AS TO THE ADMISSIBILITY OF
Application no. 69480/01
by Turko Saidalviyevich LULUYEV and Others
The European Court of Human Rights (First Section), sitting on 30 June 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 24 November 2000,
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 first applicant, Mr Turko Saidalviyevich Luluyev, is a Russian national, who was born in 1979 and lives in Gudermes, Chechnya. He is joined in his application by his following relatives: two brothers S.S.L. and A.S.L., his sister Z.S.L., his grandfather S.G. and grandmother G.B. and his three uncles M.G., Kh.G. and S.G., who requested that their names should not be disclosed. They are represented before the Court by Gareth Peirce, a lawyer practising in London, United Kingdom. She is assisted by the Stichting Chechnya Justice Initiative, an NGO based in the Netherlands with a representation office in Russia. The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts surrounding the abduction and killing of the applicants' relative, Nura Luluyeva, and the ensuing investigation are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
1. The abduction of Nura Luluyeva and the investigation
The applicants live in Gudermes, Chechnya. The first applicant's father worked in the law-enforcement bodies, as a judge, and in 2002 became the chairman of a district court in Chechnya. His mother was a nurse and a kindergarten teacher. He has two brothers and a sister, who join him in the submission of this application.
On 3 June 2000 the first applicant's mother, Nura Said-Alviyevna Luluyeva, born in 1960, along with her two cousins, Markha Gakayeva and Raysa Gakayeva, went to the market place in the northern part of Grozny.
Later in the afternoon her husband was informed by neighbours that Nura Luluyeva, along with three other women, had been detained in the market by federal servicemen. At about 3 p.m. he went to the market place to find out what had happened.
He was told by eye-witnesses that between 8 and 9 a.m. that morning an armoured personnel carrier (APC) without clear hull number appeared at the market. Military servicemen wearing camouflage uniforms and masks detained several persons, mostly women, put sacks over their heads and loaded them into the APC. Someone apparently called the police from the Leninsky temporary District Department of Interior (VOVD), which was situated only a few hundred metres away from the scene. When the police appeared and tried to interfere, the military started shooting in the air using a machine gun, and then drove away.
The applicant's father went to the Leninskiy VOVD on the same day as well as the next day, 4 June 2000. The eye-witnesses, according to the applicants, varied in their estimate of the exact number of persons detained (between seven and eleven), but it was certain that Nura Luluyeva and her two cousins were among them.
Immediately after the detention the applicant's father started to search for his wife and her cousins. He assisted the police officers in questioning the eye-witnesses. He noted the presence of the Ministry for Emergency Situations (Emercom) representatives and the deputy mayor of Grozny at the scene.
Starting from 3 June 2000 the applicant's father has on numerous occasions applied to various authorities, requesting information about the whereabouts of Nura Luluyeva and her relatives. He addressed the prosecutors of various levels, the Federal Security Service (FSB), various departments of the Ministry of Interior and the Ministry of Defence, the Special Representative of the Russian President in the Chechen Republic for rights and freedoms, etc. The applicants have submitted to the Court copies of his letters to various Russian authorities, to the media and public figures. The family members also personally visited detention centres and prisons in Chechnya and in the northern Caucasus.
The applicants received very little substantive information from the official bodies about the investigation into Nura Luluyeva's disappearance. On several occasions they received copies of letters from various authorities directing their complaints to the Chechnya Republican Prosecutor's Office and to the Grozny Town Prosecutor's Office.
Following the applicants' appeals, on 20 June 2000 the applicant's father was called to the Chechnya Republican Prosecutor's Office and questioned. On 21 June 2000 the Chechnya Republican Prosecutor's Office forwarded the application and the transcript of the questioning to the Grozny Town Prosecutor's Office.
On 23 June 2000 the Grozny Town Prosecutor's Office opened criminal investigation no. 12073 under Article 126 part 2 of the Criminal Code - kidnapping. The applicants' family was informed accordingly on 4 July 2000. Two months later the case was adjourned, but the applicants were not informed of this and only found out about the adjournment later. None of the family members was questioned during those two months.
On 25 June 2000 the Chief of the Leninskiy VOVD informed the acting head of the FSB Department for Chechnya that N. Luluyeva, M. Gakayeva and R. Gakayeva were not listed among the detained persons in the Leninskiy ROVD. Also on 25 June the military commander of the Leninskiy District of Grozny informed the FSB Department for Chechnya that the said persons had not been detained by the district military commander's office.
On 30 June 2000 the applicants were informed by the Chechnya Department of the FSB that N.S. Luluyeva and her relatives R. Gakayeva and M. Gakayeva had not been detained on 3 June 2000 by the law-enforcement bodies, including the FSB and the Ministry of Defence forces. No further information was available about these persons.
On 31 August 2000 the applicant's father applied to the Chechen Republican Prosecutor. He complained about the decision to adjourn the investigation and raised, inter alia, the following points: he had not been granted victim status, had not been questioned, no necessary investigative actions and attempts to establish the whereabouts of the missing persons had taken place. The applicant's father referred to the witnesses' accounts that had noted the APC hull number as 110 and requested the authorities to establish the location of the vehicle, to question himself and the husbands of the two other missing women, to request information from the FSB and the Ministry of Interior about “special operations” carried out in Grozny on that day, etc. In reply, the Office of the Chechen Republican Prosecutor informed the applicants that the decision to adjourn the investigation had been quashed and the case had been forwarded to the Grozny Town Prosecutor's office for further investigation.
On 5 November 2000 the Office of the Chechnya Republican Prosecutor informed the applicant's father in response to his complaint that the criminal investigation into the kidnapping of Nura Luluyeva and her cousins had been taken under the special control of the Office. The letter further stated that “specific measures had been undertaken to intensify the investigation and to solve the circumstances of the crime.”
On 8 December 2000 the Office of the Chechnya Prosecutor informed the Special Representative of the Russian President in the Chechen Republic for rights and freedoms about the progress in several cases. Among others, the letter referred to the “kidnapping in Grozny at Mozdokskaya Street of Luluyeva N., Gakayeva R., Gakayeva M. and Tavzurkayev Z.”. Criminal investigation file no. 12073 had been opened by the Grozny Town Prosecutor's Office and the investigation was under the “special control” of the Office of the Chechnya Prosecutor.
On an unspecified date in 2000 the Deputy Head of the Administration of Chechnya sent a letter to the Chief Military Prosecutor of Russia, describing the circumstances surrounding the detention of Nura Luluyeva and other women by unidentified servicemen of the federal forces. The investigation by the local prosecutors proved ineffective, and was adjourned. On that account, he requested the case to be transferred to the Chief Military Prosecutor's Office for investigation.
On 16 January 2001 the Office of the Chechnya Republican Prosecutor informed the first applicant's father that the criminal investigation conducted so far had been reassessed. Additional questions had been put to the witnesses and requests about the whereabouts of the missing persons had been forwarded to all departments of the Interior in Chechnya, to the FSB, to the military prosecutor of military unit no. 20102, to the military commander of Grozny. The possible involvement of “certain detachments of the power structures” (“силовых структур”) in the kidnapping was being investigated.
On 5 February 2001 the applicant's father was informed by the Grozny Town Prosecutor's office that the investigation into the kidnapping of Nura Luluyeva had been adjourned under Article 195 part 3 of the Criminal Procedural Code (CCP) for failure to identify the culprits.
2. The discovery of Nura Luluyeva's body and further developments
On 24 February 2001 news came through that a mass grave had been uncovered in Dachnoye, an abandoned holiday village located less then one kilometre away from Khankala, the headquarters of the Russian military forces in Chechnya. Dozens of bodies, dumped in the village, had been collected and transferred to a temporary location in Grozny belonging to the Emercom. In early March a relative of Markha Gakayeva learned that three female bodies had been found there, which corresponded to the descriptions of the women detained on 3 June 2000.
On 4 March 2001 Nura Luluyeva's brother and three other relatives of the women went to the Emercom premises and identified the three bodies as those of Nura Luluyeva, Markha Gakayeva and Raisa Gakayeva. According to their accounts, the bodies were in an advanced stage of decomposition and could only be identified by their earrings and clothes. In order to identify them, Nura Luluyeva's brother went to fetch a relative who had been with the three women on 3 June 2000. She confirmed that the clothes and the earrings were the same as those worn by the deceased on the day of their detention. The bodies were blindfolded, which also corresponded to the description of their detention given by the eye-witnesses. This, in the applicants' view, indicated that they had been killed shortly after the detention.
On the same day, adhering to the religious custom to bury the bodies as soon as possible, the relatives sought and obtained permission to transfer the bodies for burial to the village of Noyber, situated about 15 km away from Gudermes. On 4 March 2001 an investigator from the Grozny Town Prosecutor's Office issued a note to one of Nura Luluyeva's relatives permitting the transportation of the bodies of Markha Gakayeva, born in 1962, Raisa Gakayeva, born in 1964 and Nura Luluyeva, born in 1960, from Grozny to the villages of Noyber and Engel-Yurt of the Gudermes district for burial.
The burial took place on 5 March 2001 in Noyber. The applicants and other members of the family came to Noyber, but it does not appear that they saw, inspected or made photographs of the bodies. It appears that a forensic report had been drawn up on the bodies prior to the burial, but it was only issued at a later date.
On 6 March 2001 the Interfax News Agency reported that the three women whose bodies had been discovered along with many others on the outskirts of Grozny had been identified by their relatives and buried in Noyber, Gudermes district. One of the victims was identified as Nura Luluyeva, who had been detained in June 2000 in Grozny by armed men in camouflage and had not been heard of since.
On 25 March 2001 the human rights NGO Memorial issued a press-release concerning the discovery of the mass grave in the suburbs of Grozny. It stated that at least 50 bodies had been found a few hundred metres away from the main Russian military base in Chechnya. On 28 February 2001 Memorial staff filmed the bodies at the Emercom location in Grozny. They reported that 17 bodies, identified by relatives, were those of persons detained by the Russian forces in unconnected incidents in 2000 - 2001. The case of Nura Luluyeva and three other women detained on 3 June 2000 was also reported.
On 31 March 2001 the Chechnya Republican Prosecutor's Office informed the applicants that the criminal investigation into the unlawful detention of Nura Luluyeva was being conducted by prosecutors from that Office. The investigation was seeking to establish the culprits. Further information would be communicated to the applicants.
On 9 April 2001 the civil registration office of Gudermes issued death certificate no. 212 for Nura Saidalviyevna Luluyeva, born in 1960. The date and place of death were recorded as 3 June 2000, Khankala.
On 12 April 2001 the Gudermes District Department of the Ministry of Health of Chechnya issued a medical death certificate in respect of Nura Luluyeva, born in 1960. It recorded the date and place of death as 3 June 2000, Grozny, Khankala. The cause of death was recorded as murder, and had been established by a forensic expert who found a gun shot entry wound to the head. The circumstances of the death were recorded as the “period of hostilities”.
In May 2001 the NGO Human Rights Watch issued a document entitled “Burying the Evidence: The Botched Investigation into a Mass Grave in Chechnya”. The document referred to the case of Nura Luluyeva and three other women detained with her. The document stated that 16 out of 19 identified bodies belonged to persons previously detained by the Russian forces. On 10 March 2001 the remaining bodies - over 30 - had been buried, without any further announcements, in the vicinity of Grozny. The document alleged that there had been an inadequate investigation into the circumstances of the deaths. In particular, it stated that the forensic examinations had not been carried out at all or only in a superficial manner. No detailed examination of the bodies took place, the bodies were not freed from foreign objects, such as clothes, ropes, pieces of cloth, no detailed descriptions of the wounds and other injuries had been made. Finally, the hasty burial of the bodies rendered further identification and investigation almost impossible.
On 26 May 2001 the head of the village administration of Noyber issued a certificate confirming that Nura Luluyeva's body had been buried in the village cemetery on 5 March 2001. It also confirmed that the costs of the funeral had been borne by the applicants' family.
On 21 August 2001 the Interfax News Agency reported on progress in the investigation of crimes committed in Chechnya by the federal troops. The Chechnya Republican Prosecutor, Vladimir Chernov, was reported as saying that the investigation was continuing into the circumstances of the deaths of 51 persons, whose bodies had been discovered in March on the outskirts of Grozny. 24 bodies had been identified by their relatives and buried. The Prosecutor stated that “there were no eyewitness reports that federal troops were responsible for the murders”. The main probability explored by the investigation was that the mass burial had been organised by the rebel fighters.
On 6 May 2002 the Chechnya Republican Prosecutor's Office replied to the NGO SRJI request for an update on the investigation into the criminal case no. 12073. The letter stated that a number of actions were being undertaken by the investigative authorities to establish the murderers of the three women.
In March 2003 the first applicant wrote to the Chechnya Republican Prosecutor. He indicated that the ongoing investigation was not effective as long as it attempted to prove that the abduction and murder were not committed by the military servicemen. He recalled that the persons who had abducted Nura Luluyeva and other women were driving an APC – a vehicle which only the military could have possessed, that the hull number of the APC has been noted. He further stated that the body was discovered within the security zone of the Khankala military base, under strict control of the military authorities. He recalled that the families have not received any substantial information about the investigation. In reply, on 24 April 2003, the Chechnya Republican Prosecutor's Office informed the first applicant that proceedings in the criminal investigation no. 12073 had been resumed and that he would be informed of further developments.
On 18 April 2003 the SRJI requested the Chechnya Republican Prosecutor to grant victim status in the proceedings to the first applicant and to provide an update about the investigation.
The Government submit in their Memorandum that on 1 October 2003 the investigation of the criminal case was again adjourned due to failure to identify the culprits. On 12 January 2004 this decision was quashed by the deputy Prosecutor of the Chechen Republic and the case was forwarded for further investigation. The supervising prosecutors on several occasions gave detailed orders to the investigators, but they brought no results. The Government did not submit copies of such orders to the Court. The Government explains that at the time when Nura Luluyeva was abducted a counter-terrorist operation was being conducted in Chechnya, which made the investigation and the identification of the culprits very difficult.
It appears that the investigation into Nura Luluyeva's death was adjourned and reopened seven or eight times. The investigation carried out by the Grozny Town Prosecutor's Office produced no tangible results. The investigation did not identify the persons or the detachment which was responsible for abduction and murder, and no one was charged with the crimes (see Part B below for a description of the documents in the investigation file).
B. Documents from the investigation file
The Government submitted some documents from the investigation file in criminal case no. 12073 which comprises three volumes, and a list of documents contained therein. According to the list, the first volume contained 169 documents, the second volume – 119 and the third volume – 80. Of those, only 17 documents were submitted to the Court. Notably, the Government did not submit copies of the decisions to adjourn and to reopen the proceedings indicating reasons, progress reports on the investigation, orders of the supervising prosecutors, descriptions of the bodies of Nura Luluyeva and two other women, or any documents related to an attempt to establish the authority or detachment which had detained them on 3 June 2000. When the Court reiterated its request for the remaining documents, the Government responded that their disclosure would be in violation of Article 161 of the Russian Code of Criminal Procedure and may prevent the investigation, as well as prejudice the rights and interests of the participants of the proceedings, including witnesses.
The documents submitted can be summarised as follows:
a) Decision to open a criminal investigation
On 23 June 2000 a prosecutor of the Grozny Town Prosecutor's Office opened criminal investigation file no. 12073 into the abduction on 3 June 2000 at about 9 a.m. of Nura Luluyeva and other persons by unidentified armed men, dressed in camouflage and driving an APC without hull numbers. The report further stated that, according to the eye-witnesses, officers of the nearby Leninskiy VOVD arrived at the scene and attempted to interfere, but were shot at by the armed persons. Requests for information forwarded to the local bodies of the interior, FSB and the military commanders' offices proved ineffective.
b) Description of the site
On 6 July 2000 an investigator of the Leninskiy VOVD examined the site at Mozdokskaya Street where Nura Luluyeva and other women had been detained. The investigators did not find anything worthy of reporting.
c) Statement by Nura Luluyeva's husband
In December 2000 an investigator of the Grozny Town Prosecutor's Office questioned the first applicant's father, the husband of Nura Luluyeva. He stated that on 3 June 2000 early in the morning his wife, together with her two cousins, Markha Gakayeva and Raisa Gakayeva, went to the Severny market in Grozny to sell cherries. At about noon on the same day another woman who had travelled with his wife, Nura Luluyeva's relative Kheda, came to his house and told him that in the morning while selling the cherries she saw an APC in the market and noted that Nura Luluyeva and other women were forced inside by armed men dressed in camouflage and wearing masks. According to Khava, other people tried to intervene, but the armed men shouted in Russian that they were conducting a special operation and shot above their heads with submachine-guns. Then there arrived servicemen from the Leninskiy VOVD, but they were also shot at from a machine gun. Then one person from the VOVD asked them who they were and one of the masked men showed him an identity card. Khava further told him that there also arrived servicemen of the Emercom but they were not allowed to approach. Another person in civilian clothes arrived and showed his identity card to one of the armed persons. They exchanged a few words and the man walked away. The APC with the detainees left. Kheda immediately returned to Gudermes and told the first applicant's father about his wife's detention.
The first applicant's father further explained that he had immediately gone to Grozny to find out about his wife's whereabouts. He had personally visited all the district departments of the interior in Grozny, the FSB office and the military commander's office. He did not find the authority responsible for his wife's detention. Some servicemen who were at that time serving in the Leninskiy VOVD on mission from the Yekaterinburg region were his acquaintances, because he had worked in the police in that region, and in July 2000 the head of the criminal police informed him that the hull number of the APC which had driven away his wife was 110. The policemen of the Leninskiy VOVD assured him that they were doing everything possible to find his wife.
On the same day he was granted victim status in the proceedings.
d) Statements by the witnesses of the detention and other victims
In July - November 2000 investigators of the Grozny Town Prosecutor's Office questioned several eye-witnesses of the events of 3 June 2000 and relatives of other persons who had been detained and “disappeared” on that day. The total number of persons detained is not apparent from the documents submitted, but it should be at least five.
Witness B., an employee of the district administration, stated in July 2000 that at about 8.30 – 8.45 on 3 June 2000 he was walking past the Leninskiy VOVD building and heard shooting nearby. Then he saw the policemen running there from the VOVD building. In about 200 metres he noted a group of military servicemen wearing balaclava masks, armed with sub-machine guns and portable grenade-launchers. Across from them there were standing the policemen from the VOVD, also armed with machine-guns. The witness walked up to the military, produced his identity card and one masked man, who identified himself as the senior of the group, told him that they were conducting a special operation and would deliver the detainees to the district military commander's office. The military did not have any signs or markings on their camouflage and did not identify themselves. The witness noted an APC standing nearby, but could not identify it.
Satsita T. was questioned in July 2000 about the circumstances of detention of her husband, Zavalu T. who had been detained together with Nura Luluyeva. The witness explained that her husband was a bus driver by profession, but had no work since the beginning of the first period of hostilities in 1994. Twice, in 1994-95 and in 1999-2000 they, with their two minor daughters, fled from Grozny because of the fighting. They returned to Grozny in March 2000, and the applicant worked as a cook in a café in their house. On 29 May 2000 she travelled to Nalchik to see a doctor, while her husband and two daughters remained at home. Her daughters told her that in the morning on 3 June 2000 her husband went outside with a woman who had asked for help, was detained by the military personnel in masks at an ambush set up at a flat, and driven away in an APC. The witness did not know Nura Luluyeva or other women detained on that day. There was no news of Zavalu T. after that day.
Satsita T.'s daughter testified that at about 7 a.m. on 3 June 2000 a friend's wife came in and asked her father to help her find her husband. Her father, Zavalu T., went out with her and has not been seen again. At about 9 a.m. she went outside to get water and saw a group of military wearing masks and a group of people who were shouting something about them driving away women. Then there came a group of policemen and the military shot in the air. The military left with an APC, the witness did not notice any men in civilian clothes on the hull or any numbers. She recalled that someone told her that the military had been waiting in the court of a nearby house since 3 a.m. of the previous night.
Zura A., questioned in August 2000, explained that on 3 June 2000 she came to the Leninskiy district looking for her husband. At first, at about 6.45 a.m., she visited her distant relative Zavalu T. who told her that her husband had not stayed with them. He offered to come with her to another man who had lived nearby and where her husband could have stayed. They walked together to a house at Mozdokskaya Street, the number she did not recall. There Zavalu knocked on the door and called the owner of the flat by name. They knocked again, and then the door opened and they were taken inside by several armed men in camouflage. Once inside, they took them to different rooms and questioned. The applicant was questioned by a Russian man, who told her that he was from the FSB and that they were looking for the owner of the flat because “some of their guys had been killed there”. The witness explained why she was there. She submits that she was questioned in a polite and calm manner, that the men who had questioned her did not name themselves and did not use any names addressing each other. Then three women came to the flat. At first they called the owner by name through the window, then knocked on the door and entered. One of the women fainted when she saw the military. The men then took away the three women and Zavalu T., and the witness was told to stay inside quietly for 20 minutes and not to tell anyone about what had happened. She was forced to write a receipt, not addressed to anyone, in which she undertook to keep silent about the events, which the military had taken along. Then the witness heard a sub-machine gun burst from the street and shouts “Disperse!” The witness said that the men had been armed with sub-machine guns and wore camouflage without any signs. She was not contacted by anyone from the law-enforcement bodies after that incident.
In November 2000 the investigators again questioned Satsita T. She confirmed the known circumstances of her husband's detention, to which she was not herself a witness. She further explained that she had visited all the relevant authorities in Grozny, but could not find out anything about her husband's whereabouts. She stated that on two occasions she was contacted by persons who did not tell her their names out of fear for their lives, who told her that her husband had been detained in a ground pit at the Khankala military base. One man told her that he had been detained with her husband. He told her that Zavalu T. was badly beaten and complained about pains in the kidneys. He had requested that man to tell his family about his detention. Satsita T. denied that she, her husband or any of her relatives have ever been involved in the activities of the illegal armed groups. On the same day Satsita T. was granted victim status in the proceedings.
Tamara Kh. stated in December 2000 that she had learnt from her sister's husband that in June 2000 her sister Tamani Kh. had been detained by the military at the market in Grozny, along with other women who were trading there, and that there were no news of them ever since. The family was looking for Tamani everywhere, but without any results. On the same day Tamara Kh. was granted victim status in the proceedings.
e) Forensic report
On 28 April 2001 a forensic expert prepared a report based on the description of the site in Dachnoye where on 24 February – 1 March 2001 there were discovered 47 bodies with signs of violent deaths (the description of the site was not submitted to the Court). One body was identified as that of Nura Luluyeva. The report was cited as follows: “the following clothes was discovered on the corpse: a blue cardigan and a printed dress. The bones of the extremities, of the chest and pelvis are intact. The head in the right frontal part has an extensive defect to the bone, the bone lamella is totally missing. Skin is mummified, yellowish-brown in colour, solid to the touch”.
The expert was requested to answer questions concerning possible reasons and time of Nura Luluyeva's death. The expert concluded that, basing on the report, it appeared that the death had occurred 3 to 10 months prior to the discovery of the body, of an extensive wound to the front of the head, which has caused massive deformation of the frontal part of the scull.
f) Statements by the officials of the Leninskiy VOVD
In July 2003 investigators questioned several officers who had at the material time served at the Leninskiy VOVD of Grozny on mission from other regions of the Russian Federation. They recalled having opened a search file in respect of Nura Luluyeva and other women, but the search had not brought any results. They could not recall if the hull number of the APC which had taken away the women was known to the investigation authorities.
1. The applicants submit that Article 2 of the Convention was violated in respect of their mother and close relative, Nura Luluyeva. They submit that the circumstances of her detention and the discovery of her body in the mass grave indicate that she was killed by the federal forces. They further submit that there was a violation of the procedural aspect of Article 2 since no effective investigation has been carried out into the circumstances of her detention and murder.
2. The applicants complain that the circumstances of her detention strongly indicate that Nura Luluyeva was subjected to ill-treatment in violation of Article 3 of the Convention. They further submit that the authorities failed to investigate effectively the allegation of ill-treatment, and therefore failed in their positive obligations under Article 3.
3. The applicants submit that as a result of the anguish and emotional distress they have suffered in connection with the detention and murder of their mother and close relative, they were subjected to ill-treatment falling within the scope of Article 3 of the Convention.
4. The applicants complain that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, were violated in respect of Nura Luluyeva.
5. The applicants submit that they are deprived of access to a court, contrary to the provisions of Article 6 of the Convention, because their civil claim for damages depended entirely on the outcome of the criminal investigation into the disappearance and murder Nura Luluyeva. In the absence of any findings, they cannot effectively apply to a court.
6. The applicants complain that the abduction and murder of their mother and close relative constituted an unjustified interference with their right to respect for their family life, in breach of Article 8 of the Convention.
7. The applicants complain that they have no effective remedies in respect of the alleged violations of Articles 2, 3 and 5, as guaranteed by Article 13 of the Convention.
8. The applicants complain about discrimination prohibited by Article 14 of the Convention, alleging that the above violations occurred because their family is of Chechen origin and they are residents of Chechnya.
The applicants invoke Articles 2, 3, 5, 6, 8, 13 and 14 of the Convention.
1. The Government
As to Articles 2 and 3, the Government note that the circumstances of Nura Luluyeva's abduction and killing are under investigation, and refer to the difficulties in the investigation arising from the need to fight the organised bandit groups and the counter-terrorist special operation carried out in Chechnya to that effect. The answers received by the applicants and the investigators from the relevant authorities (the FSB, the Ministry of the Interior and the military commander of the Lenisnkiy district) denied the involvement of those authorities in the detention of Nura Luluyeva. The competent officials started a criminal investigation and took all necessary measures in accordance with the national legislation, which established that Nura Luluyeva was forcibly detained by a group of armed persons who blindfolded her and forced her into an APC. Her death occurred on the day of detention. The criminal investigation was on several occasions suspended and resumed, but the attempts to solve the crime were continuing. The supervising prosecutors exercised due control over the investigation and gave instructions about the necessary investigative actions. The Government refer to the cited above letters from the authorities and from the supervising prosecutors which in their view demonstrate that the applicants were duly informed of the progress of the investigation. The Government also note that the applicants' complaints about the alleged inefficiency of the investigation are dated 2000-2001, i.e. they were governed by the then valid Code of Criminal Procedure which did not give the victims the right to familiarise themselves with the investigation file until the investigation was over.
In connection with Article 5, the Government submit that any violation of the rights of the applicants' close relative was the result of the actions of unknown persons, subject of a criminal investigation, and not of any State authority.
As to the applicants' access to court, the Government note that a proper examination of the case can not be achieved without the persons responsible for the crime being identified and brought to justice within the scope of the criminal proceedings that are still pending.
As far as the applicants' complaint about discrimination in the enjoyment of the Convention rights, the Government reject this as unfounded and state that all their complaints during the criminal investigation were properly investigated and responses were given to them, without any discrimination based on their national origin.
The Government submitted no comments on the applicants' complaints under Articles 8 and 13 of the Convention.
2. The applicants
The applicants maintain their complaints and submit that the representatives of the State intentionally took the life of Nura Luluyeva, in violation of the material aspect of Article 2. They rely on the cited in the Government memorandum conclusions of the investigation that the woman was detained by a group of armed men who forced her into an APC – a military vehicle. They refer to the witnesses' statements that describe the abductors as belonging to the federal forces, and to the information received by Nura Luluyeva's husband from the officials of the Leninskiy VOVD about the hull number of that APC. They further argue that the discovery of her body in a mass grave in close proximity (less then one km) from a large military base in Khankala, the access to which is restricted almost exclusively to the Russian federal forces, confirm the participation of state representatives in the killing of Nura Luluyeva. The applicants further refer to the Russian Government memorandum which confirms that she was killed on the day of her detention, and presumably, by the same persons. They note that the authorities failed to provide an explanation or an alternative version of the events, and that the Government's failure to produce copies of the documents from the case file puts the burden of proof on the State.
The applicants allege that the authorities failed to conduct an effective investigation into the circumstances of Nura Luluyeva's abduction and death, in violation of the procedural aspect of Article 2. They argue that the investigation fell short of the standards of the European Convention and of the national legislation. They point out at the delay in its opening and repeated suspensions, and that four years after the opening it has not been completed. They underline the Government's failure to produce a single document from the case file which would list the reasons for the suspension and/ or reopening and suggest that they were unfounded. They emphasize that Nura Luluyeva's husband, who alerted the authorities on the day of his wife's detention, was only formally questioned as a witness and granted victim status in December 2000, i.e. four months later. Only he was granted victim status in the proceedings, but not the first applicant or other close relatives of Nura Luluyeva, nor of her two cousins who had been detained together with her. The authorities systematically failed to inform them of the proceedings, and the applicants had no information after 2003. They question the relevance and effectiveness of the documents from the investigation file copies of which were submitted by the Government, and suggest that the authorities clearly failed to verify all possible investigative versions, mainly that Nura Luluyev was taken away and killed by the servicemen of the Ministry of Defence or of the FSB, as suggested by the witnesses.
Referring to the Court's practice, the applicants contend that the State's failure, without a sufficient explanation, to provide copies of the most part of the investigation file, should give rise to a separate conclusion of a violation of the obligations under Article 34 of the Convention.
The applicants express their belief that Nura Luluyeva was subjected to ill-treatment by the State representatives who detained her and that no effective investigation was undertaken in this respect. Referring to Article 3, they also underline their own position, namely that they have suffered mentally from the Russian authorities' complacency to the death of their close relative.
The applicants further submit that the detention of Nura Luluyeva was not in compliance with the domestic legislation and the requirements of Article 5 as a whole. They consider it proven beyond reasonable doubt that their close relative was detained by the representatives of the federal forces, due to the presence of an APC and the witness statements about carrying out of a special operation.
As to Article 6, the applicants state that it is not possible to have a hearing in a case where no one has been found responsible for a crime, and they would only have the right of appeal to a court at a stage of the proceedings which has not been reached.
The applicants underline that by detaining and killing their mother and close relative the State violated their rights guaranteed under Article 8 of the Convention. They further point out that the Government made no comments under this heading and therefore invite the Court to conclude that the State does not object to the allegations under Article 8.
3. The Court's assessment
The Government have not formally contended that the application should be declared inadmissible for non-exhaustion of domestic remedies or on the ground that the application is premature. They do, however, note that criminal proceedings are still pending, and in the absence of its conclusions the applicants' allegation about the responsibility of the State authorities in Nura Luluyeva's abduction and murder and lack of efficient investigation lack substantiation. The Court considers that these comments are to be considered as observations on the merits of the case, and not as a preliminary objection.
The Court considers, in the light of the parties' submissions, that the case 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 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
Declares the application admissible, without prejudicing the merits of the case.
Santiago Quesada Christos Rozakis
Deputy Registrar President
LULUYEV and Others v. RUSSIA DECISION
LULUYEV and Others v. RUSSIA DECISION