FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32382/05
by Lina NASIPOVA and Malika KHAMZATOVA
against Russia
The European Court of Human Rights (First Section), sitting on 2 September 2010 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 7 September 2005,
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, Ms Lina Nasipova and Ms Malika Khamzatova, are Russian nationals who were born in 1955 and 1957 respectively. They live in the village of Zumsoy (also spelled as Zamsoy and Dzumsoy), in the Itum-Kali (also spelled as Itum-Kale) district of Chechnya. The first applicant is the sister of Shirvani (also known as Shakhran or Shakharan) Nasipov, who was born in 1956. The second applicant is the wife of Vakha Mukhayev, who was born in 1955, and the mother of Atabi Mukhayev (also spelled as Apti Vakhayev), who was born in 1988. They are represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. Disappearance of Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev
(a) The applicants' account
(i) The events of 14-16 January 2005
(a) Apprehension of Shirvani Nasipov and subsequent events
The two applicant families lived in the village of Zumsoy, Chechnya. The village was located high in the mountains of the Northern Caucasus and was barely accessible by regular means of transportation. There were no streets in the village; the households were situated from 10 to 500 metres away from each other, and there were gardens and small grazing areas for the cattle between the houses. Each house was located on a hill and was visible from a number of other houses. At the material time troops of the Russian military forces were stationed on the hills in the vicinity of Zumsoy and the village was marked on the military maps.
On 14 January 2005 a group of armed Russian military servicemen arrived at the village by helicopter to conduct a “sweeping-up” operation. The servicemen were wearing masks and camouflage uniforms.
In the evening of 14 January 2005 the first applicant's brother, Shirvani Nasipov, was returning home from a neighbour's house to herd his cattle. The second applicant and other residents of the village saw him being apprehended by Russian military servicemen who were conducting the above-mentioned operation. It appears that he was taken to the nearby hill where the Russian military forces had been stationed. He has not been seen since.
According to the first applicant, her property was destroyed during the events of 14-16 January 2005. However, she did not submit any details pertaining to this part of her complaint.
(b) Apprehension of Vakha and Atabi Mukhayev and subsequent events
On 14 January 2005 the second applicant and her husband Vakha Mukhayev, her son Atabi Mukhayev and four other children were at home in Zumsoy. In the evening of 14 January 2005 a missile hit the second applicant's yard. The Mukhayev family left the house and ran to their neighbours, the B. family, whose house was about 500 metres away. Other residents of the village from the neighbouring houses, including Mr Ib. and Mrs Sh., also ran to hide in the house of the B. family.
In the evening of 14 January 2005 the second applicant returned to her house to herd the cattle. She found that her family possessions had been broken or looted and that her family members' identity documents, including five passports and two birth certificates, had been taken away. Next to the yard the second applicant saw Russian military servicemen in camouflage uniforms carrying away household items from her house. She asked them whether she could pass by to herd the cattle. The servicemen did not answer and pointed their guns at her. The second applicant felt afraid and rushed back to her neighbours' house. On her way there she witnessed the apprehension of Shirvani Nasipov. The second applicant and her family spent the night at their neighbours' house.
At about 11 a.m. on 15 January 2005 a group of approximately twenty‑five Russian servicemen in camouflage uniforms arrived at the house of the B. family. They neither introduced themselves nor produced any documents. The servicemen spoke unaccented Russian and swore obscenely. About ten of them went inside while fifteen others remained in the yard. The officers in the house ordered everyone to go outside and conducted a search of the house.
The soldiers in the yard ordered the second applicant's husband Vakha Mukhayev, her son Atabi Mukhayev and her neighbour Mr Ib. to leave with them. The soldiers told the second applicant that they would release her relatives later in the evening; they refused to tell her where they were taking her husband and son.
The second applicant and her daughter saw from the neighbours' yard that Vakha and Atabi Mukhayev were taken to a helicopter, which took off shortly afterwards.
The applicants have had no news of Shirvani Nasipov, Vakha Mukhayev or Atabi Mukhayev since 16 January 2005.
(ii) Events of 29 January - 2 February 2005 and subsequent developments
Between 29 January and 2 February 2005 the Russian military forces conducted another sweeping-up operation in the village of Zumsoy. During the operation the servicemen took a number of family possessions from the second applicant's house, including money, a TV set, a video-cassette player, jewellery, clothing and linen. They also killed some of the second applicants' poultry and two horses.
On 4 February 2005 the human rights NGO Memorial published an article entitled “Zumsoy: the residents are forced to leave their native village” which provided details of the events of 14-16 January 2005 and described the abduction of the applicants' relatives.
According to the applicants, shortly after the events of 14-16 January 2005, the head of the Zumsoy administration, Mr A.Ya., found a hand‑written report prepared by private V.Kh., from special intelligence unit no. 621RGS p N (“621РГС п Н”) under the command of captain A. The report was found at the place where the Russian military servicemen had been stationed during the special operation.
On an unspecified date in 2005 Mr A.Ya. forwarded a photocopy of the report to the military prosecutor's office in the village of Borzoy, Chechnya, and to the Shatoy district prosecutor's office in Chechnya. No reply was received from the authorities.
On 31 January and 23 March 2005 a local newspaper “Lamanan az” (“Ламанан аз”) published two articles describing the events of 14 January 2005 and stating that the applicants' relatives had disappeared.
On 1 September 2005 a Russian newspaper “Novaya Gazeta” (“Новая газета”) published an article by journalist Anna Politkovskaya concerning a trial against a military officer accused of killing Chechen civilians (“Дело Ульмана живет, но его снова будут судить”) which also mentioned the events in Zumsoy.
(b) Information submitted by the Government
The Government challenged the facts as presented by the applicants and submitted the following. On 14-16 January 2005 in the vicinity of the ruins of fortress Muzhiar, situated next to the settlement of Zumsoy in the Itum‑Kali district of Chechnya, troops of the Russian federal forces conducted special operations aimed at establishing the whereabouts of members of illegal armed groups suspected of murders, attempts to murder police officers and military servicemen as well as illegal sales and use of firearms, and their apprehension and prosecution
In January 2005 intelligence established that members of an illegal armed group headed by Mr D. U. were hiding in one of the destroyed buildings next to Zumsoy (also known as the Muzhiar ruins), where they had built storage units for food and medicines, watch towers and a base station for military actions.
According to the intelligence, on 14 January 2005 members of illegal armed groups had arranged a meeting at the base to discuss their plans for terrorist attacks.
The Government further submitted that on an unspecified date the command of the federal forces decided to open fire on the base from helicopters. The target buildings were situated 2-3 km away from the houses of village residents. Bearing in mind the weapons used by the helicopters (light missiles and machine guns), fire was opened at selected targets and within a limited range.
On 14 January 2005 the airborne troops landed in the vicinity of Muzhiar. Following an inspection of the area, it was established that illegal armed groups had been staying there. In particular, the following items were found: visual surveillance posts, recreation areas, storage facilities for medicines, Vakkhabi literature, food and self-made explosive devices and their parts. The airborne troops continued their pursuit of members of illegal armed groups.
About 200 metres away from the ruins, in a gorge, the federal forces found the body of Mr S.V., an assistant of the leader of illegal armed groups, Mr D.U., with a machine gun and ammunition next to it. Numerous footprints of people and horses led to the forest, where the rest of the members of the illegal armed groups had gone into hiding.
On 15-16 January 2005 the troops continued the search for members of illegal armed groups in the woodland and mountainous areas. The servicemen did not enter the houses in Zumsoy.
At about 3 p.m. on 16 January 2005 the special operation ended and the servicemen were taken back to their stations.
The troops did not detain anybody, either civilians or members of illegal armed groups, in the context of the special operation conducted from 14 to 16 January 2005.
On an unspecified date the Shatoy inter-district prosecutor's office conducted an inquiry following the second applicant's complaint about the alleged abduction of her relatives and destruction of her property by federal servicemen during the special operation of 14-16 January 2005 in Zumsoy.
On 2 February 2005 the military prosecutor's office of the United Group Alignment (“the UGA”) received the results of the inquiry conducted by the Shatoy inter-district prosecutor's office and conducted their own inquiry. As a result, the military prosecutor's office established that Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev were active members of illegal armed groups who must have absconded from the authorities; that the second applicant's allegations concerning the destruction of property, stealing and breaking of various household items by federal servicemen during the special operation of 14-16 January 2005 were unsubstantiated and that the air strikes carried out during the special operation had been taken in accordance with the federal law of 1998 “On the suppression of terrorism”.
The Government submitted that during the inquiry the authorities had questioned the servicemen who had participated in the special operation in the vicinity of the Muzhiar ruins. Statements provided by the officers had served as the ground for the refusal to open a criminal investigation into the events. Further, it was established that the applicants' allegations about the shelling of Zumsoy had not been confirmed.
The Government further submitted that as a result of an inquiry it had been established that no special operations had been conducted in Zumsoy between 29 January and 2 February 2005.
2. The search for the applicants' relatives and the investigation
(a) Information submitted by the applicants
The applicants' correspondence with the authorities concerning the events of 14 - 16 January and 29 January - 2 February 2005
On 17 and 18 January 2005 the second applicant complained about her relatives' abduction to a number of law enforcement agencies in Itum-Kali, including the Itum-Kali district military commander's office (“the district military commander's office”) and the Itum-Kali district department of the interior (“the Itum-Kali ROVD”).
On 7 February 2005 the applicants' representatives complained to the Prosecutor General about the events in Zumsoy. The letter provided a detailed description of the property items destroyed or taken away by the abductors and stated that in the evening of 14 January 2005 a group of armed men had taken away four village residents, Shirvani Nasipov, Vakha Mukahyev, Atabi Mukhayev and Mr Ib., by helicopter and that in connection with the abduction the village residents had complained to the military prosecutor's office. The letter requested the Prosecutor General to inform the applicants whether any criminal charges had been brought against the abducted men, what the reasons for their apprehension had been and whether the authorities had initiated a criminal investigation in connection with the seizure and destruction of the applicants' property.
On 10 February 2005 the applicants' representatives wrote to the Chief Military Prosecutor. They stated that on 14 February 2005 the Russian military forces had searched the second applicant's house and taken away her family members' identity documents, jewellery and money; that in the evening of 14 January 2005 a group of armed men had apprehended Shirvani Nasipov and in the morning of 15 January 2005 the same men had apprehended Vakha and Atabi Mukhayev; that the abductors had left with the applicants' relatives by helicopter and that the applicants had complained about the abduction to the district military prosecutor's office. In their letter the applicants' representatives asked whether the authorities had instituted an investigation into the abduction of Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev and the theft of the applicants' property. They also requested information concerning the reasons for the apprehension of Vakha Mukhayev, Atabi Mukhayev and Shirvani Nasipov and any pending criminal charges against the abducted men.
On 22 March 2005 the Itum-Kali ROVD replied to a request from the constitutional rights committee of the Chechen Government. The letter, which was forwarded to the applicants' representatives, stated that the Itum‑Kali ROVD had examined the second applicant's complaint about the abduction of Vakha Mukhayev, Atabi Mukhayev and Shirvani Nasipov by armed men in camouflage uniforms. According to the letter, from 13 to 17 January 2005 the Russian federal forces and representatives of the district military commander's office had conducted a special operation in Zumsoy. Upon receiving, on 18 January 2005, the second applicant's complaint about her relatives' abduction, the Itum-Kali ROVD had requested the district military commander's office to provide them with military vehicles to conduct the preliminary investigation in the village. The military commander's office had refused to provide the vehicles. On 19 January 2005 the file with the applicants' complaints had been forwarded to the Shatoy district prosecutor's office of Chechnya for examination. The latter, on an unspecified date, had forwarded the file to the military prosecutor's office of the border-security forces and the forces of the Federal Security Service (the military prosecutor's office and the FSB forces) in the village of Tuskharoy in the Itum-Kali district. That prosecutor's office had established that Vakha Mukhayev, Atabi Mukhayev and Shirvani Nasipov had been abducted by Russian military servicemen and on 26 January 2005 the office had forwarded this information to the military prosecutor's office of the UGA, which was investigating the crime.
On 23 April 2005 the military prosecutor's office of the UGA replied to the applicants' representatives. The letter stated that the office had conducted an inquiry into the allegations of the apprehension of the applicants' relatives by Russian military servicemen and it had been established that the Russian military forces had not been involved in the disappearance of Vakha Mukhayev, Atabi Mukhayev and Shirvani Nasipov. The letter stated that Vakha Mukhayev and Atabi Mukhayev had been active members of illegal armed groups and suggested that they had absconded from the authorities.
On 26 April 2005 the second applicant requested the district prosecutor's office to inform her whether they had instituted a criminal investigation into the abduction of her husband and son. She also asked to be granted victim status in the criminal case.
On 23 May 2005 the applicants' representatives complained to the Prosecutor General. They pointed out that the response of the military prosecutor's office of the UGA dated 23 April 2005 had failed to provide any meaningful information. The applicants' representatives requested the Prosecutor General to inform them whether there were any criminal proceedings pending against the three abducted men. They also requested to be informed whether any investigation was being conducted into the circumstances of the apprehension of Vakha Mukhayev, Atabi Mukhayev and Shirvani Nasipov.
On 29 July 2005 the military prosecutor's office of the UGA sent a letter informing the applicants' representatives that they had conducted an inquiry into the allegations of the abduction and it had been established that Russian military forces had not been involved in the disappearance of the applicants' relatives and that on 15 April 2005 the military prosecutor's office of the UGA had refused to institute criminal proceedings in connection with the special operation conducted between 14 and 16 January 2005 pursuant to Article 24 § 1 of the Code of Criminal Procedure (owing to the absence of proof of a crime). According to the applicants, they did not receive this letter and they did not appeal against this decision.
On 7 September 2005 the applicants' representatives lodged a Rule 39 request with the Court. The text of their request stated, among others, that on 5 September 2005 they had received the letter of 29 July 2005 from the military prosecutor's office informing them that on 15 April 2005 the prosecutor's office decided not to initiate a criminal investigation into the applicants' complaints.
(b) Information submitted by the Government
According to the Government's submissions on the admissibility and merits of the case, on 15 April 2005 the military prosecutor's office refused to institute a criminal investigation in connection with “the apprehension between 14 and 17 January 2005 by unidentified servicemen of citizens V.M. Mukhayev, A.V. Mukhayev and others in Zumsoy in the Itum-Kali district, Chechnya”. Its decision was based on Article 24 § 1 (2) of the Russian Code of Criminal Procedure (lack of corpus delicti). The applicants were informed about this decision on 29 July 2005 and they did not appeal against it. The Government further referred to the contents of the letter which stated that the military prosecutor's office of the UGA had conducted an inquiry into the applicants' allegations of the abduction and it had been established that Russian military forces had not been involved in the disappearance of Vakha Mukhayev, Atabi Mukhayev and Shirvani Nasipov; that from 14 to 16 January 2005 the Russian military forces had conducted a counter-terrorist operation in the Itum-Kali district and that the servicemen had acted strictly within the framework of the Federal Law “On the suppression of terrorism”; that on 15 April 2005 the military prosecutor's office of the UGA had refused to institute criminal proceedings in connection with the special operation conducted between 14 and 16 January 2005 pursuant to Article 24 § 1 of the Code of Criminal Procedure (owing to the absence of proof of a crime) and that it had been established that the applicants' allegations of theft and looting of their property had been false.
In their additional submissions to the Court the Government stated that the domestic authorities had issued two more refusals to initiate a criminal investigation into the events in Zumsoy. These decisions were taken by domestic law-enforcement authorities on 8 September 2008 and 16 February 2009. They enclosed a copy of the last decision which also refused to initiate a criminal investigation into the applicants' allegations for lack of corpus delicti. The decision, which comprised more than six pages, referred to information received from the military, the statements of three military officers who had participated in the special operation in Zumsoy and a statement by a local resident, Mr M.M. The applicants were informed about this decision. They did not appeal against it.
B. Relevant domestic law
Article 125 of the Code of Criminal Procedure provides as following:
“Article 125. Judicial examination of complaints
1. Decisions of an investigator or prosecutor concerning their refusal to initiate a criminal investigation...or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens' access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions....
...
3. The court examines the lawfulness and the grounds for the impugned decisions or acts ...within five days from the receipt of the complaint...
....
5. As a result of the examination of the complaint the court delivers one of the following decisions:
1) Declaring the decisions, acts or omissions of the official as unlawful or unsubstantiated and obliging the official to eliminate the defects;
2) Not allowing the applicant's complaint...”
COMPLAINTS
1. The applicants submit that the apprehension of their relatives Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev and the absence of any news from them to date give rise to a strong presumption that they were killed by the Russian servicemen, in violation of Article 2 of the Convention. They further submit that the authorities failed to conduct a timely and thorough investigation into the disappearance of their relatives, in violation of the procedural obligation under Article 2 of the Convention. They also complain under Article 2 that Russia has not complied with its positive obligation to protect the lives of Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev.
2. The applicants complain under Article 3 of the Convention that it is highly probable that Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev were ill-treated at the hands of the Russian servicemen. They further complain under the same head that the domestic authorities have failed to investigate the alleged ill-treatment of their relatives in breach of the procedural obligation.
3. The applicants complain under Article 3 of the Convention that the anguish and distress that they have suffered because of their relatives' disappearance and the lack of an adequate response on the part of the authorities amounts to treatment in breach of Article 3 of the Convention.
4. The applicants complain that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, were violated in respect of Shirvani Nasipov, Vakha Mukhayev and Atabi Mukhayev.
5. The second applicant complains under Article 8 of the Convention that the search conducted in her house on 15 January 2005 and the seizure of her family members' identity documents by the Russian servicemen violated her right to respect for private life.
6. The applicants complain under Article 1 of Protocol No. 1 to the Convention of destruction of their property.
7. The applicants complain under Article 13 of the Convention of a lack of effective domestic remedies in respect of the above violations.
THE LAW
ALLEGED VIOLATIONS OF ARTICLES 2, 3, 5, 8 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
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;...”
Article 8
“1. Everyone has the right to respect for his ... family life, his home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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. The Government's preliminary objection as to the exhaustion of domestic remedies
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law....”
A. The parties' submissions
The Government preliminary objection concerning non-exhaustion of domestic remedies
(a) The Government
The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies because the applicants had failed to appeal to the domestic courts against the refusal to initiate criminal proceedings. They referred to Article 125 of the Code of Criminal Procedure, which provides for judicial appeal against decisions of investigating authorities. Referring to the Court's decision in the case of Trubnikov v. Russia (no. 49790/99, 14 October 2003) they pointed out that a domestic court ruling in respect of the refusal to initiate criminal proceedings could have been an effective remedy in the applicants' case, but the applicants had failed to seek one. The Government submitted a copy of the letter of 29 July 2005 which was sent to the applicants' representatives on that date informing them about the refusal to initiate a criminal investigation. They also contended that the applicants could have lodged civil complaints with the courts.
(b) The applicants
The applicants contested that objection. They stated that they had not been informed about the outcome of their complaints to the authorities and that therefore they could not have appealed against the refusal to institute a criminal investigation. In any event, judicial complaints under Article 125 of the Code of Criminal Procedure referred to by the Government would not have been an effective remedy in their case. As for the civil remedies, they would also have been ineffective in the absence of the results of a criminal investigation.
B. The Court's assessment
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996‑VI, and Akdıvar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports 1996-IV). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent authority (see Akdivar and Others, § 71, cited above, and Mogos and Krifka v Germany (dec.), no. 78084/01, 27 March 2003).
The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Akdivar and Others, § 69, cited above, and Aksoy, §§ 53 and 54, cited above).
The Court notes that although a court itself has no competence to institute criminal proceedings, its power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov, cited above); Medvedev v. Russia (dec.), no. 26428/03, 1 June 2006; and Slyusarev v. Russia (dec.), no. 60333/00, 9 November 2006). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution decided not to investigate a claim.
Turning to the circumstances of the present case the Court notes that the events complained of took place at the beginning of January 2005. The applicants, who have been represented by a human rights NGO, lodged a number of complaints with domestic authorities. As it follows from the case file, from 17 January to 23 May 2005 the applicants lodged at least eight complaints with various law-enforcement bodies. In response to their complaints on 15 April 2005 the military prosecutor's office refused to initiate a criminal investigation into the matter. However, the applicants did not appeal against this decision.
In their submissions to the Court the applicants alleged that they had not received any replies from the authorities and that therefore they had been unaware of their refusal to open a criminal case. At the same time, the submission of the applicants' representatives of 7 September 2005 indicates that on 5 September 2005 they had received the letter of 29 July 2005 from the military prosecutor's office informing them about the refusal to initiate a criminal investigation into the applicants' complaints. In addition, the Government furnished the Court with a copy of this letter by which the applicants' representatives had been informed about the refusal to initiate an investigation.
The Court observes that in raising the non-exhaustion plea the Government referred to the Court's case-law, according to which a judicial appeal against a refusal by a prosecutor's office to open an investigation is an effective remedy. Therefore, it was for the applicants to prove that the remedy advanced by the Government was inadequate and ineffective in the particular circumstances of their case or that there existed special circumstances absolving them from this requirement (see Akdivar and Others, cited above, § 68). The applicants failed to provide any explanation for their failure to appeal to a court against the refusal, in spite of the fact that their representatives had been informed about it on 5 September 2005.
The Court further notes that the applicants failed to appeal against similar subsequent decisions issued by the prosecutor's office in September 2008 and February 2009, after the communication of the application by the Court and upon the domestic authorities' own initiative. While the parties disputed whether the applicants had been properly informed about these documents, the Court considers that by that time the relevance of the remedy in question was in any event more than doubtful (see Khatsiyeva and Others v. Russia, no. 5108/02, § 151, 17 January 2008). Expedition is an important element in determining the effectiveness of the criminal investigation, and the applicants' failure to bring an appeal in due time resulted in the fact that no proceedings at all had been pending between 2005 and 2008. Consequently, the applicants failed to exhaust the domestic remedies at the time when the investigation made it clear that they would not initiate any criminal proceedings into the abduction (see, mutatis mutandis, Narin v. Turkey, no. 18907/02, § 50, 15 December 2009). Accordingly, the Court finds that in the present case the reason as to why the applicants had failed to appeal against these two decisions is irrelevant, since in any event this does not alter its conclusion of non-exhaustion of domestic remedies.
Therefore, in the circumstances of this particular case, the Court finds that the applicants failed to exhaust effective domestic remedies in respect of their complaints concerning the events in Zumsoy in January 2005.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy