermore, the replies from the State authorities provided conclusive evidence that their sons had been apprehended by armed servicemen. In the applicants’ view, the investigation in the present case had been neither prompt nor effective. The investigative authorities had not questioned servicemen from the units deployed in the area, nor had they inspected their records. The investigation had been discontinued and resumed a number of times and had produced no tangible results. Furthermore, the investigative authorities had systematically failed to inform the applicants of the progress of the investigation and had failed to submit the criminal file even at the Court’s explicit request.

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

2. The applicants complained under Article 3 of the Convention that there were compelling reasons to believe that Murad Lyanov and Islam Dombayev had been subjected to ill-treatment during their arrest and questioning and that the authorities had failed to conduct an effective investigation into these allegations. They also complained that the anguish and distress suffered by them as a result of the disappearance of their minor sons and the authorities’ reaction amounted to treatment in violation of Article 3 of the Convention, which reads as follows:

Article 3

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

The Government submitted that the investigation had been conducted in compliance with Article 3 of the Convention and had produced no evidence that either the applicants or their sons had been subjected to treatment prohibited by the above Convention provision.

The applicants contested the Government’s submissions. They contended that their sons had been tortured during their detention by State agents. They referred to NGO reports concerning mass torture in Chechnya during that period to support this assertion. They also averred that the investigation had not been adequate for the reasons stated above in relation to their complaints under Article 2 of the Convention. The applicants further submitted that they themselves had been subjected to treatment in violation of Article 3 of the Convention. They had been suffering from fear, anguish and emotional distress caused by the arrest and disappearance of their minor sons and the authorities’ indifference, inefficiency and reluctance to assist in establishing their whereabouts.

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

3. The applicants complained that their sons had been deprived of their liberty in violation of Article 5 of the Convention. Article 5, in so far as relevant, provides:

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.”

The Government submitted that there was no evidence that the applicants’ sons had been deprived of their liberty in violation of Article 5 of the Convention. In particular, their names had not been found in the records of any detention facilities. Furthermore, it had not been established that the three persons apprehended by Obron-8 were the applicants’ sons.

The applicants submitted that their sons’ detention had not satisfied any of the conditions set out in Article 5 of the Convention. It had had no basis in national law, had not been in accordance with a procedure prescribed by law and had not been formally recorded.

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

4. The applicants complained under Article 6 § 1 of the Convention that they were unable to bring civil proceedings for compensation for their sons’ unlawful detention or death until the investigation had been completed. The second applicant also complained that neither she nor her representatives had been notified of the hearing concerning her complaint about the inactivity of the prosecutor’s office, and that they had therefore been unable to attend. Furthermore, she had not been informed of the decision taken and had learnt about it only from the Government’s observations; she had thus been deprived of the possibility of lodging an appeal.

Article 6 § 1 of the Convention, 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 [a] ... tribunal ...”

The Government argued that the applicants’ complaint concerning the alleged lack of access to a court to obtain compensation was unfounded as, in practice, they had never attempted to file such a claim in a domestic court. The applicants maintained their complaint.

The Court observes that the applicants submitted no information which would prove their alleged intention to apply to a domestic court with a claim for compensation.

As regards the second applicant’s complaint, the Court notes that the complaint concerning the inactivity of the prosecutor’s office did not relate to “the determination of [her] civil rights and obligations or of any criminal charge against [her]”. Accordingly, Article 6 of the Convention does not apply.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

5. The applicants complained under Article 8 of the Convention that the disappearance of their sons had violated their right to respect for their family life. Article 8 of the Convention reads as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that there had been no interference with the applicants’ family life since it had not been established that State agents had been involved in the abduction of their sons.

The applicants maintained their complaints.

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

6. The applicants complained under Article 13 of the Convention that they had no effective remedies in respect of the alleged violations of the Convention. Article 13 of the Convention reads as follows:

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.”

The Government contended that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. The investigation into their sons’ disappearance was still pending, and the State authorities were taking the proper investigative measures.

The applicants contended that in their case the domestic remedies usually available had proved to be ineffective. In particular, the investigation had been pending for several years without any progress. They had never been granted access to the case file of the investigation and all their applications to public bodies had remained unanswered or had produced only standard replies.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 3, 5, 8 and 13 of the Convention;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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