AS TO THE ADMISSIBILITY OF
Application no. 77626/01
by Lech AZIYEV and Zulay AZIYEVA
The European Court of Human Rights (First Section), sitting on 21 September 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 16 July 2001,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are Mr Lech Aziyev, born in 1947, and Ms Zulay Aziyeva, born in 1949. They are Russian nationals and residents of Grozny, Chechnya. The applicants were represented before the Court by lawyers from the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are married and have two sons: Lom-Ali Aziyev, born in 1973, and Umar-Ali Aziyev, born in 1974. They all lived in an apartment in a block of flats at 49 Tukhachevskiy Street, Grozny.
1. The events of 24 September 2000
During the night on 24 September 2000 the applicants and their sons were asleep at home. At around 1.20 a.m. a group of eight armed men wearing camouflage uniforms and masks and carrying torches entered the applicants’ flat, having broken down the door. The men did not introduce themselves. The applicants claimed that the men were members of the Russian military, since they had spoken Russian and had been able to circulate freely in Grozny during the curfew.
The men kicked the first applicant and beat him with their machine guns. They further aimed their guns at both applicants and ordered them to be silent.
Thereafter the men proceeded to the applicants’ sons’ room. Without producing any documents to authorise their actions, the men searched the room and arrested Lom-Ali and Umar-Ali Aziyev. As the applicants’ younger son resisted, he was knocked off his feet, handcuffed and blindfolded. Then the men took away the Aziyev brothers, who only had their underwear on and were barefoot. One of the men also took a pair of shoes and a tape recorder. The second applicant’s attempts to obstruct the detention of her sons failed as the men threatened her with firearms. According to the applicants, the men assured them that they would check their sons’ identities and release them immediately afterwards.
In the morning the applicants found their sons’ identity documents lying on a bedside table in the room. The room was in a mess, and a sofa was broken.
The applicants have had no news of their sons ever since.
2. The first applicant
On 24 September 2000, in the morning, the first applicant was taken by his neighbours to hospital no. 9 and underwent a medical examination.
The examination established that he had a craniocerebral injury, an avulsed wound in the temple area, a haematoma of the head as well as brain concussion, temporary blindness, a haematoma of the thorax and the subcutaneous stomach tissue, a haematoma of the scrotum, uraemia, fractured ribs and a contusion of the liver, of the kidneys and of the urinary bladder.
The first applicant submitted that he had had to stay in bed for about a month to recover after 24 September 2000.
According to the Government, the first applicant had first notified the authorities of the beatings in February 2001. The applicant argued that he had talked about his injuries to the investigators who had questioned him on 24 September 2000, and that he had mentioned the beatings in a letter to the prosecutor of the Chechen Republic dated 9 December 2000, a copy of which had been submitted to the Court.
On an unspecified date the Grozny prosecutor’s office ordered a forensic medical examination of the first applicant so as to ascertain whether there was a causal link between his injuries and the actions of unknown servicemen who had raided his flat on 24 September 2000 and beaten him.
This examination was carried out on 8 February 2001. The report relied on a medical record indicating the results of the medical examination which the first applicant had undergone in hospital no. 9 on 24 September 2000 and confirmed that the injuries in question could have been sustained during the period and in the circumstances described by the first applicant.
It appears that the first applicant’s allegations were investigated in the context of criminal proceedings brought in respect of the abduction of his two sons and that on 17 December 2003 he was granted the status of a victim in that connection.
In 2005 the investigating authorities ordered another forensic medical examination on the ground that the results of the examination of 8 February 2001 were unreliable. On 10 March 2005 experts reported that they had not found any signs of injuries on the first applicant’s head, face or body, and that X-ray examinations had not disclosed any disorder in the first applicant’s heart, lungs and ribs. With reference to the medical record made in hospital no. 9 on 24 September 2000 the experts concluded that the injuries complained of by the applicant had been established on that date, and that the first applicant had been likely to have sustained those injuries during the period and in the circumstances described by him. The report also stated that there were no objective data to confirm the conclusion of the examination of 24 September 2000 that the applicant had had fractured ribs, brain concussion and a contusion of the liver, of the kidneys and of the urinary bladder.
3. The applicants’ search for Lom-Ali and Umar-Ali Aziyev
Since 24 September 2000 the applicants have repeatedly applied in person and in writing to various public bodies, including a district office of the Ministry of the Interior, prosecutors at various levels, a military commander’s office, administrative authorities of Chechnya and the Special Representative of the Russian President in the Chechen Republic for Rights and Freedoms. They have been supported in their efforts by two NGOs: Memorial and the SRJI. In their letters to the authorities the applicants referred to the facts concerning their sons’ detention and asked for assistance and details of an investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which the applicants’ requests have been forwarded to various prosecutors’ offices.
The first applicant has also visited a number of detention centres and prisons in Chechnya as well as further afield in the Northern Caucasus, but has received no information as to the whereabouts of his sons.
4. Official investigation into the disappearance of Lom-Ali and Umar-Ali Aziyev
On 29 September 2000 the Grozny prosecutor’s office (прокуратура г. Грозного) instituted a criminal investigation into the disappearance of the applicants’ sons under Article 126 § 2 of the Criminal Code of Russia (kidnapping of two or more persons by a group using firearms). The case-file was assigned no. 12200.
On 11 October 2000 the Grozny prosecutor’s office granted the second applicant the status of a victim of crime. According to the Government, she was notified of that decision the same day. From the applicants’ submissions it appears that they were not informed of that decision until May 2003, when they received a copy of it.
On 29 November 2000 the Grozny prosecutor’s office suspended the criminal proceedings owing to the failure to establish who was responsible.
In a letter of 19 January 2001 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики) informed the applicants that the decision of 29 November 2000 had been set aside.
On 1 February 2001 the investigation into the disappearance of Lom-Ali and Umar-Ali Aziyev was resumed.
On 1 March 2001 the criminal proceedings in case no. 12200 were adjourned, since no culprits had been identified.
In a letter of 19 June 2002, in response to a request from Memorial on the applicants’ behalf, the prosecutor’s office of the Chechen Republic stated that the decision of 1 March 2001 had been quashed, and the investigation in connection with the abduction of the Aziyev brothers was commenced again.
In a letter of 30 July 2002 the prosecutor’s office of the Chechen Republic informed the applicants of the decision to reopen the criminal proceedings in case no. 12200.
According to a letter from the Grozny prosecutor’s office dated 29 October 2002, the criminal proceedings were again suspended on 6 September 2002.
In a letter of 17 September 2003 the prosecutor’s office of the Chechen Republic informed the applicants that the investigation into the disappearance of their sons, which had been commenced on 29 September 2000 and subsequently adjourned and reopened on several occasions, had again been suspended on 27 July 2003, as none of the perpetrators in the case had been found.
It appears that some time later the investigation was resumed, as in a decision of 17 December 2003 the prosecutor’s office of the Leninskiy District of Grozny (прокуратура Ленинского района г. Грозного) declared the first applicant to be a victim of crime in case no. 12200.
According to the applicants, they are not aware of any further steps by the law-enforcement bodies as regards the investigation into the abduction of Lom-Ali and Umar-Ali Aziyev.
With reference to the information provided by the Prosecutor General’s Office, the Government submitted in their memoranda dated 9 March and 11 April 2005 that the investigation into the abduction of Lom-Ali and Umar-Ali Aziyev and the inflicting of injuries to the first applicant by “unidentified masked men in camouflage uniforms with machine guns” had commenced on 29 September 2000 and had then been suspended and resumed on several occasions, but had to date failed to identify those guilty. On the two most recent occasions the investigation was reopened on 2 February and 28 March 2005 and was being supervised by the Prosecutor General’s Office. According to the Government, the applicants were duly informed about all decisions taken during the investigation. They further submitted that an investigator from the Grozny prosecutor’s office had examined the scene of the incident on 24 September 2000, the day of the incident, but “had not found any evidence of crime”. The investigator also questioned the applicants. The first applicant was further interrogated on 22 June 2002, 17 December 2003 and 21 February 2005, and the second applicant was questioned as a witness on 11 October 2000 and 22 June 2002. The applicants were granted the status of victims on 17 December 2003 and 11 October 2000 respectively. Apart from the applicants, the investigating authorities also questioned at least six witnesses, including the applicants’ neighbours, two of them having testified that during the night on 24 September 2000 “unidentified armed men in camouflage uniforms had burst into their flat, checked their documents and then left”. The Government did not specify on what date witness statements had been obtained. According to the Government, it was impossible to find other witnesses in the case. Finally, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 11 October 2000, 3, 10, 11 and 16 February and 23 October 2001, 21 June 2002, 1 December 2003 and 14 February 2005 and undertaken other investigative measures, but did not specify what those measures had been.
Despite specific requests from 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 the disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and to transmit it to others”.
5. Proceedings against law-enforcement officials
On 30 December 2002 the SRJI applied on the applicants’ behalf to the Leninskiy District Court of Grozny (“the District Court”), complaining about the failure of the Grozny prosecutor’s office to investigate effectively the disappearance of Lom-Ali and Umar-Ali Aziyev.
On 19 May 2003 the District Court dismissed that complaint, having found that the investigating authorities had taken all the necessary measures to find the Aziyev brothers and those involved in their abduction. The applicants did not appeal against that decision. In their submissions to the Court they alleged that they had been unable to do so, as they had not been notified of the court session and that the decision in question had been taken in their absence. From the copy of the court decision submitted by the Government it transpires that the first applicant attended the court session.
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 establishes the rule 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 and 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 the criminal proceedings without their permission.
1. The applicants complained under Article 2 of the Convention of a violation of the right to life in respect of their sons, Lom-Ali and Umar-Ali Aziyev. The applicants submitted that the circumstances of their sons’ detention and the long period during which their whereabouts could not be established indicated that Lom-Ali and Umar-Ali Aziyev had been killed by the federal military. The applicants also stated that no effective investigation had been conducted into the disappearance of their sons.
2. The applicants referred to Article 3 of the Convention, stating that they had serious grounds to believe that Lom-Ali and Umar-Ali Aziyev had been subjected to torture and inhuman treatment. The first applicant also maintained that he had been severely beaten by the servicemen who had raided their flat on 24 September 2000, and that there had been no effective investigation into the matter. Finally, under this head the applicants submitted that they had suffered severe mental distress and anguish in connection with their sons’ disappearance, and that as a result the second applicant’s health had drastically deteriorated since September 2000.
3. The applicants complained that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, had been violated in respect of Lom-Ali and Umar-Ali Aziyev.
4. The applicants complained that if their sons had been charged with any criminal offence, they had had no fair hearing and had been unable to avail themselves of the guarantees of Article 6 of the Convention.
5. The applicants relied on Article 8, alleging that the intrusion by the Russian military into their house on 24 September 2000 had infringed their right to respect for their home, private and family life.
6. The applicants alleged that there were no effective remedies in respect of the above violations of their rights, contrary to Article 13 of the Convention.
7. Lastly, in their observations of 13 May 2005 the applicants claimed that the Government’s refusal to submit a file in criminal case no. 12200 was in breach of the State’s obligations under Article 38 § 1 of the Convention.
1. The applicants complained under Article 2 of the Convention that their two sons had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. The applicants further relied on Article 3 of the Convention, submitting that their sons had most likely been tortured after having been apprehended and that the first applicant had been beaten, but that no effective investigation had been carried out on that account. The applicants also claimed that as a result of their sons’ 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 Lom-Ali and Umar-Ali Aziyev 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.”
1. Exhaustion of domestic remedies
(a) Submissions by the parties
The Government contended that the above complaints should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of the applicants’ sons had not yet been completed. They further argued that it had been open to the applicants to file court complaints about the allegedly unlawful detention of their sons or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities, but the applicants had not availed themselves of any such remedy. The Government pointed out that the applicants had not appealed against the decision given by the Leninskiy District Court of Grozny on 19 May 2003. They also enclosed a number of letters from various higher courts in Russia, stating that the applicants had never lodged complaints regarding their sons’ detention or the authorities’ inactivity to the respective courts.
The applicants contested that objection. They first stated that in 2000 they had not been able to make effective use of any remedy within the territory of the Chechen Republic, as the courts and law-enforcement agencies had not functioned properly there. With reference to the Court’s judgment in the case of Isayeva v. Russia, they further argued that they had not been obliged to apply to courts in other regions of Russia in order to exhaust domestic remedies (see Isayeva v. Russia no. 57950/00, §§ 151-161, 24 February 2005). The applicants further 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, documents of the Council of Europe, and NGO and media reports. The applicants contended that, in any event, they had repeatedly applied to law-enforcement bodies, including various prosecutors, and actively participated in the investigation. This avenue, however, had proved futile, given that the criminal investigation had by now been pending for almost five years but had failed to identify those involved in the illegal detention and disappearance of Lom-Ali and Umar-Ali Aziyev and the beating of the first applicant. As regards the decision of the Leninskiy District Court of 19 May 2003, the applicants argued that the reference made therein to the effect that the first applicant had appeared before the court was false, and that in fact the applicants and their representatives had not been notified of that hearing and had therefore been unable to attend it. Furthermore, they had only received a copy of this decision as an enclosure to the Government’s memorandum of 9 March 2005. The applicants therefore argued that they had been effectively prevented from appealing against the decision of 19 May 2003.
(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 applicants’ complaints
(a) The Government
The Government submitted that during the night on 24 September 2000 “unidentified masked men in camouflage uniforms armed with machine guns” had abducted the applicants’ sons and inflicted bodily injuries on the first applicant. They further contended that there was no evidence that the men had been State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ Convention rights.
As regards Article 2 of the Convention, the Government referred to a reply from the Prosecutor General’s Office stating that the investigation had obtained no evidence to the effect that the Aziyev brothers were dead, or that representatives of the federal power structures had been involved in their abduction or alleged killing. One of the suggestions of the investigators was that the applicants’ sons might have been abducted by members of illegal armed formations disguised as federal servicemen, who had committed a number of serious crimes in September 2000. The Government further claimed that the investigation into the disappearance of the applicants’ sons and the beating of the first applicant met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.
They further argued that the investigation had not established that Lom-Ali and Umar-Ali Aziyev had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention or that State agents had participated in the beating of the first applicant. Moreover, in the absence of any evidence suggesting that the applicants’ sons had been abducted by representatives of the federal power structures, there were no grounds for alleging a violation of Article 3 of the Convention on account of the applicants’ mental suffering.
In the Government’s submission, no evidence had been obtained by the investigators to confirm that the applicants’ sons had been detained in breach of the guarantees set out in Article 5 of the Convention. The Aziyev brothers were not listed among the persons kept in detention centres or in the registry of unidentified corpses.
The Government also contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. In particular, the applicants had received reasoned replies to all their complaints lodged in the context of criminal proceedings. Besides, the applicants had had an opportunity to appeal against the actions or omissions of the investigating authorities in court.
(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 intruded into their flat on 24 September 2000, taken away their sons and beaten the first applicant had represented federal forces. In particular, those men had spoken Russian without any accent and had told the applicants that they would check their sons’ identity and release them immediately afterwards. Moreover, the men had arrived late at night, which indicated that they were able to circulate freely during the curfew in Grozny which in September 2000 had been under the firm control of the Russian armed forces. The applicants further referred to their neighbours’ witness statements to the effect that on the night of the incident they had seen armed men walking from the block of flats in which the Aziyev family had lived towards a federal military checkpoint. The applicants also pointed out that the ground for the Government’s refusal to submit the file in criminal case no. 12200 was that it contained “information of a military nature disclosing the location and nature of actions by military and special security forces”.
The applicants accordingly argued, relying on Article 2 of the Convention, that following their apprehension Lom-Ali and Umar-Ali Aziyev had been under the control of the State and the fact that they had remained missing since 24 September 2000 proved that they had been killed. The applicants submitted that 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. The applicant also stated that the Government had not given any plausible explanation regarding the Aziyev brothers’ disappearance, and that the suggestion that they could have been abducted by members of illegal armed formations disguised as Russian soldiers had not been supported by any evidence.
As regards the procedural aspect of Article 2 of the Convention, the applicants claimed that the authorities had failed in their obligations to carry out an effective investigation into the circumstances of the disappearance of Lom-Ali and Umar-Ali Aziyev. They argued that the investigation had fallen foul of the Convention standards. In particular, it had been pending for almost five years but had not brought any tangible results so far, having been repeatedly suspended and reopened. In this latter connection the applicants referred to the Government’s memoranda, from which it was clear that the investigation had recently been reopened as least twice within a period of two months, on 2 February and 28 March 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. Besides, it did not appear that the authorities had taken all necessary investigative steps and, in particular, had attempted to find and question all possible witnesses of the Aziyev brothers’ detention or to investigate adequately the possible involvement of the military personnel in their abduction.
The applicants claimed that their sons had been subjected to treatment prohibited by Article 3 of the Convention. In particular, the servicemen had beaten Umar-Ali Aziyev and put a bag on his head. Furthermore, the applicants’ sons had been taken from home barefoot with only their underwear on. The applicants also referred to numerous instances where people detained in Chechnya had been found dead, or had returned from custody showing signs of torture or ill-treatment. The first applicant maintained that during the raid of 24 September 2000 the servicemen had beaten him, with the result that he had had to stay in bed for about a month. He referred to the results of the medical examination he had submitted to the Court in support of his allegations. The applicants further stated that the authorities had failed to investigate their allegations that their sons had been ill-treated or that the first applicant had been beaten. The first applicant claimed that he had notified the investigators of his injuries orally on 24 September 2000 and then in his letter of 9 December 2001. Despite his efforts, the first forensic examination confirming that the applicant had had a number of injuries had only been carried out on 8 February 2001, whilst the status of a victim of crime had not been granted to him until 17 December 2003, almost three years later. The applicants further maintained that they had endured severe mental suffering falling within the scope of Article 3 of the Convention in connection with the disappearance of Lom-Ali and Umar-Ali Aziyev. They pointed out that they were the closest relatives of the missing brothers, had witnessed their detention and had since been trying to obtain any information about their whereabouts and about developments in the investigation. Those attempts, however, had proved unsuccessful in view of the State’s indifference to the disappearance of the applicants’ sons and its repeated failure to inform the applicants of the progress in the investigation.
The applicants subsequently argued that the Aziyev brothers’ 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 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 about five years without any progress and that all their applications to public bodies had remained unanswered or that only formal replies had been given.
(c) The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the aforementioned complaints raise 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, it concludes that the complaints under Article 2, 3, 5 and 13 of the Convention cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
2. The applicants complained that their sons had been unable to benefit from the guarantees set out in Article 6 of the Convention in the event that any criminal proceedings had been brought against them. This Convention provision in its relevant part reads, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The Court observes that that the applicants have not furnished it with any evidence capable of forming the basis of an arguable claim that criminal proceedings have ever been brought against the applicants’ sons or that the latter have been denied the guarantees of Article 6 of the Convention. The Court therefore finds that this complaint has not been substantiated.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicants complained under Article 8 of the Convention of an infringement of their right to respect for their home, private and family life on account of the intrusion of the federal servicemen into their flat on 24 September 2000 and the ensuing search. Article 8, in so far as relevant, provides, as follows:
“1. Everyone has the right to respect for his private and family life, his home...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. Submissions by the parties
The Government argued that these complaints should be declared inadmissible for non-exhaustion of domestic remedies and that, in any event, there was no evidence of a breach of the applicants’ right to respect for their home and private and family life since it had not been established that the men who had entered their flat on 24 September 2000 had been representatives of the State.
The applicants disagreed with the Government and maintained their complaints. They claimed that they had never given their consent to the entry of the federal servicemen into their flat or to the search and that those actions had been in breach of national law, had not pursued a legitimate aim and had not been necessary in a democratic society.
2. The Court’s assessment
The Court does not find it necessary to examine any of the arguments advanced by the parties since this part of application is in any event inadmissible for the following reasons.
The Court reiterates that while in accordance with Article 35 § 1 of the Convention those seeking to bring their case against the State before the Court are required to use first the remedies provided by the national legal system, there is no obligation under the said provision to have recourse to remedies which are inadequate or ineffective. If no remedies are available or if they are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/000 et seq., 10 January 2002). The Court further reiterates that special considerations may apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002).
In the instant case, it does not appear that the applicants properly raised before the domestic authorities their complaints alleging a breach of their right to respect for their home, private and family life. The Court notes in this connection that in his letter of 9 December 2000 to the prosecutor’s office of the Chechen Republic, the first applicant mentioned the intrusion into his flat and the search when describing the circumstances of the Aziyev brothers’ detention. However, the first applicant did not, as such, challenge the intrusion or search but merely referred to them as a background for his complaints about his sons’ detention and disappearance. The Court is thus not convinced that this letter could be regarded as an attempt by the applicants to bring their complaints, as raised before it, to the attention of the national authorities. The Court further finds it unnecessary to determine whether the applicants had effective remedies available in respect of the alleged violation of their rights under Article 8, as even assuming that in the circumstances of the present case no such remedies were available to them, the events complained of took place on 24 September 2000, whereas their application was lodged on 16 July 2001, more than six months later.
For these reasons, the Court unanimously
Joins 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
AZIYEVY v. RUSSIA DECISION
AZIYEVY v. RUSSIA DECISION