FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25385/04
by Zalina Akhmetovna MEDOVA
against Russia
The European Court of Human Rights (First Section), sitting on
4 October 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 16 July 2004,
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, Mrs Zalina Akhmetovna Medova, is a Russian national who was born in 1980 and lives in Karabulak, Ingushetia. She was represented before the Court by lawyers of EHRAC/Memorial, a
non-governmental organisation with offices in Moscow and London. 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. Capture and detention of Mr Adam Medov
The applicant lived with her husband, Mr Adam Medov (born in 1980), in Karabulak, Ingushetia. The applicant is a linguist by training, and currently looks after her two children, born in 2003 and 2004. In June 2004 her husband temporarily resided in Nazran in Ingushetia.
(i) The applicant’s account
The applicant submitted that on 15 June 2004 at about 8 p.m. her husband had left his temporary home in Nazran in his car (Zhiguli VAZ 21099). According to his brother Mr Magomed Medov, he should have had 3,800 United States dollars with him, which he had borrowed from his relatives. He did not come back home that night.
In the night of 16 to 17 June 2004 the applicant’s husband called his brother, Mr Magomed Medov, on his mobile phone and said that his car had broken down. He tried to say where he was, but the phone was cut off.
In the evening of 17 June 2004 the Medovs were informed that their son Mr Adam Medov was being detained at the Sunzhenskiy District Department of the Interior (the Sunzhenskiy ROVD). At about 8 p.m. several of Mr Adam Medov’s relatives, including his father and two brothers, arrived at the village of Ordzhonikidzevskaya (also called Sleptsovskaya) – the administrative centre of the Sunzhenskiy district – and went to the ROVD building.
There the policemen told them that on 17 June 2004 the traffic police stopped two vehicles, a green Volga 31-10 and a Zhiguli VAZ 21099, for an inspection near the Kavkaz-1 crossing between Ingushetia and Chechnya. The policemen heard noise coming from the boot of the Zhiguli car. They opened it and found a bound man (according to the policemen this was Mr Adam Medov) who cried “I am an Ingush! They are trying to take me out of here!”. The Volga car then started to move towards Chechnya, but was stopped by the policemen. In its boot they found another bound man.
The policemen arrested the persons who were in both cars and took them and the two detainees to the Sunzhenskiy ROVD at about 7 p.m.
According to the policemen, Mr Adam Medov was questioned and explained that on 15 June 2004 he had been apprehended near the Sunzha restaurant in Sleptsovskaya along with a man to whom he had been giving a lift in his car, and whose name he did not know. He said he had been apprehended by eight men, four of them of Russian origin and four of them of Chechen origin, and subsequently taken to the Federal Security Service (FSB) headquarters in Magas, the capital of Ingushetia. There he had been beaten and tortured. At some point on 16 June 2004 he had been forced to call his family to convince them not to start searching for him.
By the evening of 17 June 2004 numerous relatives of Mr Adam Medov had gathered in front of the Sunzhenskiy ROVD. The policemen asked his relatives to bring food and agreed to take it to him. Later they offered to allow two of Mr Adam Medov’s brothers, Magomed Medov and Usman Medov, to visit him inside the building. While the two men were standing on the ground floor of the police station, they heard someone shouting “No visits! They should leave!” Magomed Medov and Usman Medov were then guided to the exit of the ROVD building.
At about 11.30 p.m. on 17 June 2004 the policemen came outside to where the relatives of Mr Adam Medov were waiting and told them that he and another detainee had been driven to Chechnya. Mr K-v, an officer of the Sunzhenskiy ROVD, had accompanied the cars to the Kavkaz-1 roadblock. This was the last news the relatives had of Mr Adam Medov.
(ii) The Government’s account
On 22 July 2004, in reply to the Court’s request for factual information related to the detention and whereabouts of Mr Adam Medov of 16 July 2004, the Government first submitted that the Ministry of the Interior was not aware of his alleged abduction or his whereabouts. He had not been detained in the Sunzhenskiy ROVD between 15 and 21 June 2004. His relatives had not applied to the department of the interior with a complaint about Mr Adam Medov’s abduction. Furthermore, according to the information submitted by the Prosecutor General’s Office, on 22 July 2004 the Prosecutor’s Office of Ingushetia had opened a criminal case under Article 126 (2) of the Criminal Code – abduction committed by a group.
On 20 August 2004 the Government submitted the following information received from the Prosecutor General’s Office:
“In the evening of 17 June 2004 militia officers stopped two cars at the stationary road checkpoint “Volga-20”, located at the federal route “Kavkaz”, near the administrative border of the Chechen Republic. The six men sitting in those two cars refused to produce their documents. In this connection they were brought to the Sunzhenskiy [ROVD], where four of the above-mentioned six men introduced themselves as officers of the Department of the Russian Federation Federal Security Service [FSB] in the Chechen Republic and produced their documents. The highest ranking officer of that group, Mr Beletskiy V.V., gave the following explanation of what had happened. He said that on 15 June 2004 in Ingushetia they had apprehended two men, Medov A.A. and [K.], who were wanted on suspicion of having committed grave crimes, and that they were taking them to the Chechen Republic. Mr Beletskiy produced documents that showed the lawfulness and validity of Mr Medov’s and [K.’s] arrest and detention. After that the above-mentioned officers ... and the two detained persons left for the Chechen Republic.
According to information provided by the Prosecutor’s Office of the Chechen Republic, officers of the law-enforcement bodies of the Chechen Republic had not apprehended Mr Medov and there was no information that the latter had been brought to the territory of the Chechen Republic. According to the Department of the FSB in the Chechen Republic, Mr Beletskiy V.V. was not on the staff of that Department. Moreover, the Department did not have any information regarding Mr Medov’s apprehension and whereabouts.
On 22 July 2004 the Public Prosecutor’s Office of the Republic of Ingushetia initiated a criminal case in respect of an offence provided for by Article 126 § 2 (a) (abduction by a group of persons after preliminary collusion) in connection with Mr Medov’s and [K.’s] disappearance.
At present Mr Medov’s and [K.’s] location is not established. Mrs Medova’s allegations that her husband is being detained at the Khankala military base have not proved to be true”.
2. Investigation into the abduction
(i) Applications to State authorities
Immediately after 17 June 2004 the members of Mr Adam Medov’s family started to search for him. On numerous occasions, both in person and in writing, they applied to the prosecutors of various levels, the Ministry of the Interior, the FSB, administrative authorities and public figures. The applicant and other family members received some conflicting information about the circumstances of Mr Adam Medov’s apprehension and detention, and hardly any about his whereabouts after 17 June 2004.
On 18 June 2004, upon a request by Mr Adam Medov’s relatives, the chairman of the Ingush Bar Association “XXI Vek” asked the Ingush Department of the FSB and the Sunzhenskiy ROVD if Mr Adam Medov had been detained on 17 June 2004, and if so, where he was. On the same day the Sunzhenskiy ROVD replied that Mr Adam Medov had not been detained by them.
However, on 21 June 2004 the deputy prosecutor of the Sunzhenskiy District informed the Medovs that “on 15.05.2004 Medov A.K. was detained by officers of the FSB Department for Chechnya under the command of lieutenant-colonel Beletskiy V.V.”[1] On 22 June 2004 the same prosecutor informed the applicant’s family that on 16 June 2004 he had “requested the military prosecutor of the United Group Alignment (UGA) to submit relevant information”.
On 24 June 2004 the acting prosecutor of Ingushetia replied to a member of Ingushetia’s Popular Assembly, Mr Ozdoyev, that an investigation was ongoing into the Medovs’ complaint about the detention and ill-treatment of Mr Adam Medov by FSB officers on 15 June 2004.
On 26 June 2004 the deputy prosecutor of the Sunzhenskiy District again confirmed to the applicant’s family that “on 15.06.2004 Medov was detained by officers of the FSB Department for Chechnya under command of lieutenant-colonel Beletskiy V.V. On 18 June 2004 [M.], the military prosecutor of the UGA, was requested to submit information relating to the grounds of the arrest.”
On 1 July 2004 the acting prosecutor of Ingushetia replied to Mr Ozdoyev that, since Mr Medov had been detained by FSB officers from Chechnya, all complaints submitted by his family had been forwarded for investigation to the military prosecutor of the UGA.
On 7 July 2004 the Chief of the FSB Department for Chechnya wrote to the applicant and stated that Mr Medov had not been arrested or detained by its officers and that they had no information about his whereabouts.
On 9 July 2004 Mr Adam Medov’s relatives sent fifteen letters to the Prosecutor of Ingushetia, the Minister of the Interior of Ingushetia and the NGO Memorial, in which they described the known circumstances of Mr Medov’s apprehension and requested that an investigation into the abduction be carried out and his whereabouts be established.
On 9 July 2004 the Chairman of Memorial, Mr Orlov, and a member of the Human Rights Commission with the President of Russia, Mrs Gannushkina, met in Ingushetia with Mr M-v, the prosecutor of the Sunzhenskiy District. The applicant submitted a transcript of that discussion signed by Mr Orlov. According to that document, on 17 June 2004 Mr M-v had been informed that at about 7 p.m. a group of armed persons had been stopped at the Kavkaz-1 roadblock while trying to take two persons to Chechnya. The armed persons had produced documents to show they were FSB officers from Chechnya and insisted that they were acting lawfully. The prosecutor had demanded that they be taken to the Sunzhenskiy ROVD and personally went to the roadblock, but by that time they had agreed to go and had driven to the Sunzhenskiy ROVD. At the ROVD the detained persons had produced identity documents issued by the FSB Department for Chechnya bearing the names Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. They had also produced documents authorising them to arrest Mr Adam Medov and K., who had been found by the policemen in the boots of the cars. Mr M-v had called the local FSB office, which confirmed that the apprehension had been legal. The prosecutor had had to order the release of the detained persons, who had departed for Chechnya through a back door, taking the two men with them.
In July-August 2004 the applicant and Mr Adam Medov’s mother wrote several letters to the Prosecutor General, the Prosecutor of the Chechen Republic, the FSB Department for Chechnya, and the Prosecutor of the Sunzhenskiy District, referring to the information obtained in July and asking for information about Mr Adam Medov’s whereabouts and news of the investigation.
On 19 July 2004 the Russian Human Rights Commissioner wrote to the General Prosecutor and the Director of the FSB in respect of Mr Adam Medov’s arrest and detention.
On 25 July 2004 the deputy chief of the FSB Department for Chechnya replied to the applicant. He denied that Mr Adam Medov had been arrested or detained by the Department’s officers and stated that they had no information on his whereabouts. The letter further stated that Lieutenant-Colonel Beletskiy V.V., Detective Shurov A.G., Corporal Parfenov D.A. and Sergeant Minbulatov I.Yu. were not members of staff of the Department.
On 17 August 2004 the General Prosecutor’s Office replied to the Russian Human Rights Commissioner, stating that a criminal investigation into the abduction was pending, and that at the moment no law-enforcement authority possessed information about Mr Adam Medov’s arrest and detention or whereabouts. The letter also stated that on 17 June 2004 the six armed men and their two prisoners had been released from the Sunzhenskiy ROVD upon orders of the then acting Minister of the Interior of Ingushetia, Mr Kostoyev, who had been killed on 21 June 2004.
On 9 September 2004 the FSB replied to the Human Rights Commissioner and stated that the service had no information about Medov’s arrest and detention or whereabouts, and that the four named servicemen were not members of the FSB Department for Chechnya.
On 15 September 2004 the applicant complained to the Prosecutor General about the inactivity of the investigator in charge of the case concerning her husband’s abduction.
On 25 November 2005 the applicant applied in person to the investigator in charge of the case with a request to conduct certain investigative measures, including questioning of the officers who had been on duty at the roadblock on 17 June 2004 and the officer who had escorted her husband and the persons that had detained him to the border between Ingushetia and Chechnya. According to the applicant, during her visit in person the investigator had refused to accept the application or include it in the case file. She had then sent it by registered mail.
On 29 December 2004 the applicant complained to the Sunzhenskiy District Court of the Republic of Ingushetia about the investigator’s refusal to accept the application of 25 November 2005 and to take the requested investigative measures.
On 25 January 2005 the Sunzhenskiy District Court examined the complaint. At the hearing the investigator submitted that the applicant had applied to be provided with information on the progress of the investigation once and had received a written reply. He had not received any other applications from her. He contended that the investigative measures requested by the applicant had been taken; however, he could not inform her of the results until the preliminary investigation was completed. The court dismissed the applicant’s complaint and held, inter alia:
“In accordance with [the Code of Criminal Procedure] the victim may be familiarised with the materials of the criminal case file upon the completion of the preliminary investigation. Accordingly, [the investigator’s] refusal to familiarise the victim with the materials of the case file was lawful.”
The decision could be appealed against within ten days.
On 14 February 2005 the applicant submitted an appeal together with an application to restore the time-limit for appeal due to the decision having been served on her only on 4 February 2005.
On 10 March 2005 the Sunzhenskiy District Court refused the application to restore the time-limit for appeal on the ground that the applicant had been present at the hearing of 25 January 2005, where the decision had been read out.
On an unspecified date the decisions of 25 January and 10 March 2005 were quashed by the Supreme Court of the Republic of Ingushetia and the case remitted to the Sunzhenskiy District Court for a fresh examination.
(ii) Progress of the investigation
The Government submitted the following information concerning the progress of the investigation.
On 22 July 2004 criminal investigation no. 04600045 was instituted into the abduction of Mr Adam Medov.
On 29 July 2004 the investigator questioned as a witness I., deputy prosecutor of the Sunzhenskiy District. I. submitted that on 17 June 2004 he had been on duty on the premises of the District Prosecutor’s Office. At around 9 p.m. he was informed by the head of the Sunzhenskiy ROVD that unknown persons who had tried to take Mr Medov and K. through the checkpoint had been brought to the ROVD. They had presented themselves as FSB officers. I. had immediately informed B., the prosecutor of the Sunzhenskiy District. B. had told him that the persons brought to the ROVD had with them all necessary documents. I. was questioned again on 20 October 2004.
On 29 July, 2 August and 5 October 2004 the investigator also questioned relatives of Mr Adam Medov.
On 30 July 2004 the applicant was granted the status of a victim in the criminal proceedings. She was questioned on 5 August 2004.
On 5 August 2004 the investigator questioned A., the head of the Sunzhenskiy ROVD. On 7 August 2004 he questioned E., an officer of the Sunzhenskiy ROVD. On 9 August 2004 the investigator questioned B. and Kh., the heads of the Sunzhenskiy ROVD, and on 16 August 2004 he questioned A., an officer of the Sunzhenskiy ROVD.
On 17 August 2004 the investigator questioned as witnesses two police officers of the special police unit of the Ministry of the Interior of Ingushetia.
On 13 September 2004 the investigator questioned six officers of the traffic police of Ingushetia.
On the same date the prosecutor of military unit no. 04062 questioned the head of the Sunzhenskiy District Department of the FSB and on 18 October 2004 his deputy.
On 22 December 2004 the preliminary investigation was suspended on the ground that the person to be charged with the offence had not been identified.
On 1 April 2005 the deputy prosecutor of the Sunzhenskiy District quashed the decision to suspend the investigation.
On 5 April 2005 the investigation was resumed.
On 5 May 2005 the preliminary investigation was suspended again on the ground that the person to be charged with the offence had not been identified.
On 31 May 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation and transmitted the case to the Prosecutor’s Office of the Sunzhenskiy District for additional investigation.
On 1 June 2005 the investigator questioned as witnesses two neighbours of Mr Adam Medov.
On 1 July 2005 the investigator suspended the preliminary investigation again on the ground that the person to be charged with the offence had not been identified.
On 3 October 2005 the first deputy prosecutor of the Republic of Ingushetia quashed the decision to suspend the investigation.
According to the Government, in the course of the investigation requests for information were sent to the Prosecutor’s Office of the Chechen Republic, prosecutor’s offices and investigative authorities of other Caucasian regions, the military prosecutor of UGA, the FSB Department for Northern Caucasia, the Ministry of the Interior of Ingushetia, medical institutions, a mobile network operator, plane and train ticket offices, civil registrars, and passport and visa services. The investigative authorities also checked the registers of unidentified dead bodies and temporary detention facilities. According to the information received, the persons who presented themselves as FSB officers during the documents check had never served at the FSB and the documents presented had never been issued to them by the State authorities. Neither the Ministry of the Interior nor the FSB had conducted any operations in order to arrest Mr Medov and K. The Prosecutor’s Office of the UGA had neither instituted proceedings against Mr Medov and K. nor arrested them.
Despite specific requests made by the Court on two occasions, the Government did not submit any documents from the file in criminal case no. 04600045. 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.
3. Alleged intimidation of the applicant
(i) The applicant’s account
On 10 March 2005 the applicant submitted a letter to the Court, in which she alleged that in January – March 2005 persons who claimed to belong to the FSB had offered her money for the withdrawal of her application via a relative of hers. She had also been personally contacted by a man claiming to be an officer of the FSB who had threatened her and offered money for the withdrawal of her application before the Court.
After the application had been communicated to the Government, the applicant maintained the complaint concerning the events that had allegedly taken place in January – March 2005. She made no new allegations.
(ii) The Government’s account
The Government submitted that State agents had not hindered the applicant’s right to petition the Court. Furthermore, the applicant had not applied to the Prosecutor’s Office of the Republic of Ingushetia in connection with the alleged threats and offers of money for the withdrawal of her application.
B. Relevant domestic law
Article 9 § 53 of the FSB Regulations of 11 August 2003 provides that the FSB must take measures to encode members of staff of the authorities and troops, and persons that cooperate with the authorities and troops on a confidential basis, which measures include the issuance and usage for these purposes of documents of federal executive authorities, enterprises and institutions (undercover documents).
COMPLAINTS
1. The applicant submitted that the circumstances of her husband’s disappearance, the information received in 2005 and the lack of any news of him since June 2004 indicated that her husband, Mr Adam Medov, might have been killed by State agents in violation of Article 2 of the Convention. She further complained that the investigation into her husband’s abduction did not comply with that provision of the Convention.
2. The applicant submitted that there were strong reasons to believe that her husband had been subjected to treatment in violation of Article 3 of the Convention.
3. The applicant 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 Mr Adam Medov.
4. The applicant complained that she had no effective remedies in respect of the above violations, contrary to Article 13 of the Convention.
5. Referring to the incidents which allegedly occurred in 2005, the applicant complained that the respondent Government had failed to comply with its obligations under Article 34 not to hinder in any way the right of individual petition.
THE LAW
A. The Government’s objection concerning exhaustion of domestic remedies
The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted in this regard that the investigation into the abduction of the applicant’s husband had not yet been completed.
The applicant disputed the Government’s objection. She submitted that they had failed to indicate what remedy she had to exhaust. Inasmuch as their objection related to the fact that the investigation was still pending, having referred to Imakayeva v. Russia (dec.), no. 7615/02, 12 February 2005, the applicant contended that this argument pertained to the merits of her complaint.
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 applicant complained under Article 2 of the Convention of a violation of the right to life in respect of Mr Adam Medov 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 circumstances of Mr Medov’s disappearance were under investigation. It had not been established that he had died or that any State agents had been involved in his abduction. The investigation was in compliance with Article 2 of the Convention.
The applicant submitted that, since her husband had been missing for a very lengthy period, it could be presumed that he was dead. The presumption was further supported by the prevalence of forced disappearances in Chechnya at the material time. Furthermore, concordant evidence proved that her husband had been apprehended by agents of law-enforcement bodies. In particular, it was not contested by the Government that between 15 and 17 June 2004 Mr Medov had been held at the FSB Department in the Republic of Ingushetia. Furthermore, when Mr Medov had been brought to the Sunzhenskiy ROVD along with K. and persons who had papers showing that they were FSB officers, the prosecutor of the Sunzhenskiy district had contacted the FSB Department in the Republic of Ingushetia which had confirmed that the FSB officers had acted lawfully in having detained Mr Medov and K. Moreover, although the Government argued that the FSB had never issued official documents for the persons who had apprehended Mr Medov, they had presented no evidence that the FSB register had been checked in the course of the investigation. In particular, no evidence had been furnished to show that the FSB register of “undercover documents” issued under Article 9 § 53 of the FSB Statute had been checked. As regards the efficiency of the investigation, the applicant argued that even though the investigation had been opened five days after her husband’s disappearance, which did not as such constitute a lengthy delay, this delay nevertheless appeared to be detrimental to the progress of the investigation since it had deprived the investigator of the opportunity to question the members of the armed group that had apprehended Mr Medov. Furthermore, the investigative authorities failed to question the relevant FSB officers and to check the FSB registers. They had also failed to inform the applicant 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 applicant complained that there were strong reasons to believe that her husband had been subjected to treatment in violation of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government submitted that the investigation had produced no evidence that Mr Medov had been subjected to treatment prohibited by Article 3 of the Convention.
The applicant submitted that the Government had failed to produce any evidence that could refute her allegations. She further contended that the investigation had not been efficient for the reasons similar to those set out above in relation to Article 2 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.
3. The applicant complained that her husband 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 there was no evidence that Mr Medov had been deprived of his liberty in violation of Article 5 of the Convention. In particular, he had not been detained in detention facilities for suspects or for persons under administrative arrest.
The applicant noted that, although the Government stated that there was no evidence of Mr Medov’s unlawful detention and that he had not been held in any detention facilities, they did not dispute that he had been deprived of his liberty by force. She further contended that her husband’s detention did not fall into any of the exceptions provided for by Article 5
§ 1 of the Convention. Moreover, although he had been detained by State agents, she had never been provided with any information about his whereabouts and, therefore, his detention should be regarded as unacknowledged.
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 applicant complained under Article 13 of the Convention that she 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 applicant had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented her from using those remedies. In particular, she had been granted the status of a victim in the criminal proceedings and received replies to all her applications submitted within the framework of the proceedings. The investigation into her husband’s disappearance was still pending. At the same time the applicant had not applied to domestic courts with any complaints concerning either the unlawful detention of her husband or actions of the agents of the law-enforcement bodies.
The applicant contested the Government’s submissions. Firstly, she contended that the investigation into her husband’s disappearance was ineffective. Secondly, she pointed out that she had applied to domestic courts with complaints concerning the investigator’s inactivity, but they had failed to address her arguments properly.
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. Having regard to the incidents which allegedly took place in 2005, the applicant complained that the respondent Government had failed to comply with its obligations under Article 34, the relevant parts of which provide as follows:
“The Court may receive applications from any person ... claiming to be the victim of a violation ... of the rights set forth in the Convention ... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The Court decides to adjourn the examination of this complaint until the examination of the merits of the application.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the State’s compliance with its obligations under Article 34 of the Convention;
Decides to join to the merits the Government’s objection concerning exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits.
Søren NielsenChristos Rozakis
RegistrarPresident
[1] There must have been a misprint of the date of the detention.
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