AS TO THE ADMISSIBILITY OF
Application no. 29361/02
by Khamzat Khasanovich KUKAYEV
The European Court of Human Rights (Fifth Section), sitting on 23 October 2006 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr A. Kovler, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 April 2002,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Khamzat Khasanovich Kukayev, is a Russian national who was born in 1945 and lives in Grozny. He is represented before the Court by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) are 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 applicant is the father of Aslanbek Kukayev, born in 1976, who at the material time was an officer of the special police unit of the Chechen Department of the Interior (отряд милиции особого назначения при Управлении внутренних дел РФ по Чеченской Республике – “the Chechen OMON”) and lived in Grozny.
In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic.
1. The events of 26 November 2000
(a) The applicant’s version
The applicant did not witness the detention of his son, and the following account is based on eye-witness statements submitted by him, including those of two police officers, Mr G. and Mr Dzh.
On the morning of 26 November 2000 the applicant’s son, along with another police officer, D., left home to report for duty at the headquarters of the Chechen OMON in the town of Gudermes. They were both wearing camouflage uniforms and had their OMON officers’ identification cards.
At around 12 noon the applicant’s son and D. were passing through Grozny central market in D.’s white VAZ 2106 Zhiguli car. At the same time federal servicemen were carrying out a special (“sweeping-up”) operation in the vicinity of the marketplace. According to Mr G.’s statement, the military personnel belonged to a “mobile detachment” (мобильный отряд) stationed in the central part of Grozny.
The servicemen blocked D.’s vehicle and then took Aslanbek Kukayev and D. away in the direction of the headquarters of the federal military detachment Don-100. Some time later the soldiers seized the Zhiguli car, which subsequently disappeared. The applicant submitted that the car had later been seen on several occasions at the Khankala federal military base.
At around 1 p.m. the applicant’s son, D. and several other police officers of Chechen origin detained during the operation, including Mr Dzh., were put into a GAZ 66 truck with an emblem representing a rampant horse on its doors, which then drove off. According to Mr Dzh., the servicemen who apprehended them were hostile and offensive.
The truck having reached Ordzhonikidze Avenue in the centre of Grozny, the officer in charge ordered that Aslanbek Kukayev and D. be taken out of the truck. Mr Dzh. saw the applicant’s son and D. being escorted by six federal servicemen towards the former Grozny Educational College building. The vehicle then drove on.
Several policemen of Chechen origin were detained during the “sweeping-up” operation at Grozny central market on 26 November 2000. Some of them were released later that day, including Mr Dzh. Aslanbek Kukayev and D. disappeared after being apprehended.
(b) The Government’s version
The Government relied on a reply from the Prosecutor General’s Office (Генеральная прокуратура РФ) to the effect that, on 26 November 2000, during daylight hours, “unidentified men wearing camouflage uniforms and armed with firearms” had abducted the applicant’s son and several other persons near Grozny central market. The bodies of those abducted were subsequently found at various times in Grozny.
They also submitted, with reference to information provided by the Chechen Department of the Federal Security Service (Управление Федеральной службы безопасности по Чеченской Республике), that the federal forces had not conducted any special operations in the vicinity of Grozny central market on 26 or 27 November 2000.
2. The applicant’s search for his son and the official investigation
According to the applicant, he learnt about his son’s detention from his neighbour the next day. Immediately thereafter, he went to Gudermes, to the headquarters of the Chechen OMON, and inquired about his son. He was told that neither his son nor D. had reported for duty.
The applicant and his younger son also went to Grozny central market and inquired of those who had been there on 26 November 2000 about Aslanbek Kukayev. In particular, they questioned servicemen from the mobile detachment, showing Aslanbek Kukayev’s photograph; however, the servicemen refused to talk to them.
The applicant further applied repeatedly to a number of State bodies, including prosecutors at various levels, the Grozny military commander’s office (комендатура г. Грозного), the regional and federal departments of the Ministry of the Interior, the Federal Security Service (Федеральная служба безопасности РФ – “the FSB”), the Special Representative of the Russian President in Chechnya for Rights and Freedoms (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) and the Russian President’s Office (Администрация Президента РФ). In his letters to the authorities the applicant referred to the facts of his son’s detention and asked for assistance and details of the investigation. In most cases he received formal responses informing him that his requests had been forwarded to various prosecutors.
On 13 December 2000 the Grozny prosecutor’s office (прокуратура г. Грозного) commenced a criminal investigation into the disappearance of the applicant’s son and D. 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 12332.
On 29 January 2001 the Grozny prosecutor’s office joined the aforementioned criminal case with several other cases opened in connection with abductions near Grozny central market on 26 November 2000 and the subsequent disappearance of a number of persons, on the ground that all those offences had been committed by the same persons. The case file was assigned the number 12331.
On 30 January 2001 the Chechen Department of the FSB forwarded the applicant’s letter to the military prosecutor of military unit no. 20102 (военная прокуратура – войсковая часть 20102).
On 13 February 2001 the Grozny prosecutor’s office suspended the investigation in criminal case no. 12331 for failure to identify those responsible.
On the same date the head of the special police unit at the Chechen Department of the Interior issued the applicant with a certificate confirming that Aslanbek Kukayev had been an officer of that unit since 24 August 2000 and that he had disappeared on 26 November 2000 in the vicinity of Grozny central market.
By letter of 22 February 2001 the military prosecutor of military unit 20102 returned the applications of the mothers of Aslanbek Kukayev and D. to the Grozny prosecutor’s office. The letter stated that the said applications had been forwarded to the military prosecutor of military unit no. 20102 by mistake, since no involvement of military personnel in the alleged offence had been established.
On 18 April 2001 the Grozny prosecutor’s office resumed the investigation in criminal case no. 12331.
3. Discovery of the body of the applicant’s son
It appears that at some point in 2001 a new mobile detachment replaced the one stationed in the central part of Grozny.
On 22 April 2001, during the inspection of the area for which they were responsible, the servicemen of the mobile detachment found two corpses bearing signs of a violent death in the basement of Grozny Educational College in Ordzhonikidze Avenue. The servicemen notified a district office of the Department of the Interior and the Grozny prosecutor’s office. It appears that a forensic examination of the corpses was conducted later that day.
On 23 April 2001 the bodies were identified by relatives as those of Aslanbek Kukayev and D. On the same day the applicant buried his son.
According to the applicant, his son’s body was found 50 metres away from the place where Aslanbek Kukayev had last been seen alive on 26 November 2000. The applicant further submitted that both on 26 November 2000 and during the period thereafter the area in question had been under the firm control of the federal mobile detachment. He also claimed that the area had been tightly secured by the federal forces and inaccessible to civilians, and that even the police and officials of the prosecutor’s office had been required to obtain special leave to have access to the area on 22 April 2001. The applicant submitted a hand-drawn map of the area.
On 3 May 2001 the Forensic Examinations Bureau of the Chechen Republic (Республиканское бюро судмедэкспертизы) issued a medical death certificate (врачебное свидетельство о смерти) in respect of Aslanbek Khamzatovich Kukayev, born in 1976. The document stated that the applicant’s son had died on 26 November 2000 as a result of gunshot wounds.
On 1 June 2001 the registry office of the Leninskiy District of Grozny certified the death of the applicant’s son. The date and the place of death were recorded as 26 November 2000, Grozny.
On 7 August 2001 a military expert medical commission of the Chechen Department of the Interior (военно-врачебная комиссия УВД МВД РФ по Чеченской Республике) issued a certificate stating that Aslanbek Kukayev, an officer of the special police unit of the Chechen Department of the Interior, had died on 26 November 2000 as a result of a “gunshot wound to the head and fracture of the cranial bones”.
On 10 August 2001 the commander of the OMON of the Chechen Republic drew up a report on the result of the internal investigation into the death of their officer, Aslanbek Kukayev. The report stated that on 26 November 2000 Aslanbek Kukayev and D. had left for the Zavodskoy District of Grozny to perform an operational task and had gone missing during a special “sweeping-up” operation in the vicinity of Grozny central market. On 22 April 2001 their bodies, bearing signs of a violent death, had been found in the basement of one of the destroyed buildings in Ordzhonikidze Avenue.
According to the Government, at some point the applicant and his wife had received compensation in connection with the death of their son, a police officer on duty. Under domestic law such compensation was payable for the loss of a breadwinner and comprised for each of them insurance benefits of 19,786.25 Russian roubles (“RUR”, approximately EUR 580), a lump-sum payment of RUR 44,365.80 (approximately EUR 1,300) and a pension in the amount of RUR 1,078.22 (approximately EUR 30).
4. Further investigation
By letter of 21 May 2001 the Grozny prosecutor’s office informed the applicant, in reply to his query, that on 12 May 2001 the file in criminal case no. 12331 concerning the disappearance of Aslanbek Kukayev and the subsequent discovery of his body had been sent to the military prosecutor of military unit no. 20102 for further investigation.
On 1 July 2001 the Grozny prosecutor’s office informed the applicant that criminal proceedings in case no. 12331 had been suspended on 28 May 2001 on the ground of failure to identify those responsible.
On 7 August 2001 the Office of the Russian President forwarded the applicant’s complaint to the Prosecutor General’s Office.
In a letter of 21 August 2001 the Southern Federal Circuit Department of the Prosecutor’ General Office (Управление Генеральной Прокуратуры РФ в Южном федеральном округе) informed the applicant that his complaints concerning the ineffective investigation into the abduction of his son had been forwarded to the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики).
On 24 August 2001 the Russian Presidential Commission on Rights and Freedoms (Комиссия по правам человека при Президенте РФ) forwarded the applicant’s complaint concerning the ineffective investigation into the killing of his son to the Prosecutor General’s Office for examination. The latter, in its turn, forwarded the complaint to the prosecutor’s office of the Chechen Republic on 3 September 2001.
By letter of 10 September 2001 the prosecutor’s office of the Chechen Republic requested the Grozny prosecutor’s office to send them the file in criminal case no. 12331 so as to enable them to investigate the applicant’s complaints relating to the ineffective investigation into his son’s death.
On 10 October 2001 the Ministry of the Interior informed the applicant that his complaint had been sent to the prosecutor’s office of the Chechen Republic for examination.
On the same date the prosecutor’s office of the Chechen Republic forwarded case file no. 12331, comprising 222 pages, to the Grozny prosecutor’s office for further investigation. The latter reopened the proceedings instituted in the above-mentioned criminal case on 15 October 2001 and then adjourned them a month later on the ground that it was impossible to identify the perpetrators. At some point the case file was referred to the prosecutor’s office of the Zavodskoy District of Grozny (прокуратура Заводского района г. Грозного – “the Zavodskoy District prosecutor’s office”).
On 15 November 2001 the prosecutor’s office of the Chechen Republic referred the applicant’s complaint to the Grozny prosecutor’s office.
On 25 March 2002 the Grozny prosecutor’s office informed the applicant that the criminal proceedings instituted in connection with the abduction and killing of his son had been suspended, as it was impossible to identify the perpetrators, and that all possible steps in the latter respect had been taken.
It does not appear that any investigative activity took place between November 2001 and December 2005; the applicant’s attempts to have the criminal proceedings resumed proved unsuccessful.
On 4 November 2005 the present application was communicated to the Russian Government.
On 16 December 2005 the Zavodskoy District prosecutor’s office resumed the proceedings in criminal case no. 12331.
By decision of 22 December 2005 the investigator in charge, referring to the fact that, during the examination of the materials in case no. 12331 concerning the abduction of the applicant’s son and other persons, he had discovered that the bodies of the applicant’s son and D., bearing signs of violent death, had been found on 22 April 2001, ordered that criminal proceedings in the latter respect be instituted under Article 105 § 2 (a), (c) and (g) of the Russian Criminal Code (murder of two or more persons committed by a group in the act of kidnapping).
On 16 January 2006 the investigation in case no. 12331 was suspended, on the ground that it was impossible to identify those responsible.
On 1 March 2006 this last decision was set aside and the criminal proceedings were reopened.
Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memoranda dated 1 February and 4 April 2006 that, on 13 December 2000, the authorities had commenced an investigation into the abduction of the applicant’s son and D. and subsequently, following the discovery of their bodies, into their murder and the theft of D.’s car. The investigation had been suspended and resumed on several occasions, but had to date failed to identify the perpetrators. The investigation had been reopened most recently on 16 December 2005 and 1 March 2006 and was being supervised by the Prosecutor General’s Office. According to the Government, the applicant was duly informed about all decisions taken during the investigation.
The Government further submitted that the applicant had been interrogated on 27 January and 30 April 2001 and on 20 December 2005 and that his wife, Aslanbek Kukayev’s mother, had been questioned on 21 December 2005. According to the Government, the applicant had never made any statements concerning the fact that D.’s vehicle, which had disappeared on 26 November 2000, had later been seen at the Khankala federal military base. The applicant and his wife had been granted the status of victims on 20 and 21 December 2005 respectively and on 21 December 2005 had been declared as civil parties seeking damages in the criminal proceedings. Relatives of other persons kidnapped on 26 November 2000 had also been questioned. The investigating authorities had also questioned four persons, including Mr Dzh., all of whom, in the Government’s words, “were apprehended by the federal forces on 26 November 2000 during a special operation and were later released”, as well as four police officers, including Mr G., and the servicemen who had found the bodies of the applicant’s son and D. The Government did not specify on what date witness statements had been obtained and submitted that all the witnesses concerned had testified that they had no information regarding the perpetrators of the offences in question. According to the Government, the search for other witnesses in the case was currently underway.
They stated next that on 23 April 2001 the corpses of Aslanbek Kukayev and D., found on 22 April 2001, had been examined by forensic medical experts, who had drawn up a report on 17 May 2001 stating that the death of the aforementioned two persons could have been caused by injuries sustained as a result of firearms shots. Finally, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 19 December 2000, 3 January, 18 April, 8 May and 28 May 2001 and on 18 December 2005, and had undertaken other investigative measures; however, they did not specify what those measures had been.
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 Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses.
They also submitted several documents, “disclosure of which did not contravene the requirements of Article 161”. These included:
(a) copies of the reports of the two servicemen who had found the bodies of the applicant’s son and D. on 22 April 2001;
(b) procedural decisions of 10 and 15 October and 15 November 2001, 16 and 22 December 2005 and 16 January and 1 March 2006 suspending and reopening the investigation in case no. 12331;
(c) decisions granting the status of victims in case no. 12331 to relatives of some of the persons missing since 26 November 2000, but not to the applicant;
(d) letters dated 17 December 2005 notifying the applicant and D.’s mother of the transfer of the case to the Zavodskoy District prosecutor’s office;
(e) letters dated 2 March 2006 informing the applicant and relatives of other victims of the suspension of the investigation on 16 January 2006;
(f) further letters dated 2 March 2006 informing the applicant and other relatives that the investigation had been resumed on 1 March 2006.
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 applicant complained under Article 2 of the Convention of the violation of the right to life of his son, Aslanbek Kukayev. He claimed in that respect that the circumstances of his son’s apprehension clearly indicated that Aslanbek Kukayev had been detained and then murdered by federal servicemen. The applicant also complained that no proper investigation had been carried out into his son’s death.
2. The applicant relied on Article 3 of the Convention, stating that he had suffered severe mental distress and anguish as a result of the disappearance and killing of his son and on account of the State’s failure to conduct a thorough investigation in that respect.
3. The applicant further alleged that there were no effective remedies in respect of the above violations of his rights, contrary to Article 13 of the Convention.
4. Lastly, in his observations of 16 May 2006, the applicant claimed that the Government’s refusal to submit a file in criminal case no. 12331 was in breach of the State’s obligations under Article 34 and Article 38 § 1 of the Convention.
1. The applicant complained under Article 2 of the Convention that his son had disappeared after having been apprehended by representatives of the federal forces and had later been found dead, and that the domestic authorities had failed to carry out an effective investigation into the matter. The applicant also claimed that, as a result of his son’s disappearance and death and the State’s failure to investigate those events properly, he had endured mental suffering in breach of Article 3 of the Convention. Lastly, he complained that he had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention. The relevant parts of the respective Articles 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.”
“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.”
1. Exhaustion of domestic remedies
(a) Submissions by the parties
The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the abduction and death of the applicant’s son had not yet been completed. They further argued that it had been open to the applicant to file court complaints about the allegedly unlawful detention of his son or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities; however, he had not availed himself of any such remedy. The Government also enclosed a number of letters from various higher courts in Russia, stating that the applicant had never lodged complaints regarding his son’s detention or the authorities’ inactivity with the respective courts.
The applicant disputed that objection. He claimed that the fact that the investigation into the circumstances of the disappearance and death of his son was still pending cast doubt upon its effectiveness and that, in any event, he had not been informed of the conduct of the investigation, and therefore had been unable to appeal in time against decisions taken in the context of the investigation. The applicant also contended that the Government had not demonstrated that the remedies to which they had referred were effective and, in particular, were capable of leading to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints under Article 2 of the Convention.
(b) 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.
2. As to the merits of the applicant’s complaints
(a) The Government
The Government acknowledged the fact that the applicant’s son was dead, but insisted that there were no grounds for holding the State liable for the alleged violation of his right to life. In that connection they relied on the reply of the Prosecutor General’s Office to the effect that the investigation had obtained no evidence that Aslanbek Kukayev had been abducted by representatives of the federal forces; they also relied on information provided by the Chechen Department of the FSB stating that there had been no special operation in the vicinity of Grozny central market on 26 or 27 November 2000. The Government further asserted that members of illegal armed formations within the territory of the Chechen Republic had on numerous occasions used forged police officers’ identity cards to enter dwellings of local residents, seize them and kill them. In any event, the applicant’s claims for compensation for pecuniary and non-pecuniary damage in connection with the abduction and killing of his son were unfounded, given that he had already received compensation under national law.
As regards the procedural aspect of Article 2 of the Convention, the Government claimed that the investigation into Aslanbek Kukayev’s death had met the Convention requirement of effectiveness, as all measures provided for by national law were being taken to identify the perpetrators. According to the Government, the length of the investigation was justified in the light of the complicated situation in Chechnya.
They further argued that the investigation had not established that the applicant had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention. In the Government’s view, the investigation had not breached the requirements of that provision. They also claimed that “the perception of events is a very personal matter depending on emotional and other specific features of an individual’s personality and relates in fact to the field of psychology”, and that therefore “it is impossible to assess the degree of the applicant’s mental suffering from the views of the investigating officers”, the latter being responsible only for investigating criminal offences.
In the Government’s submission, the applicant had had effective remedies at his disposal as required by Article 13 of the Convention and the authorities had not prevented him from using them. In particular, the applicant had received reasoned replies to all his complaints lodged in the context of the criminal proceedings. Besides, the applicant had had the opportunity to challenge the actions or omissions of the investigating authorities before military prosecutors at various levels or before the Prosecutor General’s Office, and also before the different instances of the military courts and the Supreme Court of Russia. The Government corroborated their submissions regarding the existence of effective domestic remedies in Russia with copies of domestic court decisions taken in unrelated sets of civil or criminal proceedings. These included three first-instance judgments by which federal servicemen, privates or junior officers had been convicted of criminal offences committed in the Republic of Ingushetia or the Chechen Republic; a first-instance judgment and appeal decision awarding compensation for property damage inflicted by servicemen in Ingushetia; a first-instance judgment and appeal decision awarding damages to the first applicant in Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, judgment of 24 February 2005) in connection with the death of his relatives in Chechnya; and a first-instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into a person’s abduction in the Republic of Karachayevo-Cherkessia, the person in question having subsequently been released.
(b) The applicant
The applicant contested the arguments advanced by the Government and maintained his complaints.
Firstly, he claimed that it was beyond reasonable doubt that his son had been detained and killed by representatives of the federal forces. In particular, he pointed out that the fact that his son had been abducted and then found dead, and also the fact that the abduction had taken place near Grozny central market on 26 November 2000, had never been disputed by the Government. Furthermore, it had been formally certified that the applicant’s son had been killed on the day on which he had been detained, 26 November 2000, and the applicant had adduced written statements from three eye-witnesses who had testified that, on the aforementioned date, the applicant’s son had been apprehended by federal servicemen. The applicant also contended that the Government’s reference to the fact that the applicant and his wife had been paid a certain amount in connection with their son’s death was irrelevant in the circumstances of the present case, given that such payments were usually made to family members of any police officer who died on duty, without the question of State responsibility for the death being considered.
The applicant further argued that the investigation in the present case could hardly be regarded as effective, according to the Convention standard. Although it had been pending for over five years, having been suspended and reopened on six occasions, it had not so far resulted in the identification and punishment of those responsible, despite abundant evidence pointing to the alleged perpetrators, including evidence indicating the military unit to which they belonged, its location and emblem. Moreover, the investigating authorities had failed to undertake a number of essential actions, namely to examine the scene of the crime adequately, to perform ballistic tests, to find and question eye-witnesses to the abduction of the applicant’s son and to investigate the applicant’s allegations that the car in which his son had left on the day of his disappearance had later been seen at the Khankala federal military base. The authorities had also failed to treat the investigation as urgent and to keep the applicant abreast of the latest developments in the case. The applicant further pointed out that, even though Aslanbek Kukayev’s body had been found on 22 April 2001, the proceedings in connection with the murder of the applicant’s son, as opposed to his abduction, had not been commenced until 22 December 2005.
The applicant maintained that he had endured severe mental suffering falling within the scope of Article 3 of the Convention on account of the fact that for several months he had had no information about his son and that his attempts to find Aslanbek Kukayev and later to have his death investigated had been paid scant attention by the State authorities.
The applicant further argued, relying on Article 13 of the Convention, that the domestic remedies usually available had proved ineffective in his case, given that the investigation had been pending for over five years without any progress and that he had never been properly informed of the progress of the investigation. With regard to the copies of the court decisions produced by the Government in support of their assertion as to the existence of effective remedies in Russia, the applicant contended that the decisions given in civil cases were irrelevant, as, according to the Court’s well-established practice, alleged violations of Article 2 and 3 of the Convention could not be remedied merely by an award of damages to the relatives of the victims in civil proceedings. In so far as the Government relied on judgments given in criminal cases, the applicant submitted that these were just a few exceptions and that, in reality, there existed an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya.
(c) The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. Consequently, it concludes that 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.
For these reasons, the Court unanimously
Joins to the merits the Government’s objection concerning non-exhaustion of domestic remedies;
Declares the application admissible, without prejudging the merits of the case.
Claudia Westerdiek Peer Lorenzen
KUKAYEV v. RUSSIA DECISION
KUKAYEV v. RUSSIA DECISION