MESHAYEVA AND 15 OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27248/03
by Salamat Magomedsaliyevna MESHAYEVA
and 15 Others
against Russia

The European Court of Human Rights (First Section), sitting on 27 March 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
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:Ms Salamat Magomedsaliyevna Meshayeva, born in 1961;Mr Lom-Ali Akhiadovich Meshayev, born in 1950;Ms Ayshat Lom-Aliyevna Meshayeva, born in 1975;Ms Petimat Lemayevna Elmurzayeva, born in 1989;Ms Kheda Leomayevna Meshayeva, born in 1992;Mr Khasan Leomayevich Meshayev, born in 1993;Mr Khuseyn Leomayevich Meshayev, born in 1993;Mr Mokhdan Lom-Aliyevich Meshayev, born in 1974;Mr Mukhtar Suleymanovich Saydayev, born in 1971;Ms Zharman Gazikhadzhiyevna Saydayeva, born in 1940;Mr Aslan Suleymanovich Saydayev, born in 1963;Ms Milana Aslanovna Saydayeva, born in 1997;Ms Rumisa Dzhabrailovna Musayeva, born in 1965;Mr Uvays Suleymanovich Saydayev, born in 1968;Mr Islam Suleymanovich Saydayev, born in 1983;Mr Magomed Uvaysovich Saydayev, born in 2000.

They are Russian nationals and live in the village of Martan-Chu, Urus-Martan district, Chechnya. 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.

1. Apprehension of the applicants’ relatives

The applicants represent two families. Two of their relatives were detained on the night of 16 to 17 December 2002 in the village of Martan-Chu of the Urus-Martan district. The two men have not been seen after the day of detention, and the families have been conducting the search for them together.

(a) Apprehension of Leoma Meshayev

The first eight applicants are relatives of Leoma Akhiatovich Meshayev, born in 1952. The first applicant is his wife, the second applicant is his brother, the third and the eighth applicants are his niece and nephew. The fourth, fifth, sixth and the seventh applicants are his children. Leoma Meshayev worked as a driver and tractor mechanic. The first applicant suffers from a number of chronic diseases and has been granted disabled status of the third degree. The fifth applicant, Meshayevs’ minor daughter, is seriously ill and was granted disabled status of the first degree. The applicants submitted that Leoma Meshayev had suffered from tuberculosis. In March 2003 the heads of administrations of Martan-Chu and of the Urus-Martan district certified that there was no information to suspect Leoma Meshayev in the involvement with the illegal armed groups or any other criminal activities.

The Meshayev family lived in their own house at 12 Rechnaya Street in the village of Martan-Chu, Urus-Martan district. About 3 a.m. on 17 December 2002 a group of five or seven men wearing camouflaged uniforms or white camouflage cloaks entered the house. They were all armed and masked and spoke Russian and Chechen.

One of the intruders woke up Leoma Meshayev and told him in Chechen “Leoma, wake up!” They threw him on the floor and handcuffed him. When one of the men pointed his automatic rifle at Meshayev’s nine-years old son, another told him in Chechen “Don’t touch the children, they are not guilty”. Then the armed men escorted Leoma Meshayev out of the room, without permitting him to put on warm clothes. He was wearing a short-sleeved T‑shirt, trousers and was allowed to put on a pair of boots.

The first applicant submitted that she had cried and asked them not to take her husband away and that he hadn’t done anything. The armed men had ordered her to keep quiet, or they would use the firearms. They took along her husband’s passport, in which there were inserted documents for his Ural truck. When they were leaving the house, one of the men hit the first applicant with a rifle but on the head, as a result of which she briefly lost consciousness. The first applicant noticed this person quite closely and submitted that he was short and plump, had large blue eyes in the opening of the mask and spoke Russian.

When the first applicant came to her senses, she found that the men had closed the entrance door to the house by pushing a wardrobe against it. The first applicant managed to open it, with difficulty, and went out into the courtyard. The servicemen there tried to start her husband’s Ural truck, but failed. They then proceeded along the Svoboda Street towards the cemetery. The first applicant ran after them, but they started to shoot towards her from machine guns with silencers and she had to keep a distance.

The first applicant reached the cemetery and there she lost the men from sight. A woman who lived near the cemetery told her on the following day that she had seen military vehicles – an armoured personnel carrier (APC), two Ural trucks and a UAS vehicle – all without hull numbers, stationed near her house. She had also seen a group of armed men around these vehicles, who had loaded her neighbour’s winter supply of wood into one of the vehicles before they had left.

Leoma Meshayev’s brother, the second applicant, stated that in the early hours of 17 December 2002 he had been awoken by the cries of his sister-in-law, the first applicant, who asked for help and said that his brother had been taken away. The second applicant ran from his house into the nearby main street leading towards Urus-Martan and saw an APC, Ural trucks and a UAZ vehicle passing through the military roadblock towards Urus-Martan. In the moonlight the witness clearly saw that the cars were not stopped or detained at the roadblock.

The first and the second applicants submitted detailed statement of facts about the events of the night of 16-17 December 2002. The applicants also submitted a hand-drawn plan of Martan-Chu with indication of the places to which they referred.

The applicants have had no news from Leoma Meshayev after that night.

The Government in their observations did not dispute the facts as presented by the applicants. They stated that it had been established that on 17 December 2002 unidentified armed men wearing masks had entered the applicants’ house at 12 Rechnaya Street in Martan-Chu and taken away Leoma Meshayev, whose whereabouts had not been established.

(b) Apprehension of Bislan Saydayev

Applicants nine to sixteen are relatives of Bislan Suleymanovich Saydayev, born in 1977. The ninth, eleventh, fourteenth and fifteenth applicants are his brothers. The tenth applicant is his mother. The twelfth and sixteenth applicants are his niece and nephew; and the thirteenth applicant is his sister-in-law. The applicants submitted that in November 2005 the eleventh applicant had been abducted by unknown persons at the market in Grozny and the family have had no news of him ever since. The applicants did not submit any complaints in this respect.

In March 2003 the heads of administrations of Martan-Chu and of the Urus-Martan district certified that there was no information to suspect Bislan Saydayev in the involvement with the illegal armed groups or any other crimes. The applicants submitted that several days prior to Bislan Saydayev’s detention he, together with the fourteenth applicant, travelled in the latter’s Kamaz truck together with the military commander of the village and his staff to Mozdok in North Ossetia, to collect New Year presents for the servicemen stationed in the village.

The Saydayev family lives in their own house in Svoboda Street in Martan-Chu. In the night of 16 to 17 December 2002 the applicants and their family members were at home sleeping. At about 3 a.m. a group of about 30 men entered the house. They were all armed with machine guns equipped with silencers and masked. Some were dressed in green or black camouflage uniforms, others wore white camouflage cloaks on top. They spoke Russian and Chechen. They did not explain anything to the applicants and did not produce any papers. They proceeded to check the documents of all the men in the family.

The tenth applicant, Bislan Saydayev’s mother, submitted that she had been awoken in the night to find the room filled with armed servicemen. A group of soldiers were standing above Bislan Saydayev’s bed. They briefly searched the room and ordered Bislan Saydayev to dress. The tenth applicant asked why they were taking him away and they told her not to worry. They also took along Bislan Saydayev’s identity documents.

The fourteenth applicant, Bislan Saydayev’s brother, submitted that in the early hours of 17 December 2002 he had been awoken by the light of several torches pointed at him. He was ordered not to move and to produce his documents. The fourteenth applicant showed where his documents were, the men checked them and ordered him to get out of bed and to show who was sleeping in which room. When the servicemen were taking his brother away, the fourteenth applicant asked where they could find him, but received no reply.

The eleventh applicant, Bislan Saydayev’s other brother, submitted that on the night of 17 December 2002 he was sleeping with his family in a separate house within the same courtyard. He was awoken at about 3 a.m. by his mother, the tenth applicant, who knocked on his door and said that Bislan had been taken away. The eleventh applicant rushed into the courtyard and his mother pointed towards the back of the yard, to the vegetable patch. The eleventh and fourteenth applicant tried to pursue the men who had taken their brother away, but they shouted at them to get back and made a few warning shots from automatic guns with silencers, so the applicants had to stop. The applicants noticed an APC, an Ural truck and a UAZ vehicle that had been stationed about 200 metres from their house in the Rechnaya Street. The vehicles left towards Urus-Martan.

The eleventh applicant submitted that he had immediately gone to the village military commander’s office but was not allowed to see anyone. Then he had met a fellow villager Sultan M. who confirmed that he had just seen a convoy of an APC, an Ural and a UAZ passing through the military roadblock at the exit from Martan-Chu towards Urus-Martan.

In addition to their own detailed statements of facts, the applicants also submitted a hand-drawn plan of Martan-Chu with indication of the places to which they referred.

The applicants have had no news from Bislan Saydayev after that night.

The Government in their observations did not dispute the facts as presented by the applicants. They stated that it had been established that on 17 December 2002 unidentified armed men wearing camouflage uniforms and masks had entered the applicants’ house at Svoboda Street in Martan-Chu and taken away Bislan Saydayev to an unknown direction.

2. Search and investigations into the “disappearances”

Immediately after the detention of their family members the applicants started to search for them. On numerous occasions, both in person and in writing, the applicants and their family members applied to the prosecutors of various levels, to the Ministry of the Interior, to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, to military commanders, the Federal Security Service (FSB), to the administrative authorities, media and public figures. The applicants also personally visited detention places in Chechnya as well as further in the Northern Caucasus. The search was primarily carried out by the first and the ninth applicant in respect of their husband and brother, respectively.

Besides personal visits, the applicants submitted letters to the prosecutors and other authorities in which they stated the facts of their relatives’ detention and asked for assistance and details on the investigation. The applicants have submitted copies of some letters they had written.

The applicants received hardly any substantive information from official bodies about the investigations into the disappearances and its results. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors’ services. Below is a summary of letters retained by the applicants and replies they received from the authorities.

(a) Search for Leoma Meshayev

The applicants submitted that in the weeks following Leoma Meshayev’s arrest they applied in person to the district military commander’s office, the district department of the Federal Security Service (FSB), the district department of the interior (ROVD), the Urus-Martan District prosecutor’s office (the district prosecutor’s office) with inquiries about the fate of their relative.

Within this initial period the applicants also submitted written applications stating the circumstances of Mr Meshayev’s detention and requesting assistance in finding him. They did not retain copies of these applications, but on 5 January 2003 the district prosecutor’s office opened criminal investigation file no. 34002 into Leoma Meshayev’s abduction by unidentified armed persons in camouflage uniforms under Article 126 of the Criminal Code. The applicants submitted that they had learnt of the investigation only on 5 March 2003 when the first and the second applicants were questioned and granted victim status in the proceedings.

On 13 March 2003 the district prosecutor’s office informed the first applicant that the criminal investigation into her husband’s abduction had been adjourned due to failure to identify the culprits. In response to this information, the first applicant requested the district prosecutor to allow her to have access to the case-file.

On 3 April 2003 the first applicant submitted a statement about a missing person to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms.

On 5 April 2003 the first applicant wrote to the member of the State Duma elected from Chechnya and asked him for assistance in finding her husband.

On 18 April 2003 the first applicant wrote to the district prosecutor’s office and the ROVD and asked them to carry out a proper investigation into her husband’s abduction.

On 21 April 2003 the district prosecutor’s office replied to the first applicant that the investigation had taken all possible steps but failed to identify the perpetrators of the crime. She was invited, in turn, to inform the prosecutors of any new information about the kidnapping which would come to her knowledge.

On 29 April 2003 the applicants published a notice in the Marsho newspaper, with a description of the circumstances of their relatives’ apprehension and a call for any information about them.

On 14 May 2003 the Chechnya Prosecutor’s Office forwarded the first applicant’s complaint to the district prosecutor’s office.

On 11 June 2003 the first applicant wrote to the Urus-Martan military commander and to the Chechnya President and asked them to help her find her husband.

On 18 June 2003 the first applicant again requested the district prosecutor to give her access to the documents of the criminal investigation. On 1 July 2003 the prosecutor’s office invited the first applicant to access the file.

On 10 July 2003 the military prosecutor of the United Group Alliance (UGA) in Chechnya forwarded the first applicant’s complaint to the military prosecutor of military unit no. 20102 in Khankala.

On 28 July 2003 the district military commander informed the first applicant that, following an internal investigation, it was established that his office had taken no part in the apprehension of her husband and had no information about his whereabouts or the identity of the perpetrators.

On 30 July 2003 the first applicant appealed the adjournment of the criminal investigation to the Chechnya Prosecutor’s Office. She reasoned that Leoma Meshayev, and also Bislan Saydayev who had been detained on the same night by the same group of persons, could have only been detained by servicemen because of the use of military vehicles and the fact that the vehicles had been allowed to travel freely through the roadblock, despite the curfew in place. The first applicant requested the prosecutor to resume the investigation, to question the servicemen from the roadblock and the officers of the military commander’s office and other law-enforcement bodies of the district about the details of the operation, to identify and question witnesses among local residents, to collect and examine bullets and cartridges left after the abductors had shot at the applicant who was trying to pursue them. The complaint requested him to carry out the investigation urgently, before the traces of the detained men had been lost. The first applicant also requested the prosecutor to join the investigation with the one opened into the abduction of Bislan Saydayev.

On 4 September 2003 the district prosecutor’s office replied to the first applicant that the investigation had taken all possible steps to solve the crime, but had failed to identify the culprits.

On 4 September 2003 the military prosecutor of the military unit no. 20102 forwarded the first applicant’s complaint to the military commander of the Urus-Martan district.

On 17 November 2003 the SRJI, acting on behalf of the first and the ninth applicant, wrote to the district prosecutor and asked him to inform them of the state of the investigation in the files nos. 34002 and 34041. The letter further asked to join the investigations and to carry out an effective investigation into the abductions. A copy of that letter was forwarded to the Chechnya Prosecutor’s Office.

On 17 December 2003 the Chechnya Prosecutor’s Office replied to the SRJI and informed them that on 10 December 2003 the criminal investigations into the abductions of Mr Meshayev and Mr Saydayev had been joined. The investigation continued to take steps to identify the culprits and to establish the whereabouts of the missing men. Further details would be sent to the applicants directly.

On 7 July 2004 the SRJI wrote to the district prosecutor’s office and again asked for information about the progress of the investigation.

On 21 July 2004 the district prosecutor’s office replied to the SRJI that the two criminal cases had been joined under the file number 34002 and that on 13 December 2004 (so in the text) the investigation had been adjourned. It had taken a number of steps aimed at solving the crime, but they had not brought about any results. Efforts aimed at finding the two men would continue.

On 14 November 2005 the SRJI asked the district prosecutor’s office to inform them of the progress in the investigation and to carry out the following actions: to identify the provenance of the military vehicles involved in the abduction, to locate and review all registration documents related to the movement of military vehicles in the district on the night in question, to identify the authorities that had carried out special operations in the district on 17 December 2002 and to question their officers about the detention of Leoma Meshayev and Bislan Saydayev, to question the servicemen of the Urus-Martan military commander’s office and other officials in charge of maintaining the curfew hours.

(b) Search for Bislan Saydayev

In the morning after his brother’s abduction, on 17 December 2002, the fourteenth applicant went to the military commander of the village. He submitted that the commander had told him that he had not been aware as to who had detained his brother. The commander also told him that on the previous day, on 16 December 2002, he had received a warning that an operation was being prepared in their village, but that later this operation had been recalled. He was not informed about the reasons for the operation or for its cancelling. He also allegedly promised to help them if Bislan Saydayev had been detained by the military, but said that he could not do anything if he had been detained by the FSB.

The applicants submitted that in the following weeks they applied in person with inquiries about the fate of their relative to the district military commander’s office, the FSB, ROVD, the prosecutor’s office. The ninth applicant also addressed the head of Administration of Chechnya asking him to order a proper investigation into his brother’s detention by unidentified servicemen.

At some point the applicants submitted written applications to the authorities stating the circumstances of Mr Saydayev’s detention and requesting assistance in finding him. They did not retain copies of these applications, but kept copies of the later applications. On 24 March 2003 the ninth applicant requested the district prosecutor’s office to open a criminal investigation into his brother’s abduction or to inform him if his brother had been accused of any crime. He referred to their previous unsuccessful applications to various law-enforcement structures.

On 6 April 2003 the ninth applicant wrote to the member of the State Duma elected from Chechnya and to the Speaker of the State Duma complaining about his brother’s disappearance. He stated that they had in vain applied to various law-enforcement bodies. The ninth applicant asked the Duma to create a commission to investigate the phenomenon of “disappearances” in Chechnya.

On 11 April 2003 the district prosecutor’s office informed the ninth applicant that their office had opened criminal proceedings into his brother’s kidnapping.

On 23 April 2003 the ninth applicant was granted victim status in the criminal investigation file no. 34041 opened into his brother’s abduction by unidentified persons.

On 29 April 2003 the Chief Military Prosecutor’s Office forwarded the ninth applicant’s complaint to the military prosecutor of the UGA.

On 5 May 2003 the tenth, eleventh, fourteenth and fifteenth applicants asked the district prosecutor’s office to grant them victim status in the proceedings concerning the abduction of their son and brother. It is unclear if these requests have been granted.

On 6 June 2003 the military prosecutor of the UGA forwarded the ninth applicant’s complaint to the military prosecutor of military unit no. 20102 based in Khankala, Chechnya.

On 10 June 2003 the district prosecutor’s office informed the ninth applicant that on 10 June 2003 the criminal investigation no. 34041, opened on 10 April 2003, had been adjourned due to failure to identify the culprits. The applicant was informed of the possibility to appeal.

On 17 June 2003 the military prosecutor of military unit no. 20102 forwarded the ninth applicant’s complaint to the district prosecutor’s office and stated that there were no grounds to suspect the involvement of the military servicemen.

On 19 June 2003 the Chechnya Prosecutor’s Office forwarded the ninth applicant’s complaint to the district prosecutor’s office.

On 3 July 2003 the tenth applicant addressed the Urus-Martan district military commander and asked him to help her find her son.

On 28 July 2003 the ninth applicant appealed the adjournment of the criminal investigation to the Chechnya Prosecutor’s Office. He reasoned that his brother could have only be detained by servicemen because of the use of military vehicles and the fact that the vehicles had been allowed to travel freely through the roadblock, despite the curfew in place. The ninth applicant requested to resume the investigation, to question the servicemen of the roadblock and the officers of the military commander’s office and other law-enforcement bodies of the district about the details of the operation, to identify and question witnesses among local residents, to collect and examine bullets and cartridges left after the abductors had shot at the eleventh and fourteenth applicant who were trying to pursue them. The complaint requested to carry out the investigation urgently, before the traces of Bislan Saydayev had been lost.

On 9 August 2003 the Chechnya Prosecutor’s Office forwarded the ninth applicant’s complaint to the district prosecutor’s office.

On 29 September 2003 the ninth applicant requested the district prosecutor’s office to allow him to have access to the materials of the adjourned criminal investigation into his brother’s abduction.

(c) Proceedings against law-enforcement officials

On 6 April 2006 the first and the ninth applicants applied to the Urus-Martan Town Court (“the town court”), complaining that the Urus-Martan prosecutor’s office had failed to investigate the disappearance of Leoma Meshayev and Bislan Saydayev effectively and asking to be granted access to the case file.

On 4 May 2005 the town court partially allowed the complaint against the district prosecutor’s office based on the latter’s failure to take effective steps and investigate the abduction. The court ordered the district prosecutor’s office to resume the investigation and to carry out a number of investigative actions as requested by the applicants, such as questioning of the residents of Martan-Chu and the servicemen of the military roadblock situated on the road towards Urus-Martan who had been on duty on the night of 17 December 2002. The court refused to grant the applicants access to the case file, stating that that right was accorded to victims only on completion of the investigation, and not when the proceedings were adjourned. On 7 July 2005 the Chechnya Supreme Court upheld this decision.

3. Information submitted by the Government about the investigation

In reply to the Court’s requests, the Government submitted the following information concerning the progress of the investigation.

On 5 January 2003 the district prosecutor’ office opened criminal investigation file no. 34002 concerning the abduction of Leoma Meshayev on 17 December 2002. According to a document issued on 21 June 2006 by the acting Urus-Martan district prosecutor, the main version of the crime examined by the investigation was the involvement of “power structures and military units” (“силовых структур и воинских подразделений»).

On 10 April 2003 the district prosecutor’s office opened criminal investigation file no. 34041 concerning the abduction of Bislan Saydayev on 17 December 2002.

On 13 December 2003 the investigation of the two cases was joined and the case file was assigned number 34001 (so in the text).

On 8 January 2003 the first applicant was questioned and granted victim status in the proceedings. She was also questioned again on several occasions. She stated that on the night of 16 to 17 December 2002 about five armed persons wearing military uniforms who had spoken Russian and Chechen had entered their house and had abducted her husband. The second applicant was questioned on 8 January 2003 and gave similar statements; however, he stated that there had been about ten abductors.

The Government submitted to the Court only one witness statement made by the first applicant, dated 23 June 2006, in which she described the circumstances of her husband’s arrest and the fact that she had been hit in the face by one of the intruders.

In their observations the Government referred to witness G.’s statement of 10 December 2003 that on the night of 16 December 2003 [should probably be 2002] a large part of his supply of cut wood for winter, which had been stored near the cemetery, had been stolen. He had seen the tracks of heavy military vehicles near that place, such as APCs or Ural trucks. On 23 June 2006 the investigation decided not to open criminal proceedings in relation to the theft in view of the expiration of the statutory limits.

According to the Government, on 23 April 2003 the investigation granted victim status to the ninth applicant. When questioned he stated that at about noon on 17 December 2002 he had returned from Grozny and had learnt from his brother, the fourteenth applicant, that at about 3 a.m. on that night unknown armed persons had entered their house and taken away their other brother, Bislan Saydayev. The tenth and the fifteenth applicants gave similar statements on unspecified dates.

The Government stated that other relatives of Bislan Saydayev, notably, the tenth, fourteenth and fifteenth applicants, had not sought the status of victims in the proceedings related to his disappearance and had not been accorded it.

The Government noted that the applicant’s statements that their relatives had been detained by military servicemen could not be confirmed during the investigation. The applicants did not recall any details of the clothing, arms or distinctive marks on the uniforms of the abductors.

The Government also noted that the investigation had found no grounds to support the first applicant’s allegations that she had been hit during the arrest of her husband, as she and other witnesses had not mentioned this during questioning. As to the first applicant’s statement that the armed men had also taken along her husband’s passport, the Government informed the Court that the investigation had decided not to open criminal proceedings in this respect, due to expiration of statutory limits. Finally, the Government contended that Leoma Meshayev had not been on the register of the local tuberculosis health centre, despite the applicants’ allegation that he had suffered from that disease.

According to the Government, the investigators sought information about the two men from various State authorities. On unspecified dates the district military commander’s office, the Urus-Martan district department of the FSB and “other power structures” stated that they had no information about the carrying out of special activities on the night in question in Martan-Chu. Their offices had not detained Leoma Meshayev and Bislan Saydayev. The law-enforcement agencies of Chechnya informed the investigation that they had never detained or arrested the two missing men, nor carried out a criminal investigation in their respect.

The investigation failed to establish the whereabouts of Mr Meshayev and Mr Saydayev. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of the “special branches” (специальных подразделений) in the crime.

As it appears from the documents submitted by the Government, the investigation had been suspended and reopened a number of times. The latest decision to reopen the proceedings had been taken on 21 June 2006. The applicants had been occasionally informed of these developments. According to the Government, the investigation was under the control of the Prosecutor General’s Office.

Despite specific requests by the Court the Government did not submit a copy of the file in criminal case no. 34002, providing only copies of decisions to suspend and resume the investigation and to grant victim status, as well as of the notifications to the applicants of the suspension and reopening of the proceedings. 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 breach 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.

COMPLAINTS

1. The applicants complained under Article 2 of the Convention about a violation of the right to life in respect of their relatives, Leoma Meshayev and Bislan Saydayev. The applicants submitted that the circumstances of their disappearance and the long period during which their whereabouts could not be established indicated that they were killed by the federal forces. The applicants also claimed that the State had failed in its positive obligation to protect the life of Leoma Meshayev and Bislan Saydayev. Finally, they complained that no effective investigation had been conducted into the disappearance of their relatives.

2. The applicants next referred to Article 3 of the Convention, claiming that they had suffered severe mental distress and anguish in connection with the disappearance of their close relatives and on account of the State’s failure to conduct a thorough investigation into that disappearance.

3. The applicants maintained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Leoma Meshayev and Bislan Saydayev.

4. The applicants alleged absence of any effective remedies in respect of their complaints under Articles 2 and 3 of the Convention, contrary to Article 13 of the Convention.

5. Finally, the applicants invoked Article 14 in conjunction with Articles 2, 3, 5 and 13 of the Convention, stating that the disappearance, lack of effective investigation and of domestic remedies were due to their Chechen ethnic origin and residence in Chechnya.

6. The applicants alleged, in their latest submissions, that the Government’s failure to produce copies of the file of the criminal investigation constituted a violation of Article 38 § 1 (a) of the Convention.

7. In their initial application the applicants also submitted complaints about their relatives’ ill-treatment under Article 3 and about their inability to have access to a court under Article 6. However, in their observations on the admissibility and merits of the application they specified that they did not wish to maintain these complaints. Accordingly, the Court finds no reason to proceed with the examination of these complaints.

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 applicants’ relative had not yet been completed.

The applicants disputed the Government’s objection. They argued that the criminal investigation had proved to be ineffective and that their complaints to that effect had been futile. They also alleged the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya and referred to the other cases concerning such crimes reviewed by the Court, as well as reports of various NGOs and international bodies.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the complaint about the effectiveness of the investigation, and thus 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 Mr Meshayev and Mr Saydayev, 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 the applicants’ relatives’ disappearance were under investigation. It had not been established that they had died or that State agents had been involved in their abduction. The investigation was in compliance with Article 2 of the Convention and the law-enforcement bodies were taking all possible steps aimed at solving the crime.

The applicants submitted that the representatives of the State should be held responsible for unlawful detention and killing of Leoma Meshayev and Bislan Saydayev. They stated that, since their relatives had been missing for a very lengthy period, it could be presumed that they were dead. That presumption was further supported by the circumstances in which they had been arrested, which should be recognised as life-threatening. The applicants contended that their relatives had been detained within the context of a security operation. They also stated that the Government’s failure to produce the documents from the case-file or to provide a plausible explanation of the events had put the burden of proof on the Government, who should be obliged to prove that their agents were not responsible for the arbitrary detention and killing of their relatives.

As regards the procedural obligation under Article 2, the applicants argued that, even though an investigation had been mounted into the disappearance, it was inefficient and the authorities had been unable to demonstrate any progress over a period of several years. A number of important steps had been taken too late, or not at all, such as identifying and questioning the State agents who could have been involved in the abduction. The applicants had had no opportunity to acquaint themselves with the case file, neither as victims nor in the context of their application to the Court.

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 as a result of the disappearance of their close relatives and the authorities’ complacency in the face of their complaints they 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 denied that allegation. They argued that the applicants who had been questioned by the investigating authorities had not stated that they had been subjected to ill-treatment.

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 Mr Meshayev and Mr Saydayev had been subjected to unacknowledged detention and thus deprived of 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 the two men had been deprived of their liberty in violation of Article 5.

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 under Articles 2 and 3. 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 available, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. The applicants had never applied to the courts in Chechnya or in the neighbouring regions with complaints concerning the allegedly unlawful detention of their relatives or against the actions of the law-enforcement bodies. When the applicants applied to the court on 4 May 2004, the Urus-Martan town court partially granted their claim and quashed the decision to adjourn the investigation.

The applicants cited the Court’s case-law on the subject and submitted that the only effective remedy in cases of enforced disappearance was a criminal investigation. As this had proved to be ineffective, the relevance of any other remedy had been undermined. Their application to a court with a complaint had not brought any positive results, and thus was not effective.

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 complained that they had been discriminated against in the enjoyment of their Convention rights, contrary to Article 14 of the Convention, which reads as follows:

“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 applicants alleged that they had suffered from prejudice and a hostile attitude on the part of the authorities as result of their ethnic origin and residence in Chechnya. They argued that similar violations of Articles 2, 3 and 5 of the Convention took place systematically in the territory of the Chechen Republic, and that the authorities did not investigate effectively such crimes committed by the representatives of the State.

The Government contended that the applicants had never been discriminated against in the enjoyment of their Convention rights on any ground.

The Court observes that no evidence has been submitted to it that suggests 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 exhaustion of domestic remedies;

Declares admissible, without prejudging the merits, the applicants’ complaints concerning the disappearance of their two relatives under Articles 2, 3, 5 and 13 of the Convention;

Declares inadmissible the remainder of the complaint.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy