AS TO THE ADMISSIBILITY OF
Application no. 27243/03
by Yakhita Ibragimovna MUSIKHANOVA and Others
The European Court of Human Rights (First Section), sitting on 10 July 2007 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 11 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 are relatives. They are:
1. Ms Yakhita Ibragimovna Musikhanova, born in 1951,
2. Mr Vakha Idisovich Musikhanov, born in 1949,
3. Ms Luiza Iznorovna Umysheva (Musikhanova), born in 1975,
4. Ms Markha Vakhidovna Musikhanova, born in 1995,
5. Ms Seda Vakhidovna Musikhanova, born in 1997,
6. Mr Nokha Vakhidovich Musikhanov, born in 2001,
7. Mr Naib Vakhidovich Musikhanov, born in 2002,
8. Ms Asiyat Idisovna Musikhanova, born in 1953,
9. Mr Valid Vakhayevich Musikhanov, born in 1980,
10. Mr Roman Vakhayevich Musikhanov, born in 1983,
11. Mr Timur Vakhayevich Musikhanov, born in 1986.
The applicants are Russian nationals and live in Urus-Martan, Chechnya. 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 two applicants are a married couple. They have four sons – the ninth, tenth and eleventh applicants and Mr Vakhid Vakhayevich Musikhanov, born in 1976. The latter was married to the third applicant and had four children with her – the fourth, fifth, sixth and seventh applicants (the youngest child was born a month after Vakhid Musikhanov’s disappearance). The eighth applicant is the second applicant’s sister.
1. Detention of Vakhid Musikhanov
On 9 November 2002, around 2 or 3 a.m., a group of armed men wearing camouflage uniforms and masks forcibly entered a private house at 6 Kavkazskaya Street, in which Vakhid Musikhanov and his family lived. Vakhid Musikhanov, his sister-in-law and the applicants, except for the second and eighth applicants, were inside the house at that moment. According to the applicants, the men who raided their house belonged to the Russian federal troops, since they spoke Russian without accent and were able to circulate freely during the curfew. In the Government’s submission, they were “unidentified persons in masks and camouflage uniforms armed with automatic firearms”.
The men, who had machine-guns and torches, did not produce their identity papers or any documents justifying their actions. They ordered everyone to lie down and searched the house. Then they blocked the women in one room and forced the Musikhanov men into another. The military ordered the Musikhanov men to remain silent and not to move and checked their identity documents. According to the tenth and eleventh applicants, when they slightly moved, the men hit them in the face with their machine-guns and kicked them with the result that the eleventh applicant started bleeding.
Having checked the documents, the intruders ordered Vakhid Musikhanov to get dressed and took him away. The first applicant attempted to obstruct the detention of her son, but the men stated that Vakhid Musikhanov would come back as soon as he showed them a certain building. The servicemen then jammed the house door from the outside with an iron bar. Several minutes later the eighth applicant who lived next door let the people out. The applicants have had no news of Vakhid Musikhanov thereafter.
2. The applicants’ search for Vakhid Musikhanov
On 9 November 2002, in the morning, the applicants went to the administration of the Urus-Martan District (администрация Урус-Мартановского района) and the military commander’s office of the Urus-Martan District (военная комендатура Урус-Мартановского района, “the Urus-Martan military commander’s office”) and enquired about Vakhid Musikhanov. They received no substantive information.
In the second applicant’s submission, he requested his distant relative who had acquaintances at the Urus-Martan military commander’s office to obtain information concerning the detention of his son. Several days later the relative told the second applicant that Vakhid Musikhanov had been apprehended on the basis of an anonymous letter, which had contained criminal charges against him, and was allegedly kept at the Urus-Martan military commander’s office. The second applicant also talked to a certain local official who confirmed that Vakhid Musikhanov was detained at the Urus-Martan military commander’s office. According to the SRJI, their organisation has at its disposal the personal data of the relative and the official, but they will not be disclosed for the time being to ensure the security of the said two persons and the applicants.
Since 9 November 2002 the applicants have repeatedly applied in person and in writing to various public bodies, including prosecutors at various levels, the President of Russia, administrative authorities of Chechnya, the Urus-Martan military commander’s office, the Urus-Martan Town Court. They were supported in their efforts by the SRJI. In their letters to the authorities, the applicants and the SRJI referred to the facts of Vakhid Musikhanov’s detention and asked for assistance and details of the investigation. Mostly these enquiries remained unanswered, or only formal responses were given by which the applicants’ requests were forwarded to various prosecutor’s offices for examination.
The applicants also applied in writing and visited a number of detention centres and prisons in the Northern Caucasus, but received no information concerning Vakhid Musikhanov.
3. Official investigation
On 15 November 2002 the prosecutor’s office of the Urus-Martan District (прокуратура Урус-Мартановского района, “the Urus-Martan prosecutor’s office”) instituted a criminal investigation into Vakhid Musikhanov’s disappearance under Article 126 (2) of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The file was given the number 61149.
In the context of the above proceedings, the Urus-Martan prosecutor’s office sent enquiries to heads of a number of State bodies, including the Urus-Martan military commander’s office, military unit no. 6779, the Urus-Martan Division of the Chechen Department of the Federal Security Service of Russia (отдел УФСБ РФ по ЧР в Урус-Мартановском районе, “the Urus-Martan Division of the FSB”) and district offices of the interior in Chechnya. The respective officials were requested to verify whether their subordinates had ever arrested Vakhid Musikhanov and on what ground, whether criminal proceedings had ever been brought against Vakhid Musikhanov and whether any measure of restraint had been ordered in this connection. On 19 November 2002 the Urus-Martan prosecutor’s office also requested the Ministry of the Interior whether Vakhid Musikhanov had any convictions.
On 20 and 23 November 2002 respectively the Urus-Martan Division of the FSB and military unit no. 6779 replied that their officers had not apprehended Vakhid Musikhanov and had no information as to his whereabouts. The Urus-Martan military commander’s office never answered.
On 4 December 2002 and 1 January 2003 respectively the Urus-Martan district office of the interior and the Shatoyskiy district office of the interior answered that their officers had never detained Vakhid Musikhanov and that he was not among their detainees. According to the applicants, the Urus-Martan prosecutor’s office informed them later that all the other district offices of the interior in Chechnya provided identical replies.
On 20 December 2002 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”) referred the second applicant’s application concerning the abduction of his son to the Urus-Martan prosecutor’s office “for investigation”. In reply, on 25 December 2002 the Urus-Martan prosecutor’s office stated that criminal case no. 61149 had been opened in connection with the abduction of Vakhid Musikhanov by “unknown armed men wearing camouflage uniforms”.
By a decision of 15 January 2003 the Urus-Martan prosecutor’s office acknowledged the first applicant as a victim in criminal case no. 61149.
On 21 January 2003 the Urus-Martan prosecutor’s office notified the first applicant that the criminal proceedings instituted in connection with her son’s abduction had been adjourned since the alleged perpetrators could not be found.
On 3 February 2003, in reply to the query of the Urus-Martan prosecutor’s office, the Urus-Martan district office of the interior stated that Vakhid Musikhanov’s whereabouts could not be established and that the search was in progress.
In a letter of 6 March 2003 the republican prosecutor’s office informed the second applicant that the criminal proceedings in case no. 61149 had been resumed on 26 February 2003 and that the term for the preliminary investigation had been extended until 26 March 2003. The letter also stated that the republican prosecutor’s office was closely supervising the investigation.
On 1 April 2003 the Administration of the Chechen Republic (Администрация Чеченской Республики) referred the second applicant’s application concerning the disappearance of his son to the republican prosecutor’s office and some military prosecutor’s office.
On 3 April 2003 the Urus-Martan prosecutor’s office notified the first applicant that the criminal investigation into Vakhid Musikhanov’s abduction had been suspended for failure to identify the culprits, but nevertheless the search for him was underway.
In a letter of 5 April 2003 the military prosecutor of the United Group Alignment (военная прокуратура Объединенной группы войск) transmitted the second applicant’s application to the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102).
On 7 April 2003 the second applicant requested the Urus-Martan prosecutor’s office to notify him of the latest developments in criminal case no. 61149 and to grant the status of victims to him and to the third applicant. In reply, in a letter of 18 April 2003, the Urus-Martan prosecutor’s office outlined the main procedural steps taken in the context of the criminal proceedings in case no. 61149 and informed the second applicant that they had been suspended on 26 March 2003, as those responsible had not been established.
On 25 April 2003 the republican prosecutor’s office, in reply to the second applicant’s query, re-stated that the investigation into his son’s abduction had been suspended on 15 January 2003 for failure to identify the alleged perpetrators and that the search for Vakhid Musikhanov was in progress.
In a letter of 15 May 2003 the Urus-Martan prosecutor’s office informed the third applicant that, although all the necessary investigative measures were being taken to find her husband and the persons who had abducted him, those measures had not yielded any results so far.
On 18 June 2003 the first applicant enquired of the Urus-Martan prosecutor’s office whether the second and third applicants had the status of victims in criminal case no. 61149. In a letter of 20 June 2003 the Urus-Martan prosecutor’s office informed her that she had been acknowledged as a victim in the said case and therefore had a right to access the case file. The letter provided no information as to whether the second and third applicants had ever been granted the status of victims in the above case.
According to the first applicant, she accessed the case file in July 2003 and found out that it only contained a transcript of her interrogation, queries sent by the Urus-Martan prosecutor’s office to various law-enforcement bodies and responses of some of those bodies.
On 3 July 2003, in reply of the third applicant’s application of 27 March 2003, the Urus-Martan military commander’s office informed her that her allegations of the abduction of her husband had been investigated and that their office possessed no information concerning her husband’s location, the grounds for his detention or the identities of the perpetrators.
On 5 November 2003 the SRJI applied to the Urus-Martan prosecutor’s office for information on the developments in criminal case no. 61149, requesting to resume the proceedings. On 27 November 2003 the republican prosecutor’s office replied that the preliminary investigation had been suspended on 26 March 2003, since no culprits had been established, and that the search for Vakhid Musikhanov continued.
Between 26 March 2003 and 9 August 2003 the proceedings remained suspended and it does not appear that there were any developments in the case.
In a letter of 9 August 2005 the Urus-Martan prosecutor’s office notified the first applicant that the preliminary investigation in case no. 61149 had been resumed on the same date.
According to the applicants, they had not been provided with any information concerning the progress in the investigation.
Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memorials dated 4 October and 3 November 2005 that the third applicant’s written complaint concerning her husband’s abduction had been received by the Urus-Martan prosecutor’s office on 10 November 2002 and the criminal proceedings in the above connection had been instituted on 15 November 2002, under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping). The investigation had then been suspended on 15 January and 26 March 2003 and 9 September 2005 and resumed on 26 February 2003, 9 August and 21 October 2005, but failed to identify those responsible so far.
In the Government’s submission, the investigating authorities questioned the first and the third applicants on 26 November 2002 and granted the status of victim to the first applicant on 15 January 2003. The second applicant was questioned as a witness on 26 or 28 February 2003. Apart from the first three applicants the authorities also interrogated two neighbours of the Musikhanov family. It does not appear that any other witnesses were questioned in the course of the investigation.
According to the Government, on numerous occasions the investigators had sent queries to various State bodies. In particular, on 19 November 2002 the investigator in charge requested information concerning Vakhid Musikhanov’s whereabouts from the Urus-Martan Division of the Federal Security Service, the military commander’s office of the Urus-Martan District and the head of the temporary department of the State bodies and the units of the Russian Ministry of the Interior in Chechnya. The replies from the said agencies were received on 24 and 25 November 2005, stating that the applicant’s relative had never been detained by any of them, that no special operations had been carried out in his respect or criminal proceedings brought against him. On 20 November 2002 the investigator in charge sent similar queries to various offices of the interior of the Chechen Republic. Between 20 November 2002 and 1 January 2003 he received replies identical to those mentioned above. On 26 March 2003 the investigating authorities sent queries to the head of the United Group Alignment and the military commander’s office of the Russian Ministry of Defence concerning the possible implication of military personnel in the detention of the applicant’s relatives. It is unclear whether any reply had been received. In the period between 12 and 24 August 2005 the investigator in charge requested district and town prosecutors in Chechnya to submit information concerning unidentified corpses so as to establish whether Vakhid Musikhanov’s body could be found among them. Also, between 25 August and 7 September 2005 the investigator in charge sent queries to various detention centres in the regions adjacent to the Chechen Republic as to whether Vakhid Musikhanov was listed among their detainees. It is unclear whether any of the above queries were answered.
Despite specific requests made by the Court on two occasions, the Government refused to submit a copy of the entire investigation file in case no. 61149, stating with reference to the information obtained from the Prosecutor General’s Office 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.
They only submitted several documents, which included:
(a) a procedural decision of 15 November 2002 to institute criminal proceedings in connection with Vakhid Musikhanov’s disappearance;
(b) a decision of 15 January 2003 declaring the first applicant a victim in case no. 61149;
(c) procedural decisions suspending and reopening the investigation in case no. 61149;
(d) an investigator’s decision of 9 August 2005 to take up case no. 61149;
(e) letters informing the first and second applicants of the suspension and re-opening of the investigation in criminal case no. 61149.
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 applicants’ applications to a court
On 25 November 2002 the third applicant applied to the Urus-Martan Town Court seeking to have the whereabouts of her husband established. It does not appear that this request was answered.
On 20 August 2003 the SRJI, acting on the applicants’ behalf, requested the President of the Urus-Martan Town Court to inform the third applicant whether her application of 25 November 2002 had been examined and, if so, what the results of that examination were.
On 10 December 2003 the Urus-Martan Town Court, upon the third applicant’s request, certified the fact that her husband, Vakhid Musikhanov, was a missing person, having confirmed that the latter had disappeared after having been abducted by “unknown armed men” on 9 November 2002.
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 information 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 relative, Vakhid Musikhanov. The applicants submitted that the circumstances of his disappearance and the long period during which his whereabouts could not be established indicated that Vakhid Musikhanov 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 referred to Article 3 of the Convention, claiming that they had suffered severe mental distress and anguish in connection with the disappearance of their close relative and on account of the State’s failure to conduct a thorough investigation in this respect.
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 Vakhid Musikhanov.
4. The applicants relied on Article 6 § 1 of the Convention in 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 that they had no effective remedies in respect of their complaints under Articles 2, 3 and 5, contrary to Article 13 of the Convention.
6. The applicants invoked Article 14 in conjunction with Articles 6 § 1 and 13 of the Convention, stating that the above violations had occurred because of their Chechen ethnic origin and residence in Chechnya.
7. Lastly, in their observations of 21 December 2005 the applicants complained that the Government’s refusal to submit a file in criminal case no. 61149 was in breach of the State’s obligations under Article 34 and Article 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 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 Vakhid Musikhanov had been detained in violation of the guarantees of Article 5 of the Convention. Lastly, the applicants complained 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.”
“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. Validity of the powers of attorney of the fourth, fifth, sixth and seventh applicants
1. Submissions by the parties
The Government argued that the powers of attorney issued by the fourth to seventh applicant in respect of the lawyers of the SRJI were invalid. They pointed out that the above-mentioned four applicants were minors and under relevant provisions of the Russian Civil Code had no legal capacity to participate in any transactions, in particular to enter into a contract of agency, which, in the Government’s view, the said four applicants had done when they had issued powers of attorney. The Government insisted that only the parents of the fourth, fifth, sixth and seventh applicants could participate in any transactions on their behalf. They argued therefore that the lawyers of the SRJI indicated in the powers of attorney should not be regarded as the representatives of the said four applicants before the Court.
The applicants submitted that the powers of attorney of the minor four applicants had been issued and signed by the third applicant, who was their mother, and was therefore entitled under the Russian law to undertake any actions on their behalf. The applicants also stated that the Convention did not set any age requirements for individuals whishing to file their applications to the Court.
2. The Court’s assessment
Leaving aside the question whether the Court should be bound by provisions of the domestic law of the respondent State in a situation such as the present one, the Court observes that the powers of attorney issued on behalf of the fourth, fifth, sixth and seventh applicants are duly signed by the third applicant, their mother, who, according to the Government, is entitled under the Russian law to participate in any transactions on her minor children’s behalf. In such circumstances the Court has no grounds to question the validity of the powers of attorney submitted by the fourth to seventh applicants.
Accordingly, the Government’s objection must be dismissed.
B. Exhaustion of domestic remedies
1. Submissions by the parties
The Government disputed the admissibility of the application on the ground of the applicants’ alleged failure to exhaust the domestic remedies available to them. They argued that the investigation had not been completed yet and that it had been open to the applicants to lodge court complaints about the actions or omissions of the investigating or other law-enforcement authorities, but they had not availed themselves of that remedy.
The applicants disputed the Government’s objection. They stated 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 they 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 also contended that they had not been obliged to pursue the remedy invoked by the Government since its effectiveness in their situation had been rather doubtful. They insisted that they had exhausted all possible remedies which, however, had proved futile.
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.
C. 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 Russian authorities were not responsible for the actions of unidentified persons who had abducted Vakhid Musikhanov and that until the circumstances of his abduction, and the identity of the persons involved, had been established, there were no grounds to claim that Vakhid Musikhanov’s right to life secured by Article 2 of the Convention had been breached by the State. They submitted to that end that members of illegal armed formations within the territory of the Chechen Republic resorted to various methods of concealing the facts of their participation in such groups and recruitment of new members, such as “deliberate dissemination of false information concerning their disappearance from the places of their permanent residence and implication of federal forces to such disappearance”. Moreover, the aforementioned false information also used by “representatives of international terrorist organisations, leaders of illegal armed groups and their emissaries abroad or the purpose of propaganda against the State agencies of Russia”. 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 submitted that “the materials of the criminal case do not make it possible to assess the degree of the applicants’ mental suffering”, that the domestic authorities had not taken any actions aiming at “humiliating, punishing or torturing” the applicants, and that therefore Article 3 of the Convention was inapplicable in the applicants’ situation.
In the Government’s submission, there was no evidence to confirm that the applicants’ relative had been detained in breach of the guarantees set out in Article 5 of the Convention. Vakhid Musikhanov was not listed among the persons being kept in detention centres and his right to liberty was not been breached by the Russian authorities.
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 investigation into the abduction of the applicants’ relative had been instituted in due course and “the relatives of the missing person 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. In their opinion, it was beyond reasonable doubt that the men who had apprehended and taken away their relative on 9 November 2002 had represented federal forces, and that, following his arrest, Vakhid Musikhanov had been under the control of the State. The applicants also claimed that their relative had been apprehended in life-endangering circumstances, since it was widespread practice in Chechnya that people apprehended by State agents were deprived of their lives immediately, or shortly after being apprehended, rather than being taken to detention centres. They also pointed out that the Government had failed to give any plausible explanation as regards Vakhid Musikhanov’s fate. The applicants thus argued that the fact that Vakhid Musikhanov remained missing for several years proved that he had been killed, and that therefore there had been a violation of Article 2 of the Convention on that account.
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 the investigation had fallen short of the requirements of domestic law and Convention standards. In particular, it had been pending for over three years but had not brought any tangible results so far, having been repeatedly suspended and reopened. The applicants contended that the main investigative actions had been taken only after the communication of the present application to the respondent Government on 7 June 2005. Furthermore, the investigating authorities had failed to inform the applicants about the decisions concerning the adjournment and reopening of the investigation or its progress and had not granted the first applicant the status of victim of a crime until 15 January 2003, i.e. two months after the criminal proceedings had been instituted. The applicants also insisted that the authorities had failed to take all possible measures to establish the identity of the alleged perpetrators, and, in particular, had not checked the possible involvement of federal military personnel in their relative’s abduction. In support of their argument regarding the inefficiency of the investigation, they also referred to the Government’s refusal to submit a copy of the file in the criminal case concerning Vakhid Musikhanov’s disappearance.
The applicants further 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 subsequently argued that Vakhid Musikhanov’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.
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 over three years without any progress and that all 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 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).
3. The applicant complained that they had been discriminated against in the enjoyment of their Convention rights, contrary to Article 14 of the Convention, which reads as follows:
“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government contended that the applicants had never been discriminated against in the enjoyment of their Convention rights on any ground. The applicants maintained that the aforementioned violations of their rights had occurred because they were ethnic Chechens.
The Court observes that no evidence has been submitted in its possession that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus 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.
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 Nielsen Christos Rozakis
MUSIKHANOVA AND OTHERS v. RUSSIA DECISION
MUSIKHANOVA AND OTHERS v. RUSSIA DECISION