AS TO THE ADMISSIBILITY OF
Application no. 27183/03
by Tumisha Magomedovna ZAURBEKOVA and Maryam Dushayevna ZAURBEKOVA
The European Court of Human Rights (First Section), sitting on 11 October 2007 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 18 July 2003,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Tumisha Magomedovna Zaurbekova and Ms Maryam Dushayevna Zaurbekova, are Russian nationals who were born in 1943 and 1975 respectively. The first applicant lives in Urus-Martan and the second applicant lives in Grozny. They are represented before the Court by lawyers of the Stichting Russian Justice Initiative (“the SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former 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 has two children – Isa Zaurbekov, born in 1967, and the second applicant. At the material time the latter two temporarily lived in a block of flats at 1 Kirov Avenue in Grozny, Chechnya. Isa Zaurbekov worked as a car mechanic in a local repair shop.
1. Detention of Isa Zaurbekov
On 11 February 2003, around 3 a.m., a group of armed men forcibly entered the block of flats at 1 Kirov Avenue and attempted to break the door of an apartment in which the second applicant and Isa Zaurbekov lived. The men managed to make a hole in the door. One of them then pointed his sniper rifle (vintorez) through that hole at the second applicant who had been awaken by the noise and ordered her to let them in. As soon as the second applicant opened the door, the men pushed her aside and about 15 of them entered the apartment. They were wearing camouflage uniforms and one of them was masked. The men had sniper rifles with optic sights and silencers. According to the second applicant, the men who raided her flat belonged to the Russian federal troops, since they spoke Russian without accent, had Slavic appearance, were equipped with military vehicles and were able to circulate freely in Grozny during the curfew. In the Government’s submission, they were “unidentified persons in camouflage uniforms armed with automatic firearms”.
One of the men ordered another one to get the second applicant “out of the way”, and the latter put his gun into her mouth. Then he covered the second applicant’s mouth with a rag and tied her hands with a rope.
The intruders did not introduce themselves or produce any documents to authorise their actions and searched the flat. They forced Isa Zaurbekov, who was asleep in his room, out of bed and ordered him to lie down. The men tied his hands and covered his mouth with adhesive tape. They then ordered the second applicant’s brother to produce his identity papers, and the latter indicated that his passport was in his jacket. One of the servicemen showed Isa Zaurbekov’s passport to the masked man and asked if that was him. The masked man shook his head in the negative. The former servicemen stated that they would “take away [Isa Zaurbekov] anyway and then find out”. Although Isa Zaurbekov was only wearing trousers and a shirt and was barefooted, the men did not allow him to take his overcoat.
Before leaving the flat one of the men ordered the second applicant to stay immovable for half an hour if she “wanted to live”. However, the one who had tied her told her quietly that he had made the knot loose so that she could free herself easily. After the men had left, the second applicant managed to untie her hands. She then went out on the balcony and saw about 40 servicemen in the street. There were also three armoured personnel carriers (“APC”), a white VAZ-2106 Zhiguli car and an UAZ vehicle. They left in the direction of the federal military base in Khankala. The applicants have had no news of Isa Zaurbekov after that date. The second applicant also examined the flat and found out that a computer, a number of floppy disks and a family photo album were missing.
The applicants corroborated their account of events of 11 February 2003 with two eye-witness statements.
2. The applicants’ search for Isa Zaurbekov
According to the applicants, on 12 February 2003 they complained in writing about their relative’s detention to the military prosecutor of Khankala but received no reply. The applicants did not furnish the Court with a copy of their complaint. In the second applicant’s submission, it was not until three months later that investigative officers visited the block of flats at 1 Kirov Avenue and interrogated her neighbours.
Following Isa Zaurbekov’s detention, the applicants repeatedly applied in person and in writing to various public bodies, including prosecutors at various levels, administrative authorities of Chechnya, the Office of the President of Russia (Администрация Президента РФ), the Chairman of the State Duma (Председатель Государственной Думы) and the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit (Полномочный представитель Президента РФ в Южном федеральном округе). They were supported in their efforts by the SRJI. In their letters to the authorities the applicants and the SRJI referred to the events of 11 February 2003 and asked for assistance and details of the investigation. Mostly these enquiries remained unanswered, or only formal responses were given stating that the applicants’ requests were forwarded to various prosecutor’s offices for examination.
3. The official investigation into Isa Zaurbekov’s disappearance
According to the Government, the applicants first notified the authorities of their relative’s detention on 14 April 2003, when the second applicant’s complaint about the events of 11 February 2003 was received by the Grozny prosecutor’s office (прокуратура г. Грозного). In the Government’s submission, the Grozny prosecutor’s office forwarded this complaint “for examination” to the office of the interior of the Leninskiy District of Grozny (Ленинский отдел внутренних дел г. Грозного). The latter sent the materials on the result of the examination to the Grozny prosecutor’s office on 23 May 2003.
On 17 June 2003 the Grozny prosecutor’s office instituted a criminal investigation into Isa Zaurbekov’s disappearance under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping). The file was given the number 20123.
In letters of 25 and 30 June 2003 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”) informed the first applicant that criminal proceedings had been brought in connection with her son’s abduction by unidentified persons and that she would be notified of the results of the investigation.
By a letter of 23 July 2003 the military prosecutor of the United Group Alignment (военный прокурор Объединенной группы войск) transmitted the first applicant’s application to the military prosecutor of military unit no. 20102 (военный прокурор войсковой части 20102) for examination.
On 31 July 2003 a deputy Prosecutor General of Russia (заместитель Генерального прокурора РФ) informed the first applicant that he had forwarded her request to establish the whereabouts of her son, who had been detained by “individuals wearing military uniforms”, to the republican prosecutor’s office which would notify her of any developments in the case.
By a decision of 11 August 2003 an investigator of the prosecutor’s office of the Leninskiy District of Grozny (прокуратура Ленинского района г. Грозного, “the district prosecutor’s office”,) acknowledged the first applicant as a victim in criminal case no. 20123.
In a letter of 25 August 2003 the republican prosecutor’s office again informed the first applicant that criminal case no. 20123 had been opened in connection with Isa Zaurbekov’s abduction and that the term for a preliminary investigation had been extended until 17 September 2003. The letter continued that investigative actions were being taken to identify the alleged perpetrators and that the republican prosecutor’s office was closely supervising the investigation.
On 25 September 2003, in reply to the second applicant’s application of 15 March 2003, the Grozny prosecutor’s office informed her that the preliminary investigation in criminal case no. 20153 opened on 17 June 2003 into her brother’s disappearance had been suspended for “a failure to identify those responsible”, however “the search for Isa Zaurbekov had not been discontinued”.
On 29 October 2003, in reply to the application of the SRJI lodged on the applicants’ behalf, the republican prosecutor’s office stated that criminal proceedings in case no. 48193 instituted on 17 June 2003 in connection with Isa Zaurbekov’s abduction by unknown individuals had been suspended on 17 September 2003, as the alleged perpetrators could not be established. The SRJI and the applicants were advised on addressing their further queries to the district prosecutor’s office.
In a letter of 2 December 2003, in reply to another query of the SRJI, the republican prosecutor’s office only re-stated that the criminal investigation into Isa Zaurbekov’s abduction had been commenced on 17 June 2003.
On 11 December 2003 the district prosecutor’s office informed the first applicant that all the necessary investigative measures had been taken in the course of the investigation in criminal case no. 20123, but the location of her son had not been established, and that at present the search for Isa Zaurbekov was still underway.
On 11 April 2005 the republican prosecutor’s office notified the first applicant in reply to her query of 25 February 2005 that the file of the case concerning her son’s abduction had been sent to the district prosecutor’s office “for the resumption of the investigation”.
By a decision of 14 April 2005 the district prosecutor’s office granted the status of victim of a crime to the second applicant. The applicants submitted a copy of this decision.
On the same date the district prosecutor’s office informed the first applicant that the proceedings in case no. 20123 had been resumed.
On 15 April 2005 the investigator in charge of the district prosecutor’s office sent requests to prosecutors of regions neighbouring to Chechnya as well as to prosecutors of various districts in Chechnya, describing Isa Zaurbekov’s appearance and distinctive marks and asking them to check whether he was listed among unidentified dead bodies and whether any criminal cases had ever been opened in connection with the discovery of corpses having the appearance and marks similar to those of Isa Zaurbekov.
On 5 May 2005 the investigator in charge sent a reminder to the district prosecutor’s offices of Chechnya, asking them to comply with the request of 15 April 2005 which had remained unanswered.
On 14 May 2005 the district prosecutor’s office notified the first applicant of the suspension on an unspecified date of the investigation. The letter also stated that the measures aiming at establishing the identity of the alleged perpetrators were being taken.
By a letter of 10 June 2005 the republican prosecutor’s office transmitted the first applicant’s query to the district prosecutor’s office for examination.
On 13 July 2005 the office of the interior of the Urus-Martan District of Grozny informed the first applicant that they were taking steps aiming at establishing Isa Zaurbekov’s whereabouts and finding those involved in his abduction.
On 11 August 2005 the district prosecutor’s office replied to the first applicant’s query of 2 August 2005. The letter stated that the investigation in criminal case no. 20123 in connection with her son’s abduction had been opened on 17 June 2003, and that although all possible measures had been taken, Isa Zaurbekov’s whereabouts and the identity of the alleged perpetrators could not be established. It went on to say that a number of witnesses residing in the same block of flats where Isa Zaurbekov and the second applicant had lived had been interrogated and that relevant queries had been sent to various State bodies in Chechnya and neighbouring regions; however those steps had brought no positive results. The letter assured the first applicant that the search for her son was in progress and stated that she could access the file of criminal case no. 20123 at any time during the working hours in the premises of the district prosecutor’s office.
In a letter of 18 August 2005 the republican prosecutor’s office informed the applicants that the investigation in case no. 20123 had been re-opened.
It appears that at some point the investigation was again suspended.
In a letter of 28 November 2005 the district prosecutor’s office notified the applicants that the investigation in case no. 20123 had been resumed on the same date.
On 28 December 2005 the district prosecutor’s office informed the applicant of the adjournment of the proceedings in case no. 20123 for a failure to identify the alleged perpetrators.
Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memorials dated 26 October and 22 December 2005 that the investigation into Isa Zaurbekov’s abduction had been commenced on 17 June 2003 and then suspended on 17 September 2003, 14 May and 17 September 2005 and resumed on 14 April, 17 August and 28 November 2005, but had failed to identify those responsible so far.
In the Government’s submission, on 10 August 2003 and 14 April 2005 the investigating authorities questioned the second applicant, who had reiterated her account of events of 11 February 2003. According to the Government, the second applicant had been granted the status of victim of a crime on 4 September 2003. The investigators also questioned the first applicant on 11 August and 19 September 2003 and declared her a victim of a crime on 11 August 2003. She had stated that the second applicant had informed her in the early hours of 12 February 2003 of Isa Zaurbekov’s detention and that the next day she had notified all relevant State bodies, but her son’s whereabouts had not been established. Apart from the applicants, the authorities also interrogated the applicants’ relatives and six neighbours of the second applicant. Most of them stated that they had not seen Isa Zaurbekov’s abduction, whilst one of the neighbours submitted that on the date of the incident he had seen about ten armed men in camouflage uniforms and masks near the block of flats in which he, the second applicant and Isa Zaurbekov had lived on but he had not seen any military vehicles. It does not appear that any other witnesses were questioned in the course of the investigation.
The Government also stated that the investigating authorities had sent a number of queries to detention centres in Chechnya and further afield in the Northern Caucasus, the regional and federal security agencies and military authorities. The law-enforcement bodies had provided information that no criminal proceedings had ever been brought, or special measures ever been taken, against Isa Zaurbekov, that he had never been arrested or detained by any of them and had not been listed among detainees of any detention centres.
Despite specific requests made by the Court on two occasions, the Government did not furnish the Court with a copy of any of the documents from the criminal investigation file. They only submitted a list of documents in the file of criminal case no. 20123, from which it can be ascertained that there were at least 229 pages in the file. 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. At the same time, the Government suggested that a Court delegation could have access to the file in the premises of the preliminary investigation, with the exception of “those documents [disclosing military information and the personal data of the witnesses], and without the right to make copies of the case file and transmitting it to others”.
4. The alleged ill-treatment of the first applicant
According to the first applicant, at some point in May – June 2004 she learnt that on 2 June 2004 a representative of a certain human rights NGO located in Grozny would make public lists of detainees of the Russian detention centres.
On 2 June 2004, around 10 a.m., the first applicant arrived at the office of that NGO in Grozny, as she hoped to receive any information about her missing son. In her submission, she saw about 1,000 people waiting in front of the NGO office. Having received no news, some of the people then decided to go to the building of the Government of the Chechen Republic (Правительство Чеченской Республики, “the Chechen Government”) to enquire about their missing relatives.
Around 1 p.m. about 500 people arrived at the building of the Chechen Government and requested the security guards to call someone from the Government. The security guards told them to leave, since there was nobody from the Government in the building.
According to the first applicant, after having waited for 20 – 25 minutes, she went to a bus stop 50 metres away from the governmental building. Ten minutes later she saw security guards trying to disperse the crowd and shooting above the heads of the remaining people. Some of the demonstrators pursued by the guards ran towards the first applicant. One of the guards armed with a machine gun shouted at the first applicant, and then took her by the hand and, giving no explanations, forced her to follow him. In the first applicant’s submission, she was very frightened and attempted to explain that she had only been waiting at the bus stop. The man did not listen and shouted at her. The first applicant fell and hurt her arm and leg, but the men continued to drag her. The first applicant started screaming from pain, and then suddenly the man released her and ran towards the security guards who were shooting in the air and beating the demonstrators.
According to the first applicant, she was unable to rise to her feet because of the pain. Then an unknown woman helped her to stand up and they walked slowly towards the bus stop. When they were walking, a police officer approached them and ordered them to leave. The woman answered that they could not leave, since the first applicant felt unwell. The police officer called an ambulance and the first applicant was admitted to Grozny hospital no. 9 (девятая грозненская больница).
At the hospital the first applicant had an X-ray made, which indicated that she had her arm dislocated. After it had been reset, the first applicant left for her home town. The first applicant did not furnish the Court with a copy of the X-ray examination report or any other medical document certifying her injury.
The events of 2 June 2004 were reported by the Memorial Human Rights Centre on 4 June 2004 and by a news agency Prima in its article “Meeting broken up in Grozny and ‘Kadyrovtsy’ cause chaos” (Разгон митинга в Грозном и произвол «кадыровцев») of 18 June 2004.
5. The applicants’ access to the case file
In the applicants’ submission, upon receipt of the letter of 11 August 2005 they made a number of attempts to gain access to the file of the criminal investigation into Isa Zaurbekov’s abduction and visited the district prosecutor’s office on several occasions. According to them, once they were denied access to the case file as the investigator in charge was away, and on another occasion they were unable to read the case file as it had been sent to the republican prosecutor’s office.
On 20 December 2005 the second applicant again visited the district prosecutor’s office and was provided with copies of several documents from the file. Those included two requests of 15 April 2005 to prosecutors of regions neighbouring to Chechnya as well as to prosecutors of various districts in Chechnya, describing Isa Zaurbekov’s appearance and distinctive marks and asking them to check whether he was listed among unidentified dead bodies and whether any criminal cases had ever been opened in connection with the discovery of corpses with his appearance and marks, and a reminder of 5 May 2005 to carry out the steps indicated in the requests of 15 April 2005. According to the second applicant, the investigator in charge stated that he could not give her access to any other materials.
On 8 February 2006 the first applicant and a representative of the SRJI visited the district prosecutor’s office and were given access to the case file. They were not allowed to make any photocopies or to take written notes, but the first applicant managed to memorise the contents of a number of documents.
In particular, while studying the case file, the first applicant came across the information stating that the preliminary investigation had established that a group of armed servicemen of the Russian law-enforcement agencies had taken away Isa Zaurbekov at about 3 a.m. on 11 February 2003. The same group of servicemen had taken away two other men, father and son Sh., in a neighbouring district of Grozny at about 3.30 a.m. on the date in question and had attempted to take away another person, who, however, had been away from home at that moment.
The first applicant read witness statement of Mr Sh., a relative of father and son Sh. who had disappeared after 11 February 2003, dated 23 August 2005 to the effect that on 11 February 2003 armed people in four armoured personnel carriers and two UAZ vehicles had taken away father and son Sh. Mr Sh. also stated that on 18 February 2003 he and an investigator of the Grozny prosecutor’s office had visited a nearby federal checkpoint and found out that on 11 February 2003 at about 3 a.m. a federal military convoy had passed through the checkpoint in the direction of the districts where Isa Zaurbekov and the Sh. Men had been apprehended. The convoy, which had returned an hour later, consisted of four armoured personnel carriers and two UAZ vehicles.
The first applicant also saw a witness statement of certain Mr Kh. to the effect that he had heard the noise of heavy military vehicle on the night when Isa Zaurbekov had been apprehended, and statements of Mr and Mrs Idrisov, the second applicant’s neighbours, to the effect that on the night of the incident they had slept and learnt about Isa Zaurbekov’s detention on the next day.
According to the first applicant, there were no documents disclosing State secrets or military information in the case file.
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.
1. The applicants complained under Article 2 of the Convention about a violation of the right to life in respect of their close relative, Isa Zaurbekov. They submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established indicated that Isa 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. Referring to Article 3 of the Convention, the applicants complained that Isa Zaurbekov had been subjected to torture and inhuman treatment during his apprehension. The applicants further claimed that they had serious grounds to believe that he had also been ill-treated in custody. Under this heading the applicants also complained that they had suffered severe mental distress and anguish in connection with their relative’s disappearance. The second applicant further maintained that the servicemen, who had raided her flat on 11 February 2003, had threatened her life which had caused her severe and cruel mental suffering, in breach of Article 3 of the Convention. Finally, the first applicant relied on Article 3 of the Convention stating that she had been ill-treated and injured by a security guard of the Chechen Government during the demonstration of 2 June 2004.
3. The applicants maintained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Isa Zaurbekov.
4. The applicants further invoked 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 second applicant claimed that the intrusion by the Russian military into her and her brother’s flat on 11 February 2003 and the ensuing search had been unlawful and had infringed her and Isa Zaurbekov’s right to respect for their home, private and family life, as guaranteed by Article 8 of the Convention.
6. The applicants further complained that the seizure of their belongings during the search on 11 February 2003 had not been justified under Article 1 of Protocol No. 1.
7. The applicants alleged the absence of any effective remedies in respect of the above violations of their rights, contrary to Article 13 of the Convention.
8. Lastly, in their observations of 20 February 2006 the applicants complained that the Government’s refusal to submit a file in criminal case no. 20123 was in breach of the State’s obligations under Articles 34 and 38 § 1 (a) of the Convention.
1. The applicants complained under Article 2 of the Convention that their close relative had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. The applicants further relied on Article 3 of the Convention, submitting that their relative had most likely been tortured after having been apprehended, but that no effective investigation had been carried out on that account. The applicants also claimed that as a result of their relative’s disappearance and the State’s failure to investigate those events properly, they had endured mental suffering in breach of Article 3 of the Convention. They further stated that Isa Zaurbekov had been detained in violation of the guarantees of Article 5 of the Convention. The applicants complained under Article 8 of the Convention about the unlawful search in the second applicant’s flat and relied on Article 1 of Protocol No. 1 complaining about the unjustified seizure of their belongings. The applicant also claimed that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention. The respective Articles, in so far as relevant, read 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.”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“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.”
“1. Everyone has the right to respect for his private and 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.”
“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.”
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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Exhaustion of domestic remedies
1. Submissions by the parties
The Government argued that the present application should be declared inadmissible for non-exhaustion of domestic remedies, stating that the investigation into the abduction of the applicants’ relative was still pending.
The applicants contended that the fact that the investigation into the circumstances of their relative’s disappearance was still pending cast doubt upon its effectiveness rather than indicating that their complaints were premature. They further stressed that they had on numerous occasions complained to law-enforcement bodies, including various prosecutors, about the events of 11 February 2003. In this respect the applicants referred to the Court’s established case-law, stating that the authorities were under an obligation to carry out an effective investigation of their own motion once the matter had been brought to their attention. The applicants also 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.
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. Submissions by the parties
(a) The Government
The Government relied on the information provided by the Prosecutor General’s Office and argued that the investigation had not obtained any evidence to the effect that Isa Zaurbekov was dead, or that representatives of the federal power structures had been involved in his abduction or alleged killing. They insisted that until the circumstances of his abduction, and the identity of the persons involved, had been established, there were no grounds to claim that Isa Zaurbekov’s right to life secured by Article 2 of the Convention had been breached by the State. 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.
The Government further contended that there was no evidence that Isa Zaurbekov or the applicants had been subjected to treatment prohibited by Article 3 of the Convention. In their view, the investigation had not breached the requirements of that provision. They also submitted that “the materials of the criminal case do not make it possible to assess the degree of the applicants’ mental suffering”, and that therefore there had been no breach of Article 3 of the Convention on that account.
In the Government’s submission, the investigation obtained no evidence to confirm that the applicants’ relative had been detained in breach of the guarantees set out in Article 5 of the Convention.
The Government made no submissions as regards the complaints under Article 8 and Article 1 of Protocol No. 1 and argued that the applicants had had effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. In particular, the applicants were declared victims and received reasoned replies to all their requests made in the context of the investigation.
(b) The applicants
The applicants disagreed with the Government and maintained their complaints. They argued, relying on Article 2 of the Convention, that it was beyond reasonable doubt that Isa Zaurbekov had been detained by representatives of the federal forces, this fact being confirmed by two eyewitness statements, which they had previously submitted to the Court, and by a statements of Mr Sh. contained in the file of criminal case no. 20123. They also pointed out that the investigating authorities had established the fact that the armed men who had taken away Isa Zaurbekov had used armoured personnel carriers and argued that such military vehicles had been in exclusive possession of the federal armed forces. The applicants stressed that their relative had been apprehended in life-endangering circumstances and the fact that he remained missing for over three years and the Government’s failure to provide any plausible explanation as to his fate proved that he had been killed. The applicants also argued that the special operation carried out on the aforementioned date had not been properly planned and supervised by the authorities to ensure that it met the requirements of Article 2 of the Convention.
As regards the procedural aspect of Article 2 of the Convention, the applicants argued that the investigation in the present case had fallen short of the Convention standards. It had been pending for several years by now, having been adjourned and re-opened on several occasions, but the authorities took no meaningful efforts to verify the possible involvement of the federal forces in Isa Zaurbekov’s abduction despite the overwhelming evidence in that respect. The most essential investigative steps, such as interrogation of the servicemen from the check-point situated near the block of flats in which the second applicant and Isa Zaurbekov had lived, had not been taken. The applicants also argued that they had been denied an opportunity to participate properly in the investigation.
The applicants maintained that there were serious reasons to believe that their relative had been ill-treated after being apprehended. 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 contended that the authorities had failed to investigate their allegation that their relative had been ill-treated. The applicants 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 close relative’s disappearance.
The applicants subsequently argued that Isa Zaurbekov’s detention had not satisfied any of the conditions set out in Article 5 of the Convention, had had no basis in national law and had not been in accordance with a procedure established by law or been formally registered.
The applicants maintained their complaints under Article 8 of the Convention and Article 1 of Protocol No. 1.
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 and that the most part of their applications to public bodies had remained unanswered or had only produced standard replies.
2. 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 raised the following complaints under Article 3 of the Convention. The second applicant averred that the servicemen, who had raided her flat on 11 February 2003, had threatened her life which had caused her severe mental suffering, whilst the first applicant alleged that she had been ill-treated and injured by a security guard of the Chechen Government during the demonstration of 2 June 2004.
(a) As regards the second applicant’s complaint, the Government argued that, according to the second applicant, the men who had taken away her brother had not used any physical violence against her, having only tied her hands and put a rag in her mouth. They also submitted that there were no information in the criminal case file as to whether the second applicant had suffered any serious mental disorder caused by the events of 11 February 2003. The applicants made no particular submissions on this issue.
The Court firstly observes that the second applicant has not raised the complaint in question before the domestic authorities. In any event, it considers that, while the events of 11 February 2003 might be a source of considerable distress to the second applicant, no material has been submitted which would indicate that her mental suffering was distinct from the inevitable emotional distress in a situation such as in the present case and that it was so serious that it fell within the ambit of Article 3 of the Convention. The Court finds that this part of the application is manifestly ill-founded and therefore should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) As to the first applicant’s complaint, the Government stated that the investigation had no information regarding the inhuman treatment by a security guard of the Chechen Government in respect of the first applicant. The first applicant insisted that the events of 2 June 2004 had received extensive media coverage and were reported by a number of human rights NGOs, and therefore the Government should have been aware of the use of force during the dispersal of the demonstration. The first applicant insisted that she had been ill-treated on the date in question and stated that she had not requested the domestic authorities to investigate this incident because she had feared for her security.
The Court observes that the first applicant did not have recourse to any domestic remedies concerning the alleged ill-treatment and that, in any event, she did not submit any documentary evidence, such as medical certificates, confirming the presence of any injuries. It therefore finds that this complaint has not been substantiated. Accordingly, this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention
3. The applicants also alleged that they had had no access to a court as they had been unable to bring a civil action for compensation for their relative’s disappearance since the investigation had produced no results. 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. Accordingly, this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention (see Atabayeva and Others v. Russia (dec.), no. 26064/02, 7 June 2007, Lyanova and Aliyeva v. Russia (dec.), nos. 12713/02 and 28440/03, 8 June 2007, and Musikhanova and Others v. Russia (dec.), no. 27243/03, 10 July 2007).
For these reasons, the Court unanimously
Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies;
Declares admissible, without prejudging the merits, the applicants’ complaints under Articles 2, 5, 8 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention and the complaints under Article 3 of the Convention relating to the alleged ill-treatment of the applicants’ relative and their mental suffering in connection with their relative’s disappearance;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
ZAURBEKOVA and ZAURBEKOVA v. RUSSIA DECISION
ZAURBEKOVA and ZAURBEKOVA v. RUSSIA DECISION