FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21486/06 by Tamara Shadidovna SATABAYEVA against Russia

The European Court of Human Rights (First Section), sitting on 11 September 2008 as a Chamber composed of:

Christos Rozakis, President , Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni , George Nicolaou, judges ,

and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 11 May 2006,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention) ,

Having regard to the decision to grant priority to the above application unde r 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 FACTS

The applicant, Ms Tamara Shadidovna Satabayeva, is a Russian national who was born in 1953 and lives in Urus-Martan, the Chechen Republic . Sh e is represented before the Court by Mr D. Itslayev, a lawyer practising in Nazran. The Russian Government (“the Government”) we re represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights .

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Detention and subsequent disappearance of Yusup Satabayev

The applicant ’ s son, Yusup Akhmedovich Satabayev, born in 1977, lived with her in Urus-Martan at the address 1 Tolstogo Street . The applicant has two other children.

1. The applicant ’ s account

On 29 January 2000, following the outbreak of armed conflict in Chechnya , Yusup Satabayev joined one of the paramilitary groups which fought against the federal army. According to the applicant, he stayed with the paramilitary group for less than a month, during which there were no armed confrontations, and then left. On 23 February 2000 he arrived in Martan-Chu, in the Urus-Martan district, allegedly to surrender to the authorities in order to benefit from the Amnesty Act. However, on the same day he was arrested at his sister ’ s house by servicemen of the Federal Security Service (FSB). After his arrest he voluntarily disclosed to the authorities the hiding place of his personal machine gun and a cache of weapons belonging to the paramilitaries.

Yusup Satabayev (case file no. 59211) was then charged in criminal proceedings with participation in an organised armed gang and illegal dealing in firearms. He was remanded in custody during the investigation. On 4 March 2000 he was transferred to the pre-trial detention facility in the village of Chernokozovo in Naurskiy district. On 12 March 2000 the applicant visited this detention facility and although she was not allowed to see him in person, she received his message confirming receipt of her parcel. The applicant then remained in Chernokozovo and regularly sent parcels to her son, each time getting confirmation of receipt.

In mid-July 2000 legal counsel hired by the applicant, Ms T., visited Yusup Satabayev in the detention facility and ascertained that he was in good health.

On 27 July 2000 the criminal proceedings against Yusup Satabayev were discontinued on the following grounds:

“[Yusup Satabayev] has acknowledged having participated in illegal organised gangs, is aware of being guilty of the [criminal offences he is charged with], he is liable to the maximum sanction of five years of imprisonment ..., has voluntarily surrendered [his weapon] and indicated the place where paramilitaries ’ arms were hidden, and thus should be absolved of criminal liability [for dealing in firearms]; he has not caused any damage to the Armed Forces of the Russian Federation, has no previous criminal record, and has a permanent place of residence, [he is] characterised positively, has voluntarily quit the illegal paramilitary groups, and he therefore has ceased to pose public danger.”

Yusup Satabayev was notified of this decision on the same day and he signed the last page of it, as required by law. His release was due on the same day, but he remained in custody.

The applicant was not aware that the criminal proceedings against her son had been discontinued.

On 28 July 2000 , the applicant ’ s legal counsel T. discovered that Yusup Satabayev had been transferred to the detention facility of the Urus-Martan temporary Department of the Interior of the Chechen Republic (VOVD) ( Урус - Мартановский временный отдел внутренних дел Чеченской республики ). The applicant went to Urus-Martan and met investigator O., who was in charge of the criminal case against Yusup Satabayev. He explained that Yusup Satabayev would be detained for another ten days and then he would be released. He did not inform her that the criminal case had been discontinued.

On the same day the applicant sent a parcel to her son in the detention facility and he confirmed receipt as usual. In the following days the applicant routinely spent all the time outside the curfew hours in front of the detention facility waiting for her son ’ s release. She regularly sent parcels and got confirmation of receipt, and sometimes short notes which he wrote on the receipt form. On 1 August 2000 she met families of other detainees, Kazbek Vakhayev and G., who had been arrested earlier that day. From that day onwards they were also regularly in front of the detention facility.

On 1-2 August 2000 the applicant sent her son a parcel with a pair of shoes, trousers, and a shirt. He sent her back his used clothes, namely a black jumper, socks, winter shoes and a towel.

On 4 August 2000 the applicant visited investigator O. and asked him when her son would be released. He informed her that criminal proceedings against him had been discontinued on 27 July 2000 . She then asked him on what grounds Yusup Satabayev was being kept in detention, but O. only said that it “had to be done this way”.

On 9 August 2000 the applicant met Ms Ch., whose son had been arrested that day, in front of the detention facility.

On 13 August 2000 the applicant saw the family of Kazbek Vakhayev sending a parcel which was then returned to them for the reason that he was no longer in the facility.

At about 2 p.m. on the same day the applicant sent a parcel to her son, but the officer did not give her confirmation of its receipt. At her request he went to get the receipt but did not come back.

On 14 August 2000 , in the morning, the applicant together with the families of other detainees visited the head of the Urus-Martan VOVD, colonel Sh., who told them that Kazbek Vakhayev had been released on 11 August 2000, but that Yusup Satabayev, G., and Ch. had been abducted by the “Shamanovs” ( « Шамановцы » ) and taken to the “force groups”. According to the applicant, this meant the federal force groups “Zapad” under the command of General Shamanov ( группировка федеральных сил « Запад » под командованием генерала Шаманова ) then located to the south-west of Urus-Martan. Neither the applicant nor other detainees ’ families managed to obtain any more information on the matter.

2. The Government ’ s account

The Government submitted that “[o]n 1 August 2000 officers of the Urus-Martan Temporary Department of the Interior of the Chechen Republic under Decree of the President of the Russian Federation of 2 November 1993 no. 815 ‘ On Measures for Prevention of Vagrancy and Mendicancy ’ apprehended and brought to the said department Y. A. Satabayev, [G.], K.L. Vakhayev and [Ch.]. Subsequently they were released however, their whereabouts [are] still unknown”.

B. Search for Yusup Satabayev and investigation

1. The applicant ’ s account

The applicant instructed her legal counsel, Ms T., to make all official enquiries with the authorities to establish the whereabouts of her son, which Ms T. did.

On 19 August 2000 the acting prosecutor of the Urus-Martan district informed the applicant ’ s counsel that “according to the records of the Urus-Martan VOVD, [Yusup Satabayev] was released on 14 August 2000 ”.

On 22 August 2000 the family of Kazbek Vakhayev learned from informal contacts that on 13 August 2000 four young Chechen men had been executed in the military camp near the village of Goy-Chu of the Urus-Martan district. Apparently the execution had been carried out by servicemen of the Urus-Martan district military commander ’ s office ( Урус - Мартановская районная военная комендатура ) and the bodies had been buried in a shallow grave on the military camp ’ s grounds. When the camp was dismantled to change its location one of the soldiers told the villagers of Goy-Chu about the grave and asked them to re-bury the dead. In the indicated place the villagers exhumed four corpses with numerous traces of violence and some spent cartridges. They did not identify the bodies but they made a video recording. The bodies were re-buried on the same day, 22 August 2000, in the cemetery of the village Goyskoye. A member of Kazbek Vakhayev ’ s family, Mr U. , came to identify the bodies, but he did not recognise Kazbek Vakhayev among them. The applicant submitted to the Court a copy of the above video recording.

On 7 September 2000 the head of the Urus-Martan VOVD, colonel Sh., sent a letter to the applicant ’ s counsel stating that “Yusup Satabayev, born in 1976, has neither been arrested by the Urus-Martan VOVD, nor detained therein”.

On 14 September 2000 the acting prosecutor of the Urus-Martan district informed the applicant that her complaint had been forwarded to the Urus-Martan VOVD to open an investigation into the disappearance of Yusup Satabayev. She was also informed that Yusup Satabayev had been detained from 4 to 14 August 2000 on the basis of the President ’ s Decree No. 1815 of 1993, as a vagrant, and then released.

On 16 September 2000 the applicant and the mothers of other missing detainees, Kazbek Vakhayev, G. and Ch. , applied to the Prosecutor ’ s Office of the Chechen Republic complaining about the disappearance of their sons from the detention facility and alleging the use of torture against them.

On 18 October 2000 the Urus-Martan District Prosecutor ’ s Office opened criminal investigation into the abduction of four men, namely Yusup Satabayev, Kazbek Vakhayev, G. and Ch. (criminal case file no. 24048).

On 25 October 2000 the applicant was informed by the Urus-Martan District Prosecutor ’ s Office that criminal proceedings had been instituted.

On 1 November 2000 the applicant was granted victim status in the case no. 24048. She states that she was not informed about this decision.

The applicant submitted that her flat in Urus-Martan had been subjected to several search raids. She referred in particular to the events of 22 February 2001, when a group of six or seven armed servicemen had broken into the flat at night, apparently searching for “men”. After these raids the applicant had decided to leave Chechnya for security reasons.

On 23 February 2001 the applicant, with her children, moved to Ingushetiya, where they lived until 2006 in a refugee camp for forced migrants from Chechnya .

In March 2001 the applicant was visited in Ingushetiya by Rebart Vakhayeva, the mother of Kazbek Vakhayev. She showed her the video recording of the bodies exhumed on 22 August 2000 and said that one of the dead men was probably Kazbek Vakhayev. The applicant watched the video tape as well and concluded that another exhumed body belonged to Yusup Satabayev. She recognised, moreover, the trousers and the shirt which she had sent him in the detention facility on 1-2 August 2000. According to the applicant, all four bodies showed signs of violent death. Rebart Vakhayeva told the applicant that she had already requested the prosecutor ’ s office to re-exhume the bodies and to conduct their forensic examination and identification.

During her stay in Ingushetiya the applicant had no contact with the prosecutor ’ s office and has never been informed about the progress of the investigation on the case no. 24048. She states that no letters were delivered to her address.

At the end of March 2006 the applicant returned to Chechnya .

On 4 April 2006 she requested the prosecutor ’ s office to provide her with an update on the investigation of the case no. 24048.

On 6 April 2006 the Urus-Martan District Prosecutor ’ s Office informed the applicant that she had been granted victim status in the criminal proceedings on case no. 24048.

The applicant remained in contact with Rebart Vakhayeva and was aware of her attempts to secure the re-exhumation of the four bodies found near Goy-Chu and their identification. In particular, she referred to the judgment of 28 December 2004 given by the Urus-Martan Town Court which ordered the Urus-Martan District Prosecutor ’ s Office to take measures in relation to these unidentified bodies. According to the applicant, this court order has not been carried out to date.

The applicant submitted that there had been no development in the case since.

2. The Government ’ s account

Following the applications lodged by the applicant and mothers of the other three men who had disappeared, the Urus-Martan District Prosecutor ’ s Office conducted a check, following which criminal proceedings under Article 126 of the Criminal Code (abduction) were instituted on 18 October 2000. The case was assigned number 24048.

The applicant was granted victim status and questioned on numerous occasions. She submitted that Yusup Satabayev had been a member of a paramilitary group. She had no information about his fate after his release from the Urus-Martan district remand prison in August 2000.

Ms Kh. A., the wife of Kazbek Vakhayev, Rebart Vakhayeva , Ms Ch. and Ms G. (apparently family members of Ch. and G. respectively) were also granted victim status and questioned. However, they provided no particular information about the disappearance of Yusup Satabayev and their relatives.

Witnesses Mr A., Mr B., Mr S., Ms A., Ms Kh., Ms A. V., Ms L. T., Ms Akh. and Ms Z. T. “and others” submitted that they had no information about the apprehension of the disappeared persons by law-enforcement officials. It is not clear who those witnesses were and why their statements could have been relevant.

Rebart Vakhayeva filed an application to enclose in the case file a videotape of four dead bodies, one of which, according to her, was her son. The Urus-Martan District Prosecutor ’ s Office received instructions to establish the circumstances in which the dead bodies had been found and to identify the dead persons.

Rebart Vakhayeva also complained to the Urus-Martan District Court about the discontinuation of the criminal proceedings. Her complaint was partially allowed. The same court partially allowed her complaint concerning the necessity to take a procedural decision in respect of the discovery of the four dead bodies.

On 4 August 2006 criminal proceedings concerning the discovery of the four dead bodies on 22 August 2000 were separated into a different set of criminal proceedings under Article 105 of the Criminal Code (murder). The Prosecutor ’ s Office of the Chechen Republic gave instructions concerning the additional questioning of the applicant and exhumation of the dead bodies.

The investigator instructed the local department of the interior to establish the whereabouts of the disappeared persons. In order to verify whether the officials of the FSB had been involved in the offence, the prosecuting authorities requested information concerning possible detention of Yusup Satabayev, G., Kazbek Vakhayev and Ch. between 14 August 2000 and 9 October 2003. However, no information about their detention was received.

The preliminary investigation in case no. 24048 was repeatedly suspended on account of failure to identify the persons to be charged with the offence. Those who had victim status in the criminal proceedings were duly informed of all the suspensions and resumptions of the investigation and the appeal procedure was clarified for them. After the most recent suspension of the investigation on 21 August 2006, it was resumed on 22 August 2006 by the Urus-Martan District Prosecutor ’ s Office. At present the investigation is ongoing and is supervised by the Prosecutor General ’ s Office.

C. The Court ’ s request to submit the investigation file

Despite the Court ’ s specific request , the Government did not submit a copy of the investigation file into the abduction of Yusup Satabayev . They submitted thirty-two pages of case file materials, which contained decisions on institution, suspension and resumption of the investigation and the decision to grant the applicant victim status. 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 or other participants in criminal proceedings .

COMPLAINTS

1. The applicant submitted that Russia had violated its positive obligation under Article 2 to protect the life of everyone within its jurisdiction. She argued that the known circumstances of Yusup Satabayev ’ s detention and absence of any news from him since August 2000 gave rise to a strong presumption that he had been killed by Russian servicemen in violation of Article 2 of the Convention. She also submitted that the authorities had failed to conduct a timely and thorough investigation into the disappearance of Yusup Satabayev, in violation of the procedural obligations under Article 2 of the Convention.

2. The applicant complained that the provisions of Article 5 as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Yusup Satabayev.

3. The applicant next allege d that she had had no effective remedies in respect of her complaints under Articles 2 and 5 of the Convention, contrary to Article 13 of the Convention .

THE LAW

A. The Government ’ s objection as to the e xhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non- exhaust ion of domestic remedies , since the investigation into the disappearance of Yusup Satabayev had not yet been completed.

The applicant disputed that objection. In her view, the fact that the investigation had been pending for eight years with no tangible results proved that it was an ineffective remedy in this case.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.

B. M erits of the application

1. The applicant complained under Article 2 of the Convention of a violation of the right to life in respect of Yusup Satabayev and of the authorities ’ failure to conduct a proper investigation. Article 2 of the Convention reads 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.”

The Government submitted that the circumstances of Yusup Satabayev ’ s disappearance were under investigation. The information about his death had not been confirmed. Nor had it been established that any State agents had violated his right to life . A considerable number of investigative actions had been conducted and persons having victim status in the proceedings had been duly informed of them.

The applicant argued that it was beyond reasonable doubt that Yusup Satabayev had been killed by representatives of federal forces. Furthermore, the investigation conducted into his disappearance had been manifestly ineffective.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complained that Yusup Satabayev had been deprived of his liberty in violation of Article 5 of the Convention. The relevant parts of Article 5 provide:

“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.”

The Government submitted that after Yusup Satabayev had been detained on 1 August 2000, he had been released on 14 August 2000. There had been no violation of Article 5 of the Convention in respect of his detention.

The applicant contended that Yusup Satabayev had been detained on 23 February 2000 following the institution of criminal proceedings against him. However, after the discontinuation of the criminal proceedings on 27 July 2000 he had not been released and had remained in arbitrary and unlawful detention until his death.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant complained under Article 13 of the Convention that she had had no effective remedies in respect of the alleged violations of Articles 2 and 5 of the Convention. Article 13 of the Convention reads as follows:

“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.”

The Government contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention. In particular, she could have had appealed to a court against actions or omissions of investigating authorities.

The applicant argued that possible effectiveness of domestic remedies had been undermined by the authorities ’ failure to conduct an effective investigation into Yusup Satabayev ’ s disappearance.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not 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

Decides to discontinue the application of Article 29 § 3;

Decides to join to the merits the Government ’ s objection concerning the exhaustion of domestic remedies;

Declares the application admissible, without prejudg ing the merits .

Søren Nielsen Christos Rozakis              Registrar              President