FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 12703/02
by Khapta MUSAYEVA
against Russia
The European Court of Human Rights (First Section), sitting on 18 January 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 3 February 2002,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Khapta Musayeva, is a Russian national who was born in 1921 and lives in the city of Grozny, Chechnya. She is represented before the Court by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) are 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 applicant lives with her family in a private house at 17 Zabolotny Lane in the Oktyabrskiy District of Grozny. In the winter of 1999 – 2000 most members of the applicant’s family left Grozny because of the hostilities, which started in early October 1999. The applicant’s youngest son Yakub Iznaurov, born in 1966, remained in Grozny in order to look after the applicant who was unwell and could not travel. He had previously lived with his family in the Republic of Kalmykia, but came back to Grozny several years before the events described below and stayed with her, as according to a Muslim tradition, it was the youngest son’s duty to look after the elderly parents.
Yakub Iznaurov was married and had five minor children. In November 1999 Yakub Iznaurov’s wife and children left for the Republic of Ingushetia with the rest of the applicant’s family.
1. Detention of Yakub Iznaurov
(a) The applicant’s version of events
According to the applicant, the federal armed forces regained control over the northern and central parts of Grozny by the end of December 1999 and January 2000, respectively. The applicant further submitted that the southern part of the city, in which her house was situated, was taken over by the federal forces by 4 February 2000. On that day Russian servicemen warned those living in the applicant’s street that a serious “sweeping” operation (“zachistka”) would take place there the next day.
On 5 February 2000 at around 10 a.m. a group of about 50 servicemen in camouflage uniforms arrived at Zabolotny Lane and started checking the houses one by one. They left their military vehicles and armoured personnel carriers (“APCs”) at the end of the lane and proceeded along the street. They did not introduce themselves or produced any documents in justification of their actions.
Having been notified of the “sweeping” operation, the residents of Zabolotny Lane gathered in front of the applicant’s house, because there was a big cellar in the basement of the house, in which they used to hide from shelling during the winter. The federal soldiers ordered the men to undress and show their shoulders, arms and knees, in order to enable the servicemen to check if there were any signs of them having used firearms. When the soldiers did not find any suspicious signs, they ordered the male residents to show their identity documents.
A soldier who was checking Yakub Iznaurov’s passport noted that his permanent place of residence was in the Republic of Kalmykia. The serviceman asked the applicant’s son why he had come to Grozny and whether he had come to Chechnya to fight against the Russian forces. Without listening to Yakub Iznaurov’s explanations, he then called his superior, who ordered to take Yakub away for “the clarification of the circumstances”.
The applicant and other neighbours from the street tried to intervene and explain that Yakub had not been involved in any unlawful activities and that he had been staying with the other residents in the basement during the winter, but the servicemen kept saying that they would release him after the check. They then put the applicant’s son into a military vehicle without the registration plates. There was another man, Movladi D., along with his five-year-old son, in the car. The vehicle moved towards the settlement of Novye Aldy, and the applicant and other residents followed it.
The vehicle having stopped near the tram rails, the soldiers ordered the men out. They then brought three other men, Zelimkhan Dzhamaldayev, Magomed Gabacheyev and Rustam Asuyev, to the same place. The servicemen ordered all the detained men to kneel on the rails and to put their hands up.
Then a new officer in the rank of colonel arrived in a car. The colonel, who had military insignia – shoulder straps with three stars, saw the child among the detained men and ordered the soldiers to take him away from the place, but when they tried to do that, the boy started screaming and seized his father’s leg. This made the colonel check Movladi D.’s documents himself and let him go together with his son.
The rest of the men remained kneeled and undressed to their waists. The servicemen tied the men’s hands behind their backs with metal wire and pulled their caps over their faces. They also recorded these actions with a video camera.
The detained men were kept in that position for about two hours. Then the soldiers took them back into the same military vehicle. The applicant and other relatives asked the servicemen where they were taking the men. The soldiers replied that the detainees would be delivered to Staraya Sunzha, a suburb of Grozny, for questioning. The servicemen also said that they were from the special police unit of St. Petersburg (“the St. Petersburg OMON”). The military vehicles then drove off in a column, together with other vehicles that had arrived from Novye Aldy.
There has been no news of the applicant’s son or the other three detainees ever since.
The applicant submitted eight detailed eye-witness statements by her neighbours, including Movladi D. and the mothers of the three other men detained on that day, about the events of 5 February 2000. She also submitted a number of press articles and NGO reports, including that by the Memorial Human Rights Centre entitled “Mopping Up. Settlement of Novye Aldy, 5 February 2000 – Deliberate Crimes Against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 – преднамеренные преступления против мирного населения), relating to the events in the southern suburbs of Grozny on 5 February 2000 and subsequent investigation. They stated that on 5 February 2000 at least 60 civilians had been killed in the settlements of Novye Aldy and Chernorechye in the southern suburbs of Grozny. The Human Rights Watch Report of June 2000 entitled “February 5: A Day of Slaughter in Novye Aldi” put the blame for extra-judicial executions on the Russian police special units and military.
(b) The Government’s version of events
The Government relied on information provided by the Prosecutor General’s Office (Генеральная Прокуратура РФ) to the effect that, on 5 February 2000, at about 10 a.m., “unidentified men wearing camouflage uniforms and masks and armed with automatic firearms had arrived at Zabolotny Lane in the city of Grozny, detained the applicant’s son and taken him away in an unknown direction.
They also submitted that until the middle of February 2000 the vicinity of the applicant’s domicile was out of the federal armed forces’ control, which fact had ruled out the possibility for them to carry out any special operations within that territory on the date in question.
2. The applicant’s search for Yakub Iznaurov and the authorities’ replies
Immediately after her son’s detention, the applicant and other members of her family started searching for him. They coordinated their efforts with relatives of the three other men who had been detained on 5 February 2000 and subsequently disappeared. On numerous occasions, both in person and in writing, they applied to the prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya. In their letters to the authorities the applicant and her family members stated the facts of Yakub Iznaurov’s detention and asked for assistance and details on the investigation. They also visited different military commander’s offices and pre-trial detention centres in Chechnya and further afield in the region. These attempts yielded little result. On several occasions the applicant received copies of letters from various officials by which her requests had been forwarded to different prosecutors’ services.
On 6 February 2000 the applicant, together with the mothers of the three other detainees went to Staraya Sunzha, because on the day of her son’s detention the servicemen had mentioned that they would take the detained men there for questioning. A military officer in Staraya Sunzha told them that all the detainees had been taken to Khankala, the main Russian military base in Chechnya. The applicant tried to enter the Khankala military base, but was denied access by guards. On the same day the applicant and the mothers of the other detainees went to the administration of the Staropromyslovskiy District and talked to the head of the district administration, who wrote down the names of the detainees and promised to help.
On 7 February 2000 the applicant and the relatives of the other detainees lodged an application with the military commander of the Oktyabrskiy District of Grozny and asked for their children’s release. They applied to him again on 12 March and 5 May 2000.
On 15 February 2000 they lodged a similar application with the head of the Grozny police department. They addressed him again on 10, 13 and 20 April 2000.
On 17 March 2000 the applicant’s husband applied to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента РФ по соблюдению прав и свобод человека в Чеченской Республике). He described briefly the circumstances of his son’s detention and listed the authorities and detention centres which he and his relatives had visited by that date. He re-submitted his application on 12 May and 26 July 2000 respectively.
On 28 March 2000 the applicant’s husband wrote to the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor’s office”), seeking their assistance in establishing his son’s whereabouts and securing his release.
On 3 April 2000 the applicant’s daughter wrote to the military prosecutor of the Chechen Republic (военный прокурор Чеченской Республики) asking for assistance in finding her brother. The family re-submitted their request on 15 November 2001.
On 15 May 2000 the applicant’s daughter received a letter from the military commander of the Oktyabrskiy District of Grozny, which stated that her brother had not been listed among those detained in the district.
On 16 May 2000 the Chief Military Prosecutor’s Office (Главная военная прокуратура) forwarded a request lodged on the applicant’s behalf by the Memorial Human Rights Centre to the military prosecutor’s office of the Northern Caucasus Military Circuit (военная прокуратура Северо-Кавказского военного округа). The latter transferred this request to the republican prosecutor’s office on 13 June 2000.
By letter of 31 May 2000 the republican prosecutor’s office instructed the Chechen Department of the Interior to organise a search for a number of missing persons listed in the applications lodged by relatives of those missing with the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic.
On 5 July 2000 the applicant’s husband wrote to the military prosecutor’s office of the Northern Caucasus Military Circuit, asking for information concerning his son’s disappearance.
On 19 July 2000 the applicant’s husband applied to the republican prosecutor’s office, stating the circumstances of Yakub Iznaurov’s detention, listing official bodies to which he had applied and asking for assistance in finding his son. The applicant’s husband sent another letter to the republican prosecutor’s office on 14 November 2001.
Following the applicant’s request, on 3 October 2000 the military commander of the Oktyabrskiy District of Grozny issued her with a certificate confirming that between 20 September 1999 and 5 February 2000 she and her son, Yakub Iznaurov, had remained in Grozny.
On 22 October 2000 the applicant’s husband requested assistance in finding his son from the Office of the Mayor of Grozny.
On 21 December 2000 the applicant wrote to the Grozny prosecutor’s office (прокуратура г. Грозного), seeking to have a criminal investigation into her son’s kidnapping opened. A similar request was submitted by another member of the applicant’s family on 5 January 2001.
On 31 January 2001 the applicant’s family addressed the military commander of Grozny and asked for help in finding Yakub Iznaurov.
In February 2001 Yakub Iznaurov’s wife applied to a court in Ingushetia, seeking to have her husband declared a missing person, which would enable her, their five children and Yakub Iznaurov’s elderly parents to obtain social benefits in connection with the loss of the breadwinner. On 17 April 2001 the Nazran District Court granted this request. The court heard two witnesses and examined copies of the family’s requests to various authorities and the latter’s replies concerning Yakub Iznaurov’s whereabouts. On the basis of that evidence, the court established that there had been no news of Yakub Iznaurov for a year and declared him a missing person.
On 9 February 2001 the Grozny prosecutor’s office provided the applicant’s husband with a notice which stated that their office had opened a criminal investigation into Yakub Iznaurov’s disappearance. The notice contained no other information.
In a letter of 21 May 2001 addressed to Southern Federal Circuit Department of the Prosecutor General’s Office (Управление Генеральной прокуратуры РФ в Южном федеральном округе) the applicant’s husband enquired about the developments in locating Yakub Iznaurov.
On 16 July 2001 the republican prosecutor’s office forwarded the letter to the Grozny prosecutor’s office, ordering the latter to conduct a check and decide whether criminal proceedings should be instituted under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping).
On 25 July 2001 the applicant requested a military prosecutor to verify whether her son had ever been detained at the Khankala military base. She received no clear reply, and on 15 August 2001 applied again. From a note made by an official on her application it follows that she was “given explanations” on that date.
In August 2001 the office of the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic wrote to the republican prosecutor’s office and asked them to reply to their letter of 26 July 2000 concerning the applicant’s situation.
On 28 August 2001 the applicant lodged a complaint with the military prosecutor’s office of military unit no. 20102 based in Khankala.
On 26 September 2001 the republican prosecutor’s office replied to the applicant, stating that her son’s whereabouts had not been established. Yakub Iznaurov had not been listed among those kept in the pre-trial detention centres in the Stavropol Region, and the Ministry of the Interior continued searching for him. The letter contained no reference to a criminal investigation file.
On 26 November 2001 the Administration of Chechnya informed the applicant that her son was being searched for as a “missing (forcibly detained) person”.
On 6 December 2001 the applicant’s husband wrote to the member of the State Duma elected in respect of Chechnya and asked his assistance in finding his son. He sent another letter on 14 January 2001. In February 2002 the latter replied that this letter had been forwarded to the Prosecutor General’s Office.
The Memorial Human Rights Centre applied on 29 December 2001 to the Grozny prosecutor’s office on the applicant’s behalf. They referred to investigation file no. 15029 opened in relation to Yakub Iznaurov’s disappearance by the Grozny prosecutor’s office and asked for details on the investigation.
On 30 December 2001 an investigator, apparently of the Grozny Prosecutor’s Office, issued the following notice about the progress of the investigation: “Criminal case no. 15029 opened on 22 March 2001 by the first deputy of the Grozny prosecutor into the kidnapping of Mr. Iznaurov Ya. A. Questioned as witnesses: Mrs Shakhtemirova, Mrs Musayeva. Granted the status of victim: the sister of the kidnapped, Mrs Iznaurova R. The investigation was suspended on 22 May 2001 by an investigator of the Grozny Prosecutor’s Office under Article 195 part 3 of the Russian Code of Criminal Procedure”.
The Southern Federal Circuit Department of the General Prosecutor’s Office forwarded the applicant’s complaint about “the unfounded suspension of the investigation in criminal case no. 15029” to the republican prosecutor’s office on 14 February 2002.
On 6 March 2002 an investigator of the Grozny prosecutor’s office issued a notice which stated that “on 22 March 2001 the Grozny prosecutor’s office opened criminal case file no. 15029 under Article 126 (2) of the Criminal Code into the kidnapping of Yakub Alamatovich Iznaurov on 5 February 2000. The whereabouts of Iznaurov Ya.A. have not been established”. The notice contained no further details about the investigation.
On 26 March 2002 the Department of the Prosecutor General’s Office for the Northern Caucasus informed the applicant that the criminal case concerning her son’s kidnapping had been suspended on 22 April 2001 due to a failure to identify the alleged perpetrators. There were no reasons to review that decision. It was not possible to establish which “power structures” (силовые структуры) had taken away Yakub Iznaurov during a special operation in Grozny on 5 February 2000.
Following the request of the applicant’s husband, on 29 May 2002 the republican prosecutor’s office asked for information about the criminal case from the Grozny prosecutor’s office.
On 6 November 2002 the applicant’s husband requested assistance from the department charged with searching for missing persons in the Chechnya Administration. On 21 November 2002 his letter was forwarded to the prosecutor’s office, the Chechen Department of the Interior and the Oktyabrskiy District Office of the Interior.
On 25 November 2002 the republican prosecutor’s office again informed the applicant’s husband that the decision to suspend the investigation in the criminal case had been well-founded, because it had been impossible to establish which “power structures” had taken away his son during a special operation. The letter stated that measures aimed at establishing Yakub Iznaurov’s whereabouts were being taken and that he would be informed of any results.
The division of criminal investigations of the Chechen Department of the Interior replied to the applicant on 4 December 2002 that they had been searching for her son since 3 October 2000 and that she would be informed of any results.
In reply to the applicant’s query, on 9 December 2002 the Oktyabrskiy ROVD confirmed that they had opened a search file in respect of Yakub Iznaurov.
In March 2003 the applicant’s husband again wrote to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic. That latter forwarded his letters to the republican prosecutor’s office, to the military prosecutor of the Chechen Republic, to the Chechen Department of the Interior.
On 27 March 2003 the applicant’s husband complained to the Chairman of the State Duma that he had by that time applied to every possible authority in Russia and in Chechnya which could help him establish his son’s whereabouts, but despite these efforts and numerous witness-statements to the effect that the St. Petersburg OMON had taken away his son on 5 February 2000, there were no results.
On 7 April 2003 the department of criminal investigations of the Chechen Department of the Interior replied to the Special Representative of the Russian President for Rights and Freedoms in the Chechen Republic, with a copy to the applicant, that on 12 November 2000 the Grozny prosecutor’s office had opened criminal case no. 12255 into the abduction of the applicant’s son. The search for Yakub Iznaurov was also in progress.
In a letter of 21 April 2003 the republican prosecutor’s office informed the applicant that on 19 March 2003 the investigation in case no. 12255 had been suspended. On 21 April 2003 the decision to suspend had been quashed by the republican prosecutor’s office and the case had been remitted for further investigation with instructions to take more active steps.
On 28 April 2003 the applicant’s husband was granted the status of victim in criminal case no. 15025.
On 1 December 2003 the Memorial Human Rights Centre requested on the applicant’s behalf an update on the investigation from the Prosecutor General’s Office. On 8 December 2003 the applicant also wrote to the Prosecutor General’s Office.
The republican prosecutor’s office replied on 11 February 2004 to the Memorial Human Rights Centre that a criminal investigation into Yakub Iznaurov’s abduction was pending.
According to the applicant, in their replies to her queries the authorities had referred to three different registration numbers of the file of the investigation into her son’s abduction, and namely to nos. 12255, 15025 and 15029, as well as to two different dates on which the investigation had allegedly been commenced, namely 12 November 2000 or 22 March 2001.
4. Official investigation
According to the Government, the applicant or any other relatives of Yakub Iznaurov had not applied to the law-enforcement bodies until 8 June 2000, when the applicant’s husband lodged a complaint about his son’s abduction with the Oktyabrskiy District Office of the Interior (“the Oktyabrskiy ROVD”). The latter had carried out an inquiry upon this complaint and on 30 September 2000 had refused to institute criminal proceedings in the absence of evidence of a crime, as it had not been established during the inquiry that Yakub Iznaurov had been kidnapped.
On 3 October 2000 the Oktyabrskiy ROVD commenced a search for Yakub Iznaurov and opened search file (розыскное дело) no. 030/00.
Following this decision, on 9 November 2000 the Ministry of the Interior placed Yakub Iznaurov on the federal list of missing persons. The applicant was informed of this step on 4 January 2001.
In the Government’s submission, the Grozny prosecutor’s office had carried out an inquiry in connection with the information submitted by the Memorial Human Rights Centre on the involvement of the personnel of the St. Petersburg OMON in the kidnapping of the applicant’s son. The inquiry had established that until February 2000 the vicinity of the applicant’s domicile had been out of the federal forces’ control and therefore they had been unable to conduct any special operations there at the material time. Accordingly, on 12 October 2000 it had been decided to dispense with criminal proceedings, as there had been no evidence of a crime.
According to the Government, on 22 February 2000 the Grozny prosecutor’s office had quashed the decision of 12 October 2000 and instituted criminal proceedings in connection with Yakub Iznaurov’s abduction under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping). The case file had been assigned the number 15025.
The Government also submitted that on 22 February 2001 the Grozny prosecutor’s office had set aside the decision of 30 September 2000 and on 22 March 2001 had instituted criminal proceedings in connection with Yakub Iznaurov’s kidnapping under Article 126 (2) of the Russian Criminal Code. The case file had been assigned the number 15029. On 16 April 2001 cases nos. 15025 and 15029 had been joined and given the number 15025.
According to the Government, the investigation had been suspended on 22 April 2001, 28 May 2003, 4 July 2004 and 21 March 2005 and resumed on 28 April 2003, 2 June 2004, 20 January 2005 and 23 June 2005 respectively, but had to date failed to identify the alleged perpetrators. The investigation was being carried out by the prosecutor’s office of the Oktyabrskiy District of Grozny and was being supervised by the Prosecutor General’s Office.
The Government submitted that the investigating authorities had taken a number of measures during the investigation. In particular, on 13 April 2001 the investigator in charge had instructed the head of the Oktyabrskiy VOVD to take measures aiming at searching for, and establishing the whereabouts of the applicant’s son. The applicant and her two neighbours had been questioned as witnesses on 22 April 2001. The applicant had been questioned as a witness on numerous occasions and she had received detailed replies to all her queries. The applicant’s daughter, Yakub Iznaurov’s sister, had been declared a victim of a crime and questioned on 22 April 2001 and then again on 2 February 2005. The applicant’s husband, Yakub Iznaurov’s father, had been granted the status of victim and interrogated as a witness on 28 April 2003. The investigating authorities had also questioned five other witnesses, including Yakub Iznaurov’s other relatives and acquaintances on 29 April 2003 and between 7 and 14 June 2004. Subsequently the authorities had questioned five more witnesses. All the witnesses had confirmed the circumstances of Yakub Iznaurov’s detention and stated that hey had no information as to his whereabouts.
Lastly, the Government stated that on 21 January 2005 the prosecutor of the Oktyabrskiy District of Grozny had organised an investigative group for investigating the kidnapping of the applicant’s son and on 23 January 2005 the investigator in charge had inspected the scene of the incident. The investigating authorities had also sent a number of queries to various State bodies on 13 April 2001, 12 May 2003, 23 and 30 January 2005 and 25 June 2005 and had taken other investigative measures. The Government did not specify what those measures had been. In the Government’s submission, the investigation had not established that the representatives of the federal power structures had participated in Yakub Iznaurov’s kidnapping. Furthermore, the personnel of the St. Petersburg OMON had not conducted any special operations in the vicinity of the applicant’s domicile on 5 February 2000.
Despite specific requests made by the Court on two occasions, the Government did not submit a copy of any of the documents to which they referred. 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 of 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 to transmit it to others”.
B. Relevant domestic law
Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation.
Article 161 of the new Code establishes that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator, but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.
COMPLAINTS
1. The applicant complained of a violation of Article 2 of the Convention in respect of her son, Yakub Iznaurov. She submitted that the circumstances of her son’s detention and the absence of any news from him since 5 February 2000 gave rise to a strong presumption that he had been killed by representatives of the federal forces. She further claimed that there had been a violation of Article 2 in its procedural aspect since no effective investigation had been carried out into the circumstances of her son’s detention and disappearance.
2. The applicant submitted that she had reasons to believe that Yakub Iznaurov had been subjected to treatment contrary to Article 3 of the Convention following his arrest and that there had been no effective investigation into the matter.
3. The applicant also complained that in connection with the detention and forced disappearance of her son she had suffered severe mental distress and anguish amounting to ill-treatment falling within the scope of Article 3 of the Convention.
4. The applicant claimed that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of her son.
5. The applicant alleged that there were no effective remedies in respect of the alleged violations of Articles 2, 3 and 5, in breach of Article 13 of the Convention.
6. Lastly, in her observations of 20 June 2005 the applicant complained that the Government’s refusal to submit a copy of the file of the investigation into her son’s disappearance was in breach of the State’s obligations under Articles 34 and 38 § 1 of the Convention.
THE LAW
The applicant raised complaints set out above relying on Articles 2, 3, 5 and 13 of the Convention which, in so far as relevant, read as follows:
Article 2
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Exhaustion of domestic remedies
1. Submissions by the parties
The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the abduction of the applicant’s son had not yet been completed. They further argued that it had been open to the applicant to file court complaints about the allegedly unlawful detention of her son or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities; however, she had not availed herself of any such remedy. The Government also enclosed a number of letters from various higher courts in Russia, stating that the applicant had never lodged complaints regarding her son’s detention or the authorities’ inactivity with the respective courts.
The applicant disputed the Government’s objection. She claimed that the fact that the investigation into the circumstances of her son’s disappearance was still pending cast doubt upon its effectiveness rather than indicating that her complaints were premature. The applicant also argued that the Government had failed to demonstrate that a court complaint against the actions or omissions of the investigating authorities would have been an effective remedy in her situation. She stated that this remedy was incapable of leading to the identification and punishment of those responsible and that under national law she could only make use of it after those responsible for the crime had been identified in course of criminal proceedings. The applicant also referred to the case of Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, judgment of 24 February 2005, §§ 119-121) stating that she was not obliged to pursue any civil remedy as this would only lead to an award of damages and not to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints under Article 2 of the Convention.
2. The Court’s assessment
The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings.
The Court therefore decides to join this objection to the merits.
B. As to the merits of the application
1. The Government
The Government contended that the federal forces had not regained control over the Oktyabrskiy District of Grozny in which the applicant and her family lived until the middle of February 2000, and therefore had been unable to conduct any operations there on 5 February 2000. They particularly stressed that the St. Petersburg OMON had not participated in “a passport check in the Zabolotny Lane on 5 February 2000”. The Government also stated that the investigation had not obtained any evidence to the effect that Yakub Iznaurov was dead, or that representatives of the federal power structures had been involved in his abduction or alleged killing. They argued therefore that there were no grounds to claim that Yakub Iznaurov’s right to life secured by Article 2 of the Convention had been breached. The Government further claimed that the investigation into the disappearance of the applicant’s son met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify those responsible.
They argued that the investigation had obtained no evidence that the applicant or her son had been subjected to treatment prohibited by Article 3 of the Convention.
In the Government’s submission, there was no evidence to confirm that the applicant’s son had been detained in breach of the guarantees set out in Article 5 of the Convention. Yakub Iznaurov was not listed among the persons being kept in detention centres, and there was no information that any decision ordering his remand in custody had ever been taken in his respect.
The Government also contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention, and the Russian authorities had not prevented her from using them. They submitted that the applicant had received reasoned replies to all her requests made in the context of the investigation.
2. The applicant
The applicant disagreed with the Government and maintained her complaints. She argued that it was beyond reasonable doubt that Yakub Iznaurov had been detained by representatives of the federal forces during a special operation, this fact being confirmed by numerous eyewitness statements, NGO reports and mass media publications which she had previously submitted to the Court. The applicant contended, in particular, that the Oktyabrskiy District of Grozny, in which her house was situated, had been under the control of the federal forces at the material time, that on 4 February 2000 the Russian soldiers had warned the residents of the Oktyabrskiy District about the “sweeping” operation of the next day, that the men who had detained Yukub Iznaurov and three other residents on 5 February 2000 had arrived in a large group in several military vehicles and armoured personnel carriers in the daylight hours, and that those men had been under command of an officer in the rank of colonel.
The applicant further referred to the case of Musayev and others v. Russia ((dec.), nos. 57941/00, 58699/00 and 60403/00, 3 December 2005) in which the Government had acknowledged that on 5 February 2000 a special operation had been carried out by the federal forces in the vicinity of the village of Novyye Aldy. She pointed out in this connection, with reference to a map of the area which she submitted, that Novyye Aldy bordered with the Oktyabrskiy District, where her son had been detained, and argued that the existing evidence strongly indicated that the operations in Novyye Aldy and the Oktyabrskiy District had been connected, and that they had been conducted, at least partially, by the same forces of the St. Petersburg OMON. The applicant thus argued that following his arrest, her son had been under the control of State agents.
The applicant stressed that Yakub Iznaurov had been apprehended in life-endangering circumstances, given that in 2000 – 2001 it had been a widespread practice of forced disappearances, extrajudicial executions, tortures and ill-treatment of detainees in Chechnya by representatives of the federal forces. She contended therefore, relying on Article 2 of the Convention, that the fact that her son had remained missing since 5 February 2000 proved that he had been killed.
The applicant further argued that the investigation in the present case could hardly be regarded as effective, according to the Convention standard. She disputed the Government’s assertion that she or her relatives had not notified the authorities of Yukub Iznaurov’s detention until 8 June 2000. The applicant claimed that she had immediately notified the authorities of her son’s detention and enclosed a copy of her complaint to the military commander’s office of the Oktyabrskiy District dated 7 February 2000. She pointed out that despite her efforts the investigation had not been commenced until more than a year after Yakub Iznaurov’s detention and disappearance. In this respect she also referred to a discrepancy between the Government’s statement to the effect that the investigation had commenced on 22 February 2001, and the domestic authorities’ replies to her complaints which had mentioned 22 March 2001 as the date on which the investigation had been opened. The applicant further contended that the investigation had been pending for over five years but had not brought any tangible results so far, having been repeatedly suspended and reopened. Moreover, the investigating authorities had failed to undertake a number of essential actions, namely to recognise the applicant as a victim in the case, to inspect the scene of the incident, to question witnesses, to identify the officer in command of the operation of 5 February 2000 and organise a confrontation between him and witnesses, to identify military personnel participating in that operation, to examine the custody records at the Khankala military base. The authorities had also failed to inform the applicant about the progress of the investigation or of the investigative measures that had been taken.
The applicant further insisted that during and after his apprehension Yakub Iznaurov had been subjected to treatment contrary to Article 3 of the Convention and that the authorities had not conduct a thorough investigation into the matter.
The applicant also relied on the medical documents submitted by her which certified that she had undergone outpatient and inpatient treatment for a number of chronic diseases in 2001 – 2003. She maintained in this respect that her son’s brutal detention in front of her eyes, his disappearance and the lack of effective investigation had caused her health to deteriorate dramatically. The applicant thus argued that she had endured severe mental suffering falling within the scope of Article 3 of the Convention on account of her son’s disappearance and in view of the fact that her attempts to find Yakub Iznaurov and to have his disappearance investigated had been paid scant attention by the State authorities.
The applicant claimed that her son’s detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.
The applicant also relied on Article 13 of the Convention, alleging that in her case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for several years without any progress and that all her applications to public bodies had remained unanswered or had only produced standard replies.
3. The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the present application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits of the case.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy