VAKHAYEVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1758/04
by Rebart Osmayevna VAKHAYEVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 11 September 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,

and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 14 November 2003,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

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 applicants are:

1. Ms Rebart (Rebat) Osmanovna Vakhayeva, born in 1945;

2. Ms Kheda Nasrudinovna Aydamirova, born in 1976;

3. Mr Adam Kazbekovich Vakhayev, born in 1993;

4. Ms Petimat Kazbekovna Vakhayeva, born in 1995;

5. Mr Akhmed Kazbekovich Vakhayev, born in 1997;

6. Mr Akhyad Kazbekovich Vakhayev, born in 1998;

7. Ms Khadizhat Kazbekovna Vakhayeva, born in 2000.

The applicants are Russian nationals and live in Urus-Martan, the Chechen Republic. They are represented before the Court by Mr D. Itslayev, a lawyer practising in Nazran.

The Russian Government (“the Government”) were represented by Mr P. Laptev, former 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.

The applicants are members of one family and are close relatives of Kazbek Vakhayev, born in 1975, who was apprehended by the police and has been missing since 13 August 2000. The first applicant is his mother, the second applicant is his wife and the third to seventh applicants are his children. The applicants live together in their house in Urus-Martan at 5, Nuradilova Street, where Kazbek Vakhayev also lived before his arrest.

Kazbek Vakhayev worked as a furniture maker before his arrest. The applicants submitted that he had never been involved in the armed conflict in Chechnya and had had no connections with the paramilitary.

A. Arrest and detention of Kazbek Vakhayev

1. The applicants’ account

On 1 August 2000 the Urus-Martan Temporary Department of the Interior of the Chechen Republic Урус-Мартановский временный отдел внутренних дел Чеченской республики (“Urus-Martan VOVD”) conducted a sweeping operation in the eastern part of the town. Starting in the early morning military forces cordoned off the eastern sector of the town, and officers of the interior carried out a security raid.

During the raid a van belonging to the Ural police arrived at the Vakhayevs’ house. The whole family was already waiting in the courtyard with their documents ready to be checked. According to the applicants, the servicemen were wearing police uniforms and were armed. Without any introduction or the presentation of a warrant they started searching the house. No attesting witnesses were present and no official records were made about the search. The search did not yield any incriminating evidence.

After the search the servicemen proceeded with the documents check and requested the passports of the adult men who were present, Kazbek Vakhayev and his father, Lecha Vakhayev. They showed their passports, both of which were valid and bore registration stamps confirming their legal address, which was at the place where they were being checked. The servicemen examined the passports and asked who Kazbek Vakhayev was. He answered and then asked whether anything was wrong with his documents. The servicemen told him that the documents were fine, but he was “on the list” and showed him a page from a notepad with some names on it. He was ordered to get in the van. In reply to the first applicant’s question as to where he was being taken one of the policemen said: “They will see. Interrogate him. He will be released in two hours”. Another policeman explained that Kazbek Vakhayev was being taken following the receipt of an anonymous letter.

On the same day officers of the Urus-Martan VOVD arrested several other men from the neighbourhood, among them were G., two brothers Sh. and four brothers M. At the time of their arrests their houses were also searched. All of them were taken to the Urus-Martan VOVD, a temporary police station with a detention facility set up in a former boarding school in the town centre.

On 2 August 2000 the applicants learned that an order to remand Kazbek Vakhayev in custody for ten days had been issued on the grounds that he was a vagrant. Under the applicable legislation this meant a person without any legal address indicated in his passport.

For the next ten days the first and the second applicants visited the police station regularly to enquire about Kazbek Vakhayev and to leave food and clothes for him to be passed to the detention facility. Every day they were told that there was nothing pending against him on the file and that he was about to be released.

Whenever the applicants left a parcel they attached a list of its contents, which would then be signed by Kazbek Vakhayev, and the guard would show them his signature to confirm the receipt. The applicants submit that they recognised his signature every time they left him a parcel. Sometimes he would add a short note and they were able to recognise his handwriting also.

On 11 August 2000 Kazbek Vakhayev was due to be released after his ten days’ detention. His relatives and the families of other detainees whose release was due on the same day came to the police station early in the morning to pick them up. They waited until 5 p.m., when Major S. announced that no one would be released on that day. The applicants then left another parcel for Kazbek Vakhayev, the receipt of which he confirmed as usual. All the detainees’ families, including the applicants, stayed in front of the police station until the start of the curfew and then left.

On 12 August 2000 the applicants and the other families waited outside the police station all day, but no one was released on that day either. In the evening the applicants left another parcel the receipt of which Kazbek Vakhayev confirmed as usual.

On 13 August 2000 the first and the second applicants and their three relatives came to the police station and waited there all day together with the families of the other detainees. At about 5 p.m. they left Kazbek Vakhayev a parcel. However, after an unusually long delay a policeman brought it back and told them that their relative was no longer in the detention facility.

The applicants requested to see the head of the Urus-Martan VOVD, Colonel Sh., and when he came out to meet them outside the police station the first applicant asked him where her son was. Colonel Sh. took their names, went back into the police station and then returned with the passport of Kazbek Vakhayev. He handed the passport to the first applicant and told her he did not know where her son was. When she pressed him for an explanation he replied that he had probably been taken to the “force groups”. According to the applicants, this meant the federal force groups “Zapad” (группировка федеральных сил «Запад») which at the time were located to the south-west of Urus-Martan. When the first applicant protested, saying that the police were in charge of Kazbek Vakhayev and to hand him over without any documents was unheard of, Colonel Sh. replied that he would punish the head of the detention facility for it. The applicants did not manage to obtain any more information on the matter.

On the evening of the same day two brothers Sh. and four brothers M. were found having been left on the Rostov-Baku motorway near the town of Argun in Chechnya. It came to the applicants’ knowledge that all of them had numerous injuries and showed signs of torture. The first applicant also learned that on the night of 11-12 August 2000 they had been transferred from the Urus-Martan VOVD to the Urus-Martan District Department of the Interior (ROVD), a normal police station, and on the night of 12-13 August 2000 they had been taken to the federal force groups “Zapad”. After spending a night there, on 13 August 2000 they were taken to the town of Khankala, then the main federal military base for Chechnya. On the evening of the same day they were driven to the Argun district where they were dropped on the motorway.

On 14 August 2000 the applicants learned that two more detainees, Yusup Satabayev and Ch., had gone missing from the Urus-Martan VOVD at the same time as Kazbek Vakhayev. According to the applicants, Yusup Satabayev had been involved in illegal paramilitary groups and had been in detention since 23 February 2000; from the beginning of August he had been held in the Urus-Martan VOVD. In respect of Ch. they submitted that he had been arrested during the sweeping raid on the Urus-Martan district on 9 August 2000. On 14 August 2000 the relatives of Yusup Satabayev and Ch. had learned of their disappearance from the Urus-Martan VOVD. G. had also gone missing from the VOVD.

On the same day, at about noon, the families of the four missing men met the head of the Urus-Martan VOVD, Colonel Sh., who first told them that all four had been released. He then said that only Kazbek Vakhayev had been released on 11 August 2000, but that the others had been taken to the “force groups”. The first applicant talked to Colonel Sh. afterwards, and eventually he told her that all four men including her son had been taken to “FSB-2” («ФСБ-2»), which formed part of the “force groups”.

2. The Government’s account

The Government submitted that “on 1 August 2000 officers of the Urus-Martan Temporary Department of the Interior of the Chechen Republic under Decree of the President of the Russian Federation of 2 November 1993 no. 815 ‘On Measures for Prevention of Vagrancy and Mendicancy’ apprehended and brought to the said department Y. A. Satabayev, [G.], K.L. Vakhayev and [Ch.]. Subsequently they were released however, their whereabouts [are] still unknown”.

B. The search for Kazbek Vakhayev and the investigation

On 15 August 2000 the first applicant filed a complaint with the Urus-Martan District Prosecutor’s Office concerning the unlawful arrest, detention and disappearance of her son.

On 20 August 2000 the acting prosecutor of the Urus-Martan district replied to the first applicant:

“Further to your application concerning the disappearance of your son, Kazbek Vakhayev, born in 1975, I can inform you that from 1 to 11 August 2000 he was detained in the detention facility of the Urus-Martan VOVD as a vagrant, after which he was released.”

On 22 August 2000 the first and the second applicants learned from informal contacts that on 13 August 2000 four young Chechen men had been executed in the military camp near the village of Goy-Chu of the Urus-Martan district. Apparently the execution had been carried out by servicemen of the Urus-Martan district military commander’s office (Урус-Мартановская районная военная комендатура) and the bodies had been buried in a shallow grave on the military camp’s grounds. When the camp relocated one of the soldiers had told the villagers of Goy-Chu about the grave and had asked them to re-bury the dead. In the place he had indicated villagers exhumed four corpses with bore numerous traces of violence and also found some spent cartridges. They could not identify the bodies but they made a video recording of them. The bodies were re-buried on the same day, 22 August 2000, in the cemetery of the village of Goyskoye. A member of the applicants’ family, Mr U., came to identify the bodies, but he did not recognise Kazbek Vakhayev among them. The applicants submitted a copy of the above video recording to the Court.

On 27 August 2000 the first applicant wrote to the military commander of the Urus-Martan district requesting him to take urgent measures to search for her son.

On 14 September 2000 the applicant filed a written complaint with the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic requesting his assistance in the search for her son.

On 16 September 2000 the first applicant and the mothers of the missing detainees, Yusup Satabayev, G. and Ch. applied to the Prosecutor’s Office of the Chechen Republic complaining about the disappearance of their sons from the detention facility and alleging the use of torture against them.

On 17 September 2000 the Urus-Martan District Prosecutor’s Office informed the applicant that her letter of 20 August 2000 had been forwarded to the Urus-Martan VOVD.

On 18 October 2000 the Urus-Martan District Prosecutor’s Office opened a criminal investigation into the abduction of four men, i.e. Kazbek Vakhayev, Yusup Satabayev, G. and Ch. (criminal case file no. 24048).

On 25 October 2000 the Urus-Martan District Prosecutor’s Office informed the first applicant about the institution of criminal proceedings.

On 31 October 2000 the second applicant was granted victim status in the proceedings.

On 11 November 2000 the first applicant was granted victim status in the proceedings.

The first and second applicants, questioned on unspecified dates, made statements similar to their description of the events submitted to the Court. At the same time, according to the Government, the first applicant stated to the investigating authorities that her son had been detained because he had not had his passport with him because it had been lost. According to the first applicant, she never made such a statement.

On 18 December 2000 the investigation of the criminal case no. 24048 was adjourned.

On 22 January 2001 the Prosecutor’s Office of the Chechen Republic forwarded the first applicant’s letter to the Urus-Martan District Prosecutor’s Office.

On 25 January 2001 the Urus-Martan District Prosecutor’s Office wrote to the first applicant saying that criminal proceedings had been instituted further to her complaints.

In March 2001 the first applicant watched the video recording of the bodies exhumed in Goy-Chu on 22 August 2000 and noted that one of the dead resembled Kazbek Vakhayev and was dressed in similar clothes. She also noted that the body was disfigured by torture, in particular it was covered in bruises, parts of the flesh had been ripped off, and the fingernails had been pulled out. Relatives of the other three missing men, Yusup Satabayev, G. and Ch. also watched the video-tape and, likewise, considered that the other bodies looked like their relatives. Accordingly they all concluded that the four missing men were likely to have been executed on 13 August 2000. They requested the Urus-Martan District Prosecutor’s Office, in person, to order the exhumation and a forensic examination of the bodies buried in Goyskoye.

On 6 June 2001 the Urus-Martan District Prosecutor’s Office informed the first applicant that Kazbek Vakhayev, Yusup Satabayev, G. and Ch., who had been arrested on 1 August 2000, had been released on 14 August 2000 and sent to their places of residence. In this letter the applicant was also informed about the adjournment of the criminal investigation as of 18 December 2000.

On 3 September 2001 the first applicant filed a complaint with the Prosecutor General requesting that the head of the Urus-Martan VOVD, Colonel Sh., and the acting District Prosecutor I. be brought to justice. She also requested that there should be a criminal investigation in relation to the discovery of four unidentified bodies near Goy-Chu.

On 13 October 2001 the Prosecutor’s Office of the Chechen Republic ordered the Urus-Martan District Prosecutor’s Office to submit the investigation file in case no. 24048 for it to be examined.

On 25 February 2002 the first applicant complained to the Prosecutor’s Office of the Chechen Republic that she had received no reply to her previous letters. She requested the resumption of the criminal investigation and that all her previous applications should receive consideration.

On 19 March 2002 the Urus-Martan District Prosecutor’s Office issued the first applicant with a certificate stating that the criminal investigation into the disappearance of her son had been opened on 18 October 2000.

On 14 June 2002 the first applicant wrote to the Human Rights Department of the Chechen Republic requesting their assistance in establishing the whereabouts of Kazbek Vakhayev. On the same day she sent a similar request to the Deputy Prime Minister of the Government of the Chechen Republic.

On 19 March 2003 the first applicant wrote to the Urus-Martan District Prosecutor’s Office asking them to question Colonel Sh.

On 15 July 2003 the Urus-Martan District Prosecutor’s Office lifted the adjournment of the criminal proceedings on the case no. 24048 and resumed the investigation.

On 22 August 2003 the first applicant requested the Urus-Martan District Prosecutor to inform her of the measures taken further to her earlier applications.

On 8 September 2003 the Urus-Martan District Prosecutor’s Office informed the applicant that Colonel Sh. had not been charged with the abduction of her son and that there had been insufficient evidence to bring charges in the case.

On 28 October 2003 the Urus-Martan District Prosecutor’s Office adjourned the investigation in case no. 24048 as “no persons to be charged with the crime could be identified”.

On 15 December 2003 the first applicant requested the Urus-Martan district prosecutor to allow her access to the criminal case file no. 24048.

On 19 December 2003 the acting Urus-Martan district prosecutor informed the applicant that access could not be granted as the case file had been sent to the Prosecutor’s Office of the Chechen Republic.

On 27 January 2004 the first applicant wrote to the head of the Federal Security Service (FSB) of the Urus-Martan district asking whether her son had been suspected of any illegal activities.

On 27 February 2004 the FSB of the Urus-Martan district replied to the first applicant that they had no information concerning Kazbek Vakhayev.

On 2 April 2004 the first applicant requested the Prosecutor’s Office of the Chechen Republic to inform her which prosecutor’s office was in charge of the investigation of case no. 24048 and asked them to inform her of the measures taken. On 19 April 2004 the applicant re-sent the same request to the Prosecutor’s Office of the Chechen Republic and the Urus-Martan District Prosecutor’s Office. On 18 May 2004, having received no reply, she repeated her enquiry once more.

On 21 May 2004 the first applicant requested the Urus-Martan District Prosecutor’s Office to bring criminal charges against Colonel Sh., against the head of the detention facility of the Urus-Martan VOVD and against all the servicemen of that department involved in the arrest of Kazbek Vakhayev, his remand in custody and, possibly, his murder. She further requested that the four unidentified bodies discovered on 22 August 2000 in Goy-Chu and re-buried in Goyskoye be exhumed. She also requested that she be allowed access to case file no. 24048 in order to take copies of it.

On 15 June 2004 the acting prosecutor of the Urus-Martan district replied to the first applicant that the materials in the case file were insufficient to either establish the whereabouts of Kazbek Vakhayev or identify the persons responsible for his abduction. She was invited to submit all evidence, if she had any, to the prosecutor’s office.

On 29 June 2004 the Prosecutor’s Office of the Chechen Republic informed the applicant that an investigation in the case no. 24048 was underway.

On 29 September 2004 the Urus-Martan District Prosecutor’s Office informed the applicant about the resumption of the investigation in case no. 24048.

On 27 October 2004 the first applicant submitted the video tape recorded on 22 August 2000 to the Urus-Martan District Prosecutor’s Office and requested that it be included in the case file.

On 28 October 2004 the tape was added to the case file.

On 29 October 2004 the Urus-Martan District Prosecutor’s Office suspended the investigation of case no. 24048.

On 6 June 2005 the investigation was resumed.

On 6 July 2006 the Urus-Martan District Prosecutor’s Office again suspended the investigation.

On 21 July 2006 the investigation was resumed.

On 4 August 2006 the materials concerning the discovery of the four unidentified bodies were made part of a separate investigation.

According to the applicants, there has been no significant development in the investigation of Kazbek Vakhayev’s disappearance since. In particular, as far as they know, no exhumation of the unidentified bodied has taken place.

C. Court proceedings concerning the inactivity of investigating authorities

On 5 January 2003 the first applicant filed a claim with the Urus-Martan Town Court to have the inaction of the Urus-Martan District Prosecutor declared unlawful. She complained about the absence of an effective investigation and requested the court to order the prosecutor’s office to resume criminal proceedings.

On 16 April 2003 the first applicant lodged a complaint with the Supreme Court of the Chechen Republic about the town court’s failure to examine her claim and requested the Supreme Court to act as a first-instance court in her case. On 14 May 2003 the President of the Supreme Court of the Chechen Republic forwarded this letter to the Urus-Martan Town Court with a notice “to consider it on the merits”.

On 1 July 2003 the first applicant had a meeting with the President of the Urus-Martan Town Court who told her that she should have lodged a complaint with the prosecutors’ office. The applicant concluded that the court would not consider her claim.

On 2 July 2003 the first applicant requested the Supreme Court of the Chechen Republic to act as a court of first-instance in respect of her complaint against the Urus-Martan District Prosecutor’s Office.

On 21 July 2003 the President of the Supreme Court of the Chechen Republic sent an enquiry to the Urus-Martan Town Court about the progress in the examination of the applicant’s claim.

On 30 July 2003 the first applicant requested the President of the Supreme Court of the Chechen Republic to inform her when her claim would be considered.

On 15 August 2003 the President of the Urus-Martan Town Court informed the President of the Supreme Court of the Chechen Republic that the investigation in the criminal case no. 24048 had been resumed as of 15 July 2003.

On 12 September 2003 the first applicant requested the Supreme Court of the Chechen Republic to act as a court of first-instance on her case against the Urus-Martan District Prosecutor’s Office.

On 7 October 2003 the Deputy President of the Supreme Court of the Chechen Republic informed the applicant that the criminal investigation in case no. 24048 had been resumed and was to be completed in one month. Her complaint, together with her claims against the Urus-Martan District Prosecutor’s Office, were therefore forwarded to the Prosecutor’s Office of the Chechen Republic.

On 22 July 2004 the first applicant filed a new complaint in the Urus-Martan Town Court against the Urus-Martan District Prosecutor’s Office. She challenged their failure to conduct an effective investigation.

On 14 September 2004 the Urus-Martan Town Court granted the first applicant’s complaint and declared the failure to act on the part of the Urus-Martan District Prosecutor’s Office unlawful. The court ordered that the applicant’s request of 21 May 2004 to bring criminal charges against officers of the Urus-Martan VOVD, exhume bodies re-buried in Goyskoye and allow her access to the case file be dealt with by the prosecutor’s office.

On 3 December 2004 the first applicant filed another complaint with the Urus-Martan Town Court against the Urus-Martan District Prosecutor’s Office. She challenged their failure to charge the officers of the department of the interior with criminal offences related to the abduction and, possibly, the murder of her son, the failure to give her access to the case file and to take measures to identify the bodies re-buried in Goyskoye.

On 28 December 2004 the Urus-Martan Town Court granted the first applicant’s complaint in part and ordered the Urus-Martan District Prosecutor’s Office to take measures in relation to the unidentified bodies. The remainder of the complaint was dismissed.

On 18 January 2005 the first applicant appealed.

On 9 February 2005 the Supreme Court of the Chechen Republic dismissed the first applicant’s appeal and upheld the judgment of 28 December 2004.

D. The Court’s request to submit the investigation file

Despite the Court’s specific request, the Government has not submitted a copy of the investigation file into the abduction of Kazbek Vakhayev. They have submitted case file materials extending to 46 pages, containing decisions on the institution, suspension and resumption of the investigation and the decisions in relation to the granting of victim status, and copies of judicial decisions concerning the first applicant’s complaints. 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 Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants of criminal proceedings.

COMPLAINTS

1. The applicants submitted that Russia had violated its positive obligation under Article 2 to protect the life of everyone within its jurisdiction. They argued that the known circumstances of Kazbek Vakhayev’s detention and absence of any news from him since August 2000 gave rise to a strong presumption that he had been killed by Russian servicemen, in violation of Article 2 of the Convention. They also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Kazbek Vakhayev, in violation of the procedural obligations under Article 2 of the Convention.

2. The applicants submitted that the anguish and distress suffered by them as a result of the disappearance of their family member and the lack of an adequate response on behalf of the authorities amounted to treatment in violation of Article 3 of the Convention.

3. The applicants complained that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Kazbek Vakhayev.

4. In their application form the applicants complained that they had been deprived of access to a court, contrary to the provisions of Article 6, because a civil claim for damages would entirely depend on the outcome of the criminal investigation into the disappearances. In their observations submitted after the application had been communicated to the respondent Government they withdrew the complaint. Accordingly, it will not be examined by the Court.

5. In their application form the applicants also maintained that the detention of their close relative, Kazbek Vakhayev, had constituted an unlawful and unjustified interference with their family life, in breach of Article 8 of the Convention. In their observations submitted after the application had been communicated to the respondent Government they withdrew the complaint. Accordingly, it will not be examined by the Court.

6. The applicants finally alleged the absence of any effective remedies in respect of their complaints under Articles 2, 3 and 5 of the Convention, contrary to Article 13 of the Convention.

THE LAW

A. The Government’s objection as to the exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies, since the investigation into the disappearance of Kazbek Vakhayev had not yet been completed.

The applicants disputed that objection. In their view, the fact that the investigation had been pending for eight years with no tangible results proved that it was an ineffective remedy in this case.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.

B. Merits of the application

1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of Kazbek Vakhayev and of the authorities’ failure to conduct a proper investigation. Article 2 of the Convention reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government submitted that the information concerning Kazbek Vakhayev’s death had not been confirmed. Nor had it been established that any State agents had violated his right to life. Investigating authorities had taken the measures provided for in domestic law so as to identify the persons involved in his abduction.

The applicant argued that it was beyond reasonable doubt that Kazbek Vakhayev had been killed by representatives of federal forces. Furthermore, the investigation conducted into his disappearance had been manifestly ineffective.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complained that the anguish and distress suffered by them as a result of their family member’s disappearance and the authorities’ reaction amounted to treatment in violation of Article 3 of the Convention, which reads as follows:

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

The Government submitted that the investigation had produced no evidence that the applicants had been subjected to treatment prohibited by the above Convention provision.

The applicants maintained the complaint.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants complained that Kazbek Vakhayev had been deprived of his liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government submitted that Kazbek Vakhayev had been detained as a person with no fixed residence. After his identity had been established, he had been released.

The applicants contended that Kazbek Vakhayev’s detention had been unlawful since he had clearly not been a vagrant as he had been arrested at his home and had had his passport with him.

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 Articles 2, 3 and 5 of the Convention. Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government contended that the applicants had had effective domestic remedies, as required by Article 13 of the Convention. In particular, the first applicant had availed herself of her right to appeal to a court.

The applicants contested the Government’s submissions. They argued that possible effectiveness of domestic remedies had been undermined by the authorities’ failure to conduct an effective investigation into Kazbek Vakhayev’s disappearance.

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.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3;

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

Declares the application admissible, without prejudging the merits.

Søren Nielsen Christos Rozakis
RegistrarPresident

 

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