MALSAGOVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27244/03
by Tabarik MALSAGOVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 6 March 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 9 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

1. Mrs Tabarik Malsagova, born in 1952;

2. Mrs Zulikhan Mayrsoltovna Malsagova, born in 1978;

3. Mrs Shovda Mayrsoltovna Malsagova, born in 1987;

4. Mrs Tamila Mayrsoltovna Malsagova, born in 1983;

5. Mrs Yakha Mayrsoltovna Malsagova, born in 1974;

6. Mrs Kometa Mayrsoltovna Malsagova, born in 1973; and

7. Mr Tamerlan Mayrsoltovich Malsagov, born in 1983.

The applicants are Russian nationals and live in the town of Urus-Martan, in the Chechen Republic. They are 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 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.

The first applicant is the mother of Mr Saydi Mayrsoltovich Malsagov, born in 1980. The other applicants are the first applicant’s children and siblings of Saydi Malsagov. The applicants live in their own house at 22 Shvernika Street, Urus-Martan.

1. Abduction of Saydi Malsagov

(a) The applicants’ account

At about 2 a.m. on 7 November 2002 a group of about twenty-five or thirty masked men in camouflage uniforms forcibly entered the Malsagovs’ house. They were armed with machine-guns and snipers rifles with optical sights; they spoke Russian without accent. The armed men did not identify themselves but the applicants inferred that they belonged to the Russian military. The servicemen did not produce any documents to justify their actions and gave no explanations.

The first applicant was sleeping in one room with her two granddaughters aged seven and nine and the fourth applicant. In another room Saydi Malsagov was sleeping with his wife, Ms S. The seventh applicant and his father Mayrsolt Malsagov (who died in October 2003) were sleeping in a separate place.

The first and the fourth applicants were woken by a group of servicemen who walked into their room, turned on the lights and ordered them to remain in bed and not to move. Two men searched the wardrobes in the room while the third stood at the doors on guard. The servicemen did not talk to the women. Once they had finished searching, two servicemen left and went to the adjacent room where Saydi Malsagov and Ms S. were. In about ten minutes five or six servicemen again entered the room and walked up to the first applicant’s bed. The two granddaughters of the first applicant were frightened and started to cry, and the first applicant asked the soldiers not to hurt the children. The soldiers told her that they were there just to check. Then they left the room and closed the door from the outside.

Five minutes later the seventh applicant and his father entered the women’s room. Together they went into Saydi Malsagov’s room. There they saw his wife who was sitting on the floor by her bed and crying. Belongings and beds had been thrown around. Ms S. said that the military had taken her husband away. They also took audio and videotapes, some papers and Saydi Malsagov’s medical record.

The seventh applicant stated that on 7 November 2002 at about 2.30 a.m. five men in camouflage or black uniforms armed with machine guns had entered the room where he and his father were sleeping and asked for his passport. The seventh applicant was ordered to lie on the floor. One of the servicemen read out his full name and the seventh applicant confirmed that it was him. Then the servicemen searched the rooms without saying what they were looking for and left in about 10 minutes. They told the seventh applicant to remain on the floor and not to move. The seventh applicant heard the noise when they broke down the door into the nearby room. About five minutes later three men entered the room and again asked the applicant for an identity document. The seventh applicant replied that his passport had already been checked and the men left without saying anything. After about 15 minutes he heard the servicemen leaving. Once it was quiet, he went into the main house and saw his mother and sister. Together they went into his brother’s room and his wife told them that Saydi Malsagov had been taken away. The seventh applicant went into the courtyard and then into the street, but did not see anyone, there was not even any noise of vehicles.

Ms S. testified that the servicemen had entered their room and ordered them to lie still. Then they told Saydi Malsagov to stand up and get dressed. He was permitted to put on his shoes and a jacket, and then the servicemen escorted him out of the room, taking along his documents and some items from the room. They did not explain anything and did not answer any questions.

The applicants submitted a statement by their neighbour Sh. who lives in the same street. On 7 November 2002 at about 3 a.m. she heard the dogs barking and looked out of the window at the street. She saw a line of armed people walking in the street from the Malsagovs’ house towards Magomed-Merzoyeva Street. There were about ten of them, wearing camouflage uniforms and masks. Then everything went quiet. In the morning the witness learnt that the military had taken away Saydi Malsagov.

The applicants have had no news of their son and brother Saydi Malsagov since that day.

(b) The Government’s account

The Government submitted that the Prosecutor General’s Office had established that on the night of 6 to 7 November 2002 unidentified persons armed with machine guns had entered the applicants’ house at 22 Shvernika Street, Urus-Martan, and kidnapped Saydi Malsagov.

2. Search for Saydi Malsagov and investigation

(a) Applications to State authorities

Following Saydi Malsagov’s disappearance the applicants repeatedly applied, both in person and in writing, to various official bodies, trying to find out the whereabouts and fate of their relative. They also personally visited places of detention in Chechnya and elsewhere in the Northern Caucasus. The applications were primarily lodged by the first applicant.

On the morning of 7 November 2002 the first applicant visited the local military commander’s office, the department of the interior of the Urus-Martan District (“the ROVD”), the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) and the district administration. Everywhere she was told that they did not know who had detained her son or where he was.

On 7 November 2002 the first applicant submitted a written application to the district prosecutor’s office, to the prosecutor’s office of the Chechen Republic (“the Chechnya prosecutor’s office”), to the military prosecutors, to the local military commander and to the Office of the Special Envoy of the Russian President for Rights and Freedoms in Chechnya. She also wrote to the NGO Memorial Human Rights Centre. In the letters she stated the details of Saydi Malsagov’s detention and asked for his whereabouts to be established and his release ensured, as well as for a criminal investigation to be opened into his abduction.

On 7 November 2002 the director of the municipal enterprise APP Energetic where Saydi Malsagov had worked wrote to the head of the district administration and to the military commander asking for assistance in finding and releasing their employee. On 15 November 2002 the district administration forwarded this letter to the ROVD.

On 9 December 2002 the Chechnya prosecutor’s office forwarded the first applicant’s letter addressed initially to the Special Envoy to the district prosecutor’s office with a request to verify the complaint and to inform the applicant accordingly.

On 28 December 2002 the ROVD and APP Energetic issued positive attestations to Saydi Malsagov’s character.

On 17 January 2003 the first applicant wrote to the military commander of Urus-Martan District and asked him to help her find her son.

On 5 April 2003 the military prosecutor’s office of the United Group Alignment (“the UGA prosecutor’s office”) forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 (“the unit prosecutor’s office”).

On 7 April 2003 the first applicant requested the district prosecutor’s office to provide her with an update of investigation no. 61147.

On 9 April 2003 the Chechnya Ministry of the Interior forwarded the first applicant’s complaint to the ROVD.

On 17 April 2003 the district prosecutor’s office informed the first applicant that on 13 November 2002 they had opened a criminal investigation into the abduction of her son by unidentified armed men under Article 126 § 2 of the Russian Criminal Code (“aggravated kidnapping”). On 13 January 2003 the investigation was suspended due to failure to identify those responsible. The letter further informed the applicant that the ROVD had been instructed to search for Saydi Malsagov more actively.

On 25 April 2003 the district prosecutor’s office again informed the first applicant that the investigation had been suspended on 13 January 2003.

On 23 May 2003 the unit prosecutor’s office forwarded the first applicant’s complaint to the district prosecutor’s office and stated that there were no reasons to suspect the involvement of servicemen in the crime.

On 9 June 2003 the UGA prosecutor’s office again forwarded the first applicant’s complaint to the unit prosecutor’s office.

On 18 June 2003 the first applicant requested the district prosecutor’s office to allow her access to investigation file no. 61147. On 20 June 2003 this permission was granted and the applicant was invited to assess the file at the prosecutor’s office during working hours. According to the first applicant, when she inspected the investigation file, she found in it only requests for information sent to different district departments of the interior and replies to these requests which denied that they had ever detained Saydi Malsagov. The first applicant was not permitted to take copies of these documents.

On 3 July 2003 the unit prosecutor’s office informed the applicants that they had no competence to deal with the matter.

On 23 July 2003 the Chechnya prosecutor’s office forwarded the first applicant’s complaint to the district prosecutor’s office and instructed him to conduct a careful examination of the first applicant’s complaints.

On 1 August 2003 the district prosecutor’s office informed the first applicant that investigation no. 61147 concerning the kidnapping of her son had been resumed on that date.

On 6 August 2003 the first applicant complained to the Chechnya prosecutor’s office about the decision to suspend the investigation. She referred to the circumstances of her son’s abduction and argued that he must have been detained by some representatives of official bodies, because they had arrived in a large group during curfew hours and wore uniforms similar to those used by Russian servicemen. She requested the prosecutor to oblige the district prosecutor’s office to carry out a number of investigative actions, namely to question servicemen of law enforcement agencies. She also requested that other witnesses to the night raid who could have seen the vehicles in which the abductors had arrived be identified and questioned.

On 6 August 2003 the district prosecutor’s office again informed the first applicant that the investigation had taken all possible steps to establish the whereabouts of her son, but that it had now been suspended for failure to identify those responsible.

On 20 August 2003 the Chechnya prosecutor’s office informed the first applicant that, in response to her complaints, the decision to suspend the investigation into her son’s abduction had been quashed on 1 August 2003 and the district prosecutor had been instructed to take a number of necessary investigative steps.

On 1 September 2003 the district prosecutor’s office informed the first applicant that the investigation had been again suspended on 1 September 2003. The applicant was informed of the possibility of appeal against the said decision.

On 5 September 2003 the district prosecutor’s office informed the applicant of the latest suspension of the investigation.

On 29 September 2003 the first applicant’s complaint was sent from the Chechnya prosecutor’s office to the district prosecutor’s office with an instruction to verify the complaints.

On 13 November 2003 the SRJI, acting on the applicants’ behalf, requested the district prosecutor’s office to inform them of the current status of the criminal investigation into Saydi Malsagov’s abduction and to inform the applicants of the results of the investigative steps taken.

On 23 June 2005 the SRJI requested the district prosecutor’s office to inform them of the progress in the investigation into Saydi Malsagov’s kidnapping and to inform the applicants of the results of the investigative steps taken.

On 12 July 2005 the district prosecutor’s office informed the SRJI that the investigative measures were being taken to solve the crime and that the first applicant could study the case file at their premises.

(b) Information submitted by the Government

The Government submitted the following information on the progress of the investigation.

On 13 November 2002 the district prosecutor’s office opened criminal investigation file no. 61147 into the kidnapping of Saydi Malsagov under Article 126 § 2 of the Russian Criminal Code.

On 19 November 2002 the district prosecutor’s office asked the Department of the Federal Security Service of the Chechen Republic (“the Chechnya FSB”) and all district and town departments of the interior in the Chechen Republic whether they had any information concerning Saydi Malsagov’s kidnappers. They received negative replies.

On 19 November 2002 the district prosecutor’s office questioned the first applicant as a witness. She submitted that at 3 a.m. on 7 November 2002 ten or twelve men had entered her house and had locked her in a room with her daughter. When she had got out of the room, she had discovered that the armed men had taken her son away. She had not heard any armoured vehicles. Nothing had been stolen from her house. None of her family members had been assaulted.

On 13 January 2003 the district prosecutor’s office granted the first applicant victim status in the criminal investigation.

On 13 January 2003 the district prosecutor’s office suspended the investigation in case no. 61147 for failure to identify those responsible and ordered the ROVD to take investigative measures more actively in order to solve the crime.

On 12 February 2003 the first applicant was informed of the decision to suspend the investigation and was advised of her right to appeal against it.

On 16 April 2003 the district prosecutor’s office received the first applicant’s request to take measures to establish her son’s whereabouts and to inform her of the progress in the investigation.

On 25 April 2003 the first applicant was notified of the suspension of the investigation.

On 19 June 2003 the district prosecutor’s office received the first applicant’s request for access to the case file. On 20 June 2003 they replied that she could study the documents at any time.

On 1 August 2003 the district prosecutor’s office quashed the decision of 13 January 2003, resumed the investigation and informed the first applicant of it.

On 1 August 2003 the district prosecutor’s office interrogated Ms S. as a witness. She submitted that on the night of 6 to 7 November 2002 unidentified masked men with machine guns had entered their home, ordered her to lie on the floor, searched the house and taken her husband away. On the same date the district prosecutor’s office interrogated the seventh applicant as a witness. He submitted that at about 2 a.m. on the night of 6 to 7 November 2002 around twenty five or thirty armed men had burst into their house and ordered him to produce his identity papers. He had replied that the papers were on a table. The men had forced him to the floor and searched the room. When they had left, the seventh applicant had learned that they had taken his brother away.

On 8 August 2003 the district prosecutor’s office sent requests concerning Saydi Malsagov’s kidnapping to all law enforcement agencies of the Chechen Republic. The military commander’s office of Urus-Martan District, the head of remand prison IZ-20/1, the ROVD and other agencies replied that they had no information on Saydi Malsagov’s whereabouts.

On 1 September 2003 the district prosecutor’s office suspended the investigation in case no. 61147 for failure to identify those responsible and ordered the ROVD to take investigative measures more actively in order to solve the crime.

On 5 September 2003 the district prosecutor’s office informed the first applicant of the decision of 1 September 2003.

On 1 October 2004 the Chechnya prosecutor’s office quashed the decision of 1 September 2003 and resumed the investigation.

On 15 October 2004 the district prosecutor’s office informed the first applicant that the investigation had been resumed.

On 15 November 2004 the district prosecutor’s office suspended the investigation for failure to identify those responsible and informed the first applicant of the decision.

On 6 December 2004 the district prosecutor’s office quashed the decision of 15 November 2004 and resumed the investigation. On 7 December 2004 the first applicant was notified of it.

On 13 December 2004 the district prosecutor’s office again interrogated the first applicant. She submitted that all perpetrators had been dressed in camouflage uniforms with no insignia. They had walked to their house from the neighbours’ garden. No one had seen their vehicles. The men had entered the room in which the first applicant had been together with her daughter and granddaughters and ordered them not to move. The women had been frightened and had not known whether the door had been locked or not. A few minutes later the first applicant had left the room and found out that the men had taken her son away.

On 25 December 2004 the district prosecutor’s office requested information on the case from the Chechnya FSB.

On 26 December 2004 the district prosecutor’s office sent requests for information concerning Saydi Malsagov to a number of remand prisons in different regions of Russia, including remand prison IZ-20/2 in Chernokozovo. On the same date they requested information about Saydi Malsagov from hospitals in different districts of Chechnya.

On 27 December 2004 an investigator of the district prosecutor’s office studied a detainees’ register of the temporary detention facility of the ROVD. The register contained no record of Saydi Malsagov.

On 28 December 2004 the district prosecutor’s office questioned Mr A., the applicants’ neighbour, as a witness. Mr A. submitted that he had learned of Saydi Malsagov’s kidnapping on the morning of 7 January 2002. On that day he had seen prints of boots on a fresh layer of snow in his back yard. The metal net separating his back yard from that of the Malsagovs had been cut. He had not heard any noise on the night of 6 to 7 January 2002. Three other neighbours made similar statements.

On 29 December 2002 the district prosecutor’s office questioned the fourth and seventh applicants as witnesses. They made statements similar to that of Mr A. On the same date the district prosecutor’s office granted the fourth applicant victim status.

On 7 January 2005 the district prosecutor’s office suspended the investigation in case no. 61147 for failure to identify those responsible and informed the first and fourth applicants of the decision.

On 18 January 2005 the district prosecutor’s office were informed that Saydi Malsagov had not been kept in IZ-20/2. At some point they became aware that other remand prisons to which they had sent requests had no information on Saydi Malsagov’s whereabouts.

On 27 January 2005 the Chechnya FSB informed the district prosecutor’s office that in 2002 Saydi Malsagov had been an active member of an illegal armed group.

On 15 December 2005 the district prosecutor’s office quashed the decision of 7 January 2005 and resumed the investigation.

Despite a specific request by the Court the Government did not submit a copy of the file in criminal case no. 61147, providing only copies of decisions to suspend and resume the investigation and to grant victim status. 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.

3. Proceedings before the Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights

On 28 July 2004 Human Rights Watch, an international NGO, filed a report with the Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights (“the Working Group”) concerning Saydi Malsagov’s disappearance. It is unclear whether the applicants had issued Human Rights Watch with powers of attorney authorising the NGO to apply to the Working Group on their behalf.

Between 16 and 20 August 2004 the Working Group held its seventy-third session in Geneva, Switzerland, and reviewed information which it had received concerning enforced or involuntary disappearances, including that of Saydi Malsagov.

On 27 August 2004 the Chairman of the Working Group informed the Permanent Representative of the Russian Federation to the United Nations Office in Geneva that Saydi Malsagov’s disappearance had been reported to the Working Group and invited the Russian Government to submit, if they wished to do so, any written information for the Working Group’s consideration by 15 October 2004.

On 25 October 2004 the Russian Ministry of Foreign Affairs sent information on the investigation into Saydi Malsagov’s kidnapping to the Permanent Representative of the Russian Federation to the United Nations Office in Geneva.

It is unclear whether Saydi Malsagov’s disappearance is still under consideration by the Working Group.

B. Relevant international legal instruments

By resolution 20 (XXXVI) of 29 February 1980, the United Nations Commission on Human Rights (“the UN Commission”) decided to “establish for a period of one year a working group consisting of five of its members, to serve as experts in their individual capacities, to examine questions relevant to enforced or involuntary disappearances of persons”. It further decided that “the [W]orking [G]roup, in carrying out its mandate, shall seek and receive information from Governments, intergovernmental organisations, humanitarian organisations and other reliable sources”. The resolution provided that the Working Group would submit reports on its activities, together with its conclusions and recommendations, at the Commission’s session.

Between 1980 and 2004 the mandate and terms of reference of the Working Group was regularly renewed by the UN Commission.

By resolution 2004/40 of 19 April 2004 the UN Commission decided to extend the Working Group’s mandate for three years and encouraged it in the execution of its mandate “to promote communication between families of disappeared persons and the Governments concerned, particularly when ordinary channels have failed, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and to ascertain whether such information falls under its mandate and contains the required elements”.             

According to Fact Sheet No. 6 (Rev. 2) “Enforced or Involuntary Disappearances” issued by the Office of the United Nations High Commissioner for Human Rights, the Working Group’s basic mandate is to assist the relatives of disappeared persons to ascertain the fate and whereabouts of their missing family members. For this purpose the Working Group receives and examines reports of disappearances submitted by relatives of missing persons or human rights organizations acting on their behalf. After determining whether those reports comply with a number of criteria, the Working Group transmits individual cases to the governments concerned, requesting them to carry out investigations and to inform the Working Group of the results. The Working Group deals with the numerous individual cases of human rights violations on a purely humanitarian basis, irrespective of whether the government concerned has ratified any of the existing legal instruments which provide for an individual complaints procedure. It acts essentially as a channel of communication between the families of missing persons and governments, and has successfully developed a dialogue with the majority of governments concerned with the aim of solving cases of disappearance.

COMPLAINTS

1. The applicants submitted that Russia had violated its positive obligation under Article 2 to protect the life of everyone within its jurisdiction. They argued that the known circumstances of Saydi Malsagov’s detention and the absence of any news of him since November 2002 gave rise to a strong presumption that he had been killed 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 Saydi Malsagov, in violation of their procedural obligation under Article 2 of the Convention.

2. The applicants complained under Article 3 of the Convention that the anguish and distress suffered by them as a result of the disappearance of their family member and the lack of an adequate response on behalf 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, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Saydi Malsagov.

4. The applicants complained that they had no effective remedies in respect of the above violations, as required by Article 13.

5. The applicants relied on Article 14 of the Convention stating that they had been discriminated against on the grounds of their Chechen ethnic origin and residence in Chechnya.

6. In their initial application the applicants also submitted complaints about Saydi Malsagov’s ill-treatment and lack of effective investigation into it under Article 3 of the Convention and about inability to access a court under Article 6 of the Convention. However, in their observations on the admissibility and merits of the application they specified that they did not wish to maintain these complaints. In such circumstances, the Court finds no reason to proceed with their examination.

7. Finally, in their observations of 7 April 2006 the applicants submitted that the Government’s failure to disclose the documents from the criminal investigation file at the Court’s request constituted a failure to comply with their obligations under Articles 34 and 38 § 1 (a) of the Convention.

THE LAW

I. The Government’s objection as to compliance with the conditions of Article 35 § 2 (b)

The Government submitted that, pursuant to Article 35 § 2 (b) of the Convention, the Court should not deal with the present application because Saydi Malsagov’s disappearance had already been reported to the Working Group.

Article 35 § 2 (b) of the Convention, in so far as relevant, reads as follows:

“2. The Court shall not deal with any application submitted under Article 34 that

(b) ... has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”

The applicants contested this argument. They insisted that they had not lodged any complaints with the Working Group. They argued further that the Working Group’s basic mandate was to assist the relatives of disappeared persons to ascertain the fate and whereabouts of their missing family members and that it acted essentially as a channel of communication between the families and Governments. Therefore, in the applicants’ view, the Working Group could not be regarded as a judicial or a quasi-judicial body within the meaning of Article 35 § 2 (b) of the Convention.

The Court notes at the outset that the procedures envisaged by Article 35 § 2 (b) of the Convention are procedures in which a matter is submitted by way of “a petition” lodged formally or substantively by the applicant (see Varnava and Others v. Turkey, no. 16064-66/90 and 16068-73/90, Commission decision of 14 April 1998, Decisions and Reports (DR) 93-A, p. 5). Given that the parties did not produce copies of documents by which the applicants had authorised Human Rights Watch to represent their case, the Court is not persuaded that the said NGO has been duly empowered to apply to the Working Group on the applicants’ behalf. Furthermore, the Court reiterates that in deciding whether the complaints raised before it have already been submitted for examination before another international body, it is necessary to verify whether the applications to the different institutions concern substantially the same persons, facts and complaints (see Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) 73, p. 214, and Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995, DR 80-A, p. 170). The Court notes in this respect that the report submitted by Human Rights Watch concerned only the fact of Saydi Malsagov’s disappearance, while the scope of the complaints that the applicants raised before the Court is significantly wider.

In any event, the Court should determine whether the proceedings before the Working Group qualify as judicial or quasi-judicial proceedings similar to those set up by the Convention (see Lukanov v. Bulgaria, no. 21915/93, Commission decision of 12 January 1995, DR 80-A, p. 180).

The Court observes in this respect that the Working Group does not investigate disappearances. Nor does it provide the relatives of those missing with legal means of redress. It is not capable of attributing responsibility for the deaths of any missing persons or making findings as to their cause. Therefore, the Court considers that the Working Group is not “a procedure of international investigation or settlement” of the “matter” which is pending before the Court in the present application (see, mutatis mutandis, Varnava and Others v. Turkey, cited above).

Consequently, the Court is not prevented from examining the present application pursuant to Article 35 § 2 (b) of the Convention.

II. The Government’s objection as to the 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 kidnapping of Saydi Malsagov had not yet been completed. They also argued that it had been open to the applicants to challenge in court the lawfulness of the arrest and detention of Saydi Malsagov, as well as any actions or omissions by the investigating or other law enforcement authorities during the investigation; however, they had not availed themselves of any such remedy.

The applicants disputed that objection. In their view, the fact that the investigation, which had been pending for a long time, had produced no tangible results proved that it was an ineffective remedy in this case. They further argued that in the Chechen Republic a court appeal against a decision of an investigator would be futile and the remedy referred to was illusory and ineffective.

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.

III. 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 Saydi Malsagov and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows:

“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 information about Saydi Malsagov’s death had not been confirmed. Nor had it been established that any State agents had been involved in his abduction. The investigation had been in compliance with Article 2 of the Convention.

The applicants argued that it was beyond reasonable doubt that Saydi Malsagov had been killed by representatives of federal forces after his abduction. The armed men who had apprehended him moved freely in Urus-Martan after curfew, which proved that they were State agents. The applicants stressed that their relative 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 7 November 2002 proved that he had been killed. The applicants also claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of Saydi Malsagov’s disappearance. They argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, it had been pending for over three years without any tangible results so far, having been repeatedly suspended and resumed. The main investigative steps had been taken after the communication of the present application to the Government, which, according to the applicants, once again proved the overall ineffectiveness of the investigation. The first applicant had not been granted victim status until two months after the opening of the investigation; she had not been promptly informed of all developments in the case.

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 that the anguish and distress suffered by them as a result of their relative’s disappearance and the authorities’ reaction amounted to treatment in violation of Article 3 of the Convention.

Article 3 of the Convention reads as follows:

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

The Government submitted that the perception of the events was a subjective factor dependent upon the individual emotional characteristics of each person. Therefore, the investigating authorities were not in a position to assess the alleged suffering of the applicants. In sum, they submitted that the applicants’ allegations of profound mental suffering had been unsubstantiated.

The applicants maintained their complaint.

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 Saydi Malsagov had been deprived of his liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“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 Saydi Malsagov had never been arrested or kept in any detention facility and thus had not been deprived of his liberty in violation of Article 5 of the Convention.

The applicants insisted that there was an established practice of unlawful unregistered detentions in Chechnya and contended that Saydi Malsagov had been arbitrarily deprived of his liberty in violation of Article 5 of the Convention.

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

“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 applicants contested the Government’s submissions. They argued that the administrative practice of non-compliance with the obligation to investigate crimes that had existed at the relevant time in the Chechen Republic rendered all potential remedies ineffective.

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.

5. The applicants relied on Article 14 in conjunction with Articles 2, 3, 5 and 13 of the Convention, stating that they had been discriminated against in the enjoyment of their Convention rights on account of their Chechen ethnic origin and residence in Chechnya.

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submitted that the ongoing investigation provided no evidence to support the applicants’ allegations in that regard. The applicants reiterated their complaint.

The Court observes that no evidence has been submitted in its possession that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated. Accordingly, this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

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

Declares admissible, without prejudging the merits, the complaints under Articles 2, 5 and 13 of the Convention and the complaint regarding the applicants’ mental sufferings under Article 3 of the Convention;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy