YUSUPOVA AND ZAURBEKOV v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22057/02
by Roza Magomedovna YUSUPOVA and Ayndi Abdulkasimovich ZAURBEKOV
against Russia

The European Court of Human Rights (First Section), sitting on
3 May 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrA. Kovler,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 1 November 2001,

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 Roza MagomedovnaYusupova, born in 1958, and
Mr Ayndi Abdulkasimovich Zaurbekov, born in 1983, are Russian nationals and live in Grozny, Chechnya. They are represented before the Court by lawyers of the Stichting Russian Justice Initiative, an NGO based in the Netherlands with a representative office in Moscow, Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant was married to Abdulkasim Zaurbekov, born in 1951. They had four sons – Arbi, born in 1978, Alavdi, born in 1982, Ayndi, born in 1983 (the second applicant), and Magomed-Salakh, born in 1995, and lived in Grozny, Chechnya.

1. Disappearance of Abdulkasim Zaurbekov

Between 15 August and 16 October 2000 Abdulkasim Zaurbekov worked as a crane operator at the Temporary Office of the Interior of the Oktyabrskiy District of Grozny (временный отдел внутренних дел Октябрьского района г. Грозного, “the Oktyabrskiy VOVD”) under a short term employment contract.

On 16 October 2000 the Oktyabrskiy VOVD informed Mr Zaurbekov that his contract could not be extended for lack of financing and invited him to collect his salary the next day.

On 17 October 2000 around 11 a.m. Abdulkasim Zaurbekov and the second applicant arrived at the Oktyabrskiy VOVD. The former entered the premises of the VOVD to get his wages, while the latter waited in a car in front of a security barrier 200 – 300 metres from the main entrance.

After having waited for a while, the second applicant enquired twice about his father with the officers at the barrier who told him to wait. Around 7 p.m., when it got dark, the second applicant again enquired about his father and the police officers responded that “there were no civilians left” in the premises of the VOVD. The second applicant then returned home.

The applicants have had no news of Abdulkasim Zaurbekov thereafter.

2. The applicants’ search for Abdulkasim Zaurbekov

Since 18 October 2000 the applicants have repeatedly applied in person and in writing to various public bodies, including the Oktyabrskiy VOVD, district and city military commander’s offices, prosecutors at various levels, special police units in Chechnya (отряды милиции особого назначения), the Chechen Department of the Federal Security Service (Управление по Чеченской Республики Федеральной службы безопасности, “the Chechen Department of the FSB”), local and regional administrative authorities and the Special Envoy of the Russian President for Rights and Freedoms in the Chechen Republic (Специальный представитель Президента РФ по обеспечению прав и свобод человека и гражданина в Чеченской Республике). In their letters to the authorities the applicants referred to the facts of their relative’s disappearance and asked for assistance and details of an investigation. Mostly these enquiries remained unanswered, or only formal responses were given by which the applicants’ requests were forwarded to various prosecutor’s offices.

On 18 October 2000, in the morning, the applicants and other relatives visited the Oktyabrskiy VOVD and enquired about Abdulkasim Zaurbekov. The first applicant’s sister-in-law and another relative were admitted to the premises of the VOVD and talked to Mr Skarzhinskiy, the Head of the Oktyabrskiy VOVD. The latter told that he was unaware of Abdulkasim Zaurbekov’s whereabouts, that there had been no grounds for his detention and that there was no such person among detainees kept in the Oktyabrskiy VOVD. Mr Skarzhinskiy further told that Abdulkasim Zaurbekov had left the premises of the VOVD after he had received his salary.

The first applicant’s sister-in-law also managed to look through an attendance register (журнал регистрации посетителей) in which she found an entry to the effect that Abdulkasim Zaurbekov had entered the building at 11.20 a.m. on 17 October 2000. There was no entry confirming that Abdulkasim Zaurbekov had ever left the Oktyabrskiy VOVD.

During the first week after Abdulkasim Zaurbekov’s disappearance the first applicant talked to several people who had allegedly seen her husband on the premises of the Oktyabrskiy VOVD on 17 October 2000. In particular, the first applicant met a police officer Nikolay, who told her that Abdulkasim Zaurbekov had assisted him in repair work that day and then had gone to the accounting office to receive his salary, having promised to get back, but had never returned. The first applicant also talked to two workers who told her that they had been engaged in repair work at the VOVD premises on 17 October 2000 and had seen Abdulkasim Zaurbekov enter the VOVD between 12 noon and 1 p.m., however had not seen him leave.

The first applicant talked to a representative of the military prosecutor of the Chechen Republic who promised to find out whether her husband was held at the military base of Khankala. A few days later the representative informed the first applicant that he had only been able to search for her spouse at the location of military units, and Abdulkasim Zaurbekov was not detained there. The official further stated that he had had no access to other branches of armed forces and therefore had been unable to check at the location of the Main Intelligence Department (Главное разведывательное управление), a special fast deployment team (специальный отряд быстрого реагирования) and a special police unit.

According to the first applicant, while searching for her husband she found out that a number of persons had been ill-treated by officers of the Oktyabrskiy VOVD or disappeared after having been detained there.

3. Official investigation into Abdulkasim Zaurbekov’s disappearance

On 20 October 2000 the Oktyabrskiy VOVD commenced an inquiry into Abdulkasim Zaurbekov’s disappearance.

On 28 October 2000 the Oktyabrskiy VOVD decided to dispense with criminal proceedings in the absence of evidence that any crime had been committed against Abdulkasim Zaurbekov.

On 8 November 2000 the Grozny prosecutor’s office (прокуратура
г. Грозного) quashed the above decision and opened criminal case no. 12260. In January 2002 the first applicant found out that this criminal case had been instituted in connection with her husband’s murder.

According to the applicants, after the investigation had been opened the first applicant regularly visited the Grozny Prosecutor’s Office to find out about the measures taken. In the applicants’ submission, Mr Blyumskiy, the Prosecutor of Grozny, and Mr Lebedev, an investigator in charge, told the first applicant to stay at home, as they themselves would visit her there. They also promised to bring police dogs to search for her husband, but never did so. In response to the first applicant’s request to question certain VOVD officers before they left for their permanent place of residence in another region of Russia, Mr Lebedev answered that it would be easier to interrogate the officers there.

On 12 November 2000, after their secondment had finished,
Mr Blyumskiy and Mr Lebedev left Chechnya for their permanent place of residence.

By letters of 11 and 18 November 2000 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской республики, “the republican prosecutor’s office”) referred the first applicant’s applications to the Grozny prosecutor’s office.

On 5 December 2000 the Chechen Department of the FSB informed the first applicant that their officers had not detained her husband and had no information about the latter’s whereabouts. The first applicant’s application had been transmitted to the Grozny prosecutor’s office.

At some point in December 2000 the first applicant received information to the effect that her husband had been kept at the military base of Khankala. According to the first applicant, in response to her request to verify this information, Mr Shakikhachev, the then investigator in charge, stated that he “was afraid of going to Khankala”, as he himself “might disappear there”.

On an unspecified date in November – December 2000 another investigator of the Oktyabrskiy VOVD, Mr Lapin told the first applicant that according to his information, Abdulkasim Zaurbekov was dead. He, however, refused to provide any further explanation.

On 24 January 2001 the Administration of the Chechen Republic referred the first applicant’s application to the military prosecutor of military unit 20102 (военная прокуратура военной части 20102).

On 15 July 2002 criminal case no. 12260 was joined with three other cases opened in connection with the disappearance of residents of Grozny at various times in 2000.

In a letter of 30 June 2003 the republican prosecutor’s office informed the first applicant that the criminal investigation had been instituted under Article 105 § 1 of the Russian Criminal Code into the murder of their relative, as “there [was] no such criminal offence as ‘disappearance’ in the Russian Criminal Code” and therefore criminal cases in connection with disappearances were, as a general rule, opened under the said Article.

In the applicants’ submission, the investigation into their relative’s disappearance was discontinued and resumed on several occasions. The respective decisions were never served on any of them, and they were only notified of them when the first applicant visited the Grozny prosecutor’s office. According to the first applicant, in breach of superior prosecutors’ orders the investigating body had never interrogated chief officers of the Oktyabrskiy VOVD.

Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memorials dated 24 August and 27 September 2005 that, on 8 November 2000, criminal proceedings under Article 105 § 1 of the Russian Criminal Code (murder) had been instituted in connection with Abdulkasim Zaurbekov’s disappearance. The preliminary investigation in this case had been suspended on 8 January,
29 February, 28 April, 9 November and 19 December 2001, 30 January and 11 October 2002, 15 April, 23 May, 4 August, 22 October and 25 December 2003, 27 November 2004 and 8 September 2005 and then resumed on
29 January, 28 March, 9 October, 19 November and 30 December 2001,
11 July and 15 November 2002, 28 April, 30 July, 22 September and
25 November 2003, 15 October 2004, 12 July and 20 September 2005 respectively. The Government submitted that the case was now being investigated by the Grozny prosecutor’s office under supervision of the Prosecutor General’s Office.

The Government further submitted that the first applicant had been interrogated on 20 November 2000, 15 February and 13 October 2001. According to them, there was no evidence in transcripts of the first applicant’s interrogations that she had ever made statements to the effect that her husband had been kept at the military base in Khankala. The first applicant had been granted the status of victim on 15 February 2001. The authorities had also questioned the second applicant on 29 November 2000 and his sister on an unspecified date.

In the Government’s submission, the authorities had questioned over
80 officers of the law-enforcement agencies of the Khanty-Mansiysk Region who at the relevant time had served at the Oktyabrskiy VOVD. The officers had been shown Abdulkasim Zaurbekov’s photograph for identification. They had stated that the applicants’ relative had never been held in the temporary isolation unit of the Oktyabrskiy VOVD. Officer S. who at the material time had been the acting head of the Oktyabrskiy VOVD had given positive reference to the applicants’ relative and stated that during the search the investigators had obtained information to the effect that Abdulkasim Zaurbekov could have been killed by members of illegal armed groups for his refusal to collaborate with them. Officer B. had stated that on the day of Abdulkasim Zaurbekov’s disappearance he had seen the latter walking outside the territory of the Oktyabrskiy VOVD in the direction of a local market.

According to the Government, the investigating authorities had also seized and examined documents from the Oktyabrskiy VOVD pertaining to the relevant period and sent a number of queries to the law-enforcement agencies at various regions of Russia. They had obtained information that no criminal proceedings had ever been brought, nor any special measures ever been taken, against Abdulkasim Zaurbekov and that he had never been arrested or detained by any of them. The authorities had also taken a number of steps aiming at establishing Abdulkasim Zaurbekov’s whereabouts.

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 (CCP).

Article 161 of the new CCP stipulates 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 applicants complained under Article 2 of the Convention of a violation of the right to life in respect of their relative, Abdulkasim Zaurbekov. The applicants submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established indicated that Abdulkasim Zaurbekov had been killed by the federal forces. The applicants also complained that no effective investigation had been conducted into their relative’s disappearance.

2. The applicants next referred to Article 3 of the Convention, claiming that they had serious grounds to believe that Abdulkasim Zaurbekov had been subjected to torture and inhuman treatment and that no effective investigation had been conducted in this respect. Under this heading the applicants also submitted that they had suffered severe mental distress and anguish in connection with their relative’s disappearance and on account of the State’s failure to conduct a thorough investigation in this respect.

3. The applicants submitted that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Abdulkasim Zaurbekov.

4. The applicants further relied on Article 6 § 1 of the Convention stating that under national law they were barred from filing a civil claim to obtain compensation for their relative’s unlawful detention or death pending the outcome of the criminal investigation.

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

6. Lastly, in their observations of 14 November 2005 the applicants complained that the Government’s refusal to submit a copy of the file of the investigation into their relative’s disappearance was in breach of the State’s obligations under Articles 34 and 38 § 1 of the Convention.

THE LAW

1. The applicants 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 as the applicants had failed to exhaust the domestic remedies available to them. They submitted that the investigation into the disappearance of the applicants’ relative had not yet been completed. The Government also argued that it had been open to the applicants to lodge a court complaint about the actions or omissions of the investigating or other law-enforcement authorities, but they had not availed themselves of that remedy.

The applicants contested the Government’s objection. They claimed that an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. In this connection the applicants relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, and on documents by human rights NGOs and the Council of Europe. The applicants argued that, in any event, they had repeatedly applied to law-enforcement bodies, including various prosecutors, and had attempted to participate in the investigation. This avenue, however, had proved futile, given that the criminal investigation had been pending since November 2000 but had failed to identify those involved in the illegal detention and disappearance of Abdulkasim Zaurbekov despite compelling evidence confirming the involvement of representatives of the law-enforcement agencies.

The applicants 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 their situation. They stated that under domestic law a court, in examining such a complaint, could order the investigating authorities to resume the investigation or take certain investigative measures. In this connection the applicants pointed out that the investigation into their relatives’ abduction had been resumed on several occasions; however, so far it had produced no results. The applicants therefore argued that court complaints against the investigators would not have changed the situation, and therefore they had been under no obligation to make use of that remedy. The applicants also referred to the Court’s established case-law to the effect that, in any event, the authorities had to carry out the investigation of their own motion once the matter had come to their attention, without leaving it to the initiative of the next-of-kin to take responsibility for the conduct of any investigative procedures.

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 applicants’ complaints

1. The Government

The Government argued, with reference to a reply from the Prosecutor General’s Office, that the investigation had not established the involvement of the personnel of the Russian law-enforcement agencies in Abdulkasim Zaurbekov’s disappearance and that there was no convincing evidence that he was dead. The Government further claimed that the investigation into the disappearance of the applicants’ relative 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 applicants or their relative had been subjected to treatment prohibited by Article 3 of the Convention, or that Abdulkasim Zaurbekov had been deprived of his liberty in breach of Article 5 of the Convention.

The Government also contended that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, and the Russian authorities had not prevented them from using those remedies. They submitted that the relatives of the missing person had been declared victims and had received reasoned replies to all their requests made in the context of the investigation.

2. The applicants

The applicants disagreed with the Government and maintained their complaints. They stressed that Abdulkasim Zaurbekov disappeared at the hands of the authorities in life-endangering circumstances and the Government had failed to produce any plausible explanation as to his whereabouts. The applicants contended that the fact that their relative was not listed among those being held in detention centres, as alleged by the Government, proved that his life had been endangered after he had been detained, since there was a widespread practice of forced disappearances, extrajudicial executions, tortures and ill-treatment of detainees in Chechnya by representatives of the federal forces. The applicants thus argued, relying on Article 2 of the Convention, that the fact that Abdulkasim Zaurbekov had remained missing since 17 October 2000 proved that he had been killed.

As regards the procedural aspect of Article 2 of the Convention, the applicants claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of their relative’s disappearance. They argued that it had been pending for over five years but had not brought any tangible results so far, having been repeatedly suspended and reopened. Furthermore, the investigating authorities had failed to inform the applicants about the decisions concerning the adjournment and reopening of the investigation or its progress. The applicants’ numerous requests to the authorities throughout the investigation had remained unanswered or only produced standard replies. The applicants had not been granted access to the case file. In support of their argument regarding the inefficiency of the investigation, the applicants also referred to the Government’s refusal to submit a copy of the file in the criminal case concerning their relative’s disappearance.

The applicants further insisted that there were serious reasons to believe that Abdulkasim Zaurbekov had been ill-treated after being detained. They referred to applications submitted to the Court by other individuals claiming to be victims of similar violations, and to documents by human rights NGOs and the Council of Europe reporting numerous instances where people detained in Chechnya had been found dead, or had returned from custody, showing signs of torture or ill-treatment. The applicants further claimed that no investigation had been carried out into the matter. They also maintained that they had endured severe mental suffering falling within the scope of Article 3 of the Convention in view of the State’s indifference to their relative’s disappearance and its repeated failure to inform them of the progress in the investigation.

The applicants reiterated their argument that Abdulkasim Zaurbekov had been detained by the representatives of the federal forces and argued that his 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.

Lastly, the applicants relied on Article 13 of the Convention, alleging that in their case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for several years without any progress, that they had never been granted the access to the case file of the investigation and that all their 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 this part of the 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 this part of 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.

2. The applicants also complained that they were unable to bring civil proceedings for compensation for their relative’s unlawful detention or death until the investigation had been completed. They relied on Article 6
§ 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government argued that the applicants’ complaint concerning the alleged absence of access to a court to obtain compensation was speculative as, in practice, they had never attempted to file such a claim in a domestic court. The applicants maintained their complaint.

The Court observes that the applicants submitted no information which would prove their alleged intention to apply to a domestic court with a claim for compensation. It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies in respect of the complaints submitted under Articles 2, 3, 5 and 13 of the Convention;

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

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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