FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8979/02 by Magomed MUSAYEV and Others against Russia

The European Court of Human Rights (First Section), sitting on 18 October 2007 as a Chamber composed of:

Mr L. Loucaides , President , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 21 February 2002,

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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are:

(1) Mr Magomed Musayev , born in 1950;

(2) Mrs Zargan Mitayeva , born in 1949;

(3) Mr Magomed Magomadov , born in 1969;

(4) Mrs Aynap Magomadova .

The applicants are Russian nationals and residents of the village of Raduzhnoye , Grozny district, Chechnya . They were represented before the Court by lawyers of the Stichting Russia Justice Initiative (SRJI), an NGO based in the Netherlands with offices in Moscow and in Ingushetia , Russia . The respondent Government were 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 of the case, as submitted by the parties , may be summarised as follows.

1. Detention of the applicants ’ relatives on 10 December 2000

The applicants submitted that on 10 December 2000 a large-scale sweeping operation (“ zachistka ”) had taken place in the three neighbouring villages of Raduzhnoye , Pobedinskoye and Dolinskiy , situated about 25 kilometres north-west of Grozny . The operation was carried out by 60 to 70 armed men wearing masks and camouflage uniforms and a convoy of military trucks and armoured personnel carriers (AMP) with obscured number plates. On that day a total of 21 men were detained in the three villages, including three relatives of the applicants: Said- Rakhman Musayev , Odes (also spelled Ades ) Mitayev and Magomed Magomadov .

(a) Detention of Said- Rakhman Musayev

The first applicant is the father of Said- Rakhman Musayev (born in 1984). On 10 December 2000 Said- Rakhman and his cousin Ruslan T. visited their grandmother in a neighbouring village. At about 8 or 9 p.m. they were returning to Raduzhnoye in a UAZ-469 car. They were stopped at the edge of the village by military servicemen with two APCs and ordered out of the car. Ruslan later testified that the servicemen had searched them and inspected the car, tied their hands behind their backs and put them into the back of a Ural military truck. In the truck there were already several other detainees and masked servicemen. At some point the car stopped and Ruslan heard an explosion and submachine gun bursts. The soldiers who returned to the truck said that they had blown up a VAZ-99 car.

According to Ruslan ’ s testimony, the truck travelled during the night, stopped several times and at dawn arrived at Khankala – the main Russian military base in Chechnya . The detainees were taken out and blindfolded with their own scarves or caps. They were then divided into two groups of 10 and 11 persons and ordered into two pits in the ground, 3-4 metres deep. The pits were covered with a metal and then a wooden sheet. In the same pit with Ruslan were Said- Rakhman Musayev and Odes Mitayev , as well as several other men from Raduzhnoye and Pobedinskoye villages. The detainees could stand inside, but there was not enough space to sit down. They were hardly given any food and suffered from cold.

The men remained there until the evening of 12 December 2000. They were taken out one by one and questioned, while blindfolded, as to whether they knew any fighters ( boyeviki ) or had laid mines on the roads. During the questioning they were hit with rifle butts. In the evening of 12 December 2000 Ruslan was set free. Before release the blindfolded detainees were lined up and threatened. At that time Ruslan heard the voice of Magomad Magomadov . Late on 12 December 2000 Ruslan and ten other men were taken blindfolded to the outskirts of Novy Tsentoroy village, where their relatives and the head of the village administration collected them the following day. Within three or four days other detainees were released, but not Said- Rakhman Musayev .

The first applicant and his wife were not aware of their son ’ s detention until 11 December 2000, because they presumed that he had remained overnight with his relatives.

(b) Detention of Odes Mitayev

The second applicant is the mother of Odes Mitayev (born in 1972). On 10 December 2000 her son and two other men were returning home from Grozny . One of the men who had been in the car with Mitayev testified that he had been returning from a visit to a doctor in Pobedinskoye . At the edge of Raduzhnoye they were stopped by a group of soldiers wearing camouflage uniforms, some of whom wore masks. The servicemen searched them and took identity documents and valuables, blindfolded them, tied their hands behind their backs and threw them into a military Ural truck.

The truck stopped several times to pick up more people, until there were about ten detainees. At some point they heard shouting and bursts from automatic weapons and then there was an explosion – the detainees understood that the military had blown up a VAZ car from Pobedinskoye . They travelled overnight, and at dawn arrived at the Khankala military base, which they identified by the noise of helicopters and military vehicles.

The two men who were in the car with Mitayev were released together with Ruslan T. One of them testified that before release they had been lined up while blindfolded, and someone – presumably a senior officer – threatened them not to tell anyone what had happened to them.

(c) Detention of Magomed Magomadov

The third and fourth applicants are the brother and mother of Magomed Magomadov (born in 1969), [1] who was an officer with the Staropromyslovskiy district police department of Grozny . In the evening of 10 December 2000 he was at home with his mother, the fourth applicant.

At that time a military convoy of two APCs and four Ural trucks was passing through Raduzhnoye . In thick fog a passenger car collided with the convoy and turned abruptly towards the houses. The soldiers started shooting and wounded the driver. The car crashed into the gates of the Magomadovs ’ neighbours ’ house. Magomed Magomadov heard the noise and jumped over the fence into his neighbours ’ courtyard to find out what was going on. The servicemen who had chased the car apprehended Magomadov and drove him away towards the highway. The driver of the passenger vehicle was severely wounded and the military did not apprehend him.

The Government in their observations did not challenge the facts as presented by the applicants. They stated that it had been established that on 11 December 2000 during the night unidentified persons wearing camouflage uniforms and masks, armed with automatic weapons and using armoured vehicles, had arrived in the villages of Raduzhnoye and Pobedinskoye in the Grozny district, apprehended Said- Rakhman Musayev , Odes (also spelled Ades ) Mitayev and Magomed Magomadov and taken them away in an unknown direction. Eighteen other persons had also been detained and were later released by the abductors.

2. Search for the “disappeared”

Immediately after the detention of their family members the applicants and other relatives of the detained persons started to look for them. On 13 December 2000 Ruslan T. and ten other men returned to Raduzhnoye . On 17 December 2000 another five men were released. On 19 December 2000, two more men were released in the village of Gikalo . They told the applicants that they had been detained in pits in Khankala and that on 19 December 2000 Said- Rakhman Musayev , Odes Mitayev and Magomad Magomadov had still been detained at the military base.

The applicants applied to numerous official bodies, both in person and in writing, trying to find out the whereabouts and the fate of the three men. Among other authorities they applied to the Grozny and Chechnya departments of the Interior, the Federal Security Service of Chechnya, the Prosecutor of Chechnya and the Chechnya Administration. The applicants received hardly any substantive information about the fate of their family members and about the investigation. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutor ’ s services.

On 19 February 2001 the Grozny District Prosecutor ’ s Office opened criminal investigation no. 19012 under Article 127 (2) of the Criminal Code (illegal deprivation of liberty committed by a group).

3. Discovery of the bodies on 21 February 2001

In early February 2001 the second applicant met a woman whose son had also “disappeared”. She explained to the second applicant that on 19 February 2001 she was to go to Zdorovye , an abandoned holiday village near Grozny , where apparently some corpses had been uncovered. The place was located close to the Khankala base, and the woman had arranged for a pass and military escort to get into the area. The second applicant provided her with a detailed description of her son and the clothes he had been wearing on the day of arrest. On 19 February 2001 the woman returned and told the second applicant that she had found a body in Zdorovye which might fit the description.

The third applicant, who is the deputy head of the Raduzhnoye village administration, arranged for a military escort of ten servicemen, two staff members from the local military commander ’ s office and transport. The applicants submitted that the area of the abandoned holiday village was within the “security perimeter” of the Khankala base, and that they could not travel there without a pass and a military escort. They had to register the passage of their vehicles at every military checkpoint on the road.

On 21 February 2001 the applicants came to Zdorovye . The ground was covered with fresh snow, which complicated the search. Immediately next to the road the applicants found the bodies of Said- Rakhman Musayev and Magomad Magomadov , one on top of the other. They recognised them by the clothes they had been wearing on the day of their arrest. Both were blindfolded and their hands were tied tightly behind their backs.

The servicemen accompanying the applicants checked whether the bodies or the surroundings had been mined. They refused to venture into the village for fear of mines, but the applicants continued anyway and soon found Odes Mitayev ’ s body at the entrance to a destroyed garden shed. He was also blindfolded and had his hands tied together behind his back.

The three bodies were taken back to Raduzhnoye the same day, and the applicants immediately informed the prosecutor ’ s office. In accordance with the religious custom, the applicants buried their relatives on the following day, 22 February 2001. The relatives did not take pictures of the bodies, but described them in their submissions. It appears that no autopsies or detailed description of the bodies were carried out by medical or police staff before the burial.

The body of Said- Rakhman Musayev bore “numerous gunshot and knife wounds to the body and head”, as recorded in the medical death certificate drawn up by a doctor from the Dolinskaya clinic on 8 November 2001. The applicants and other witnesses submitted that there were gunshot wounds to the head and right and left sides of the chest and knife wounds to the abdomen, and that several bones had been fractured. The first applicant submitted that his son had been killed no more than three days after his detention, as he had hardly any stubble on his cheeks. On 8 November 2001 the Grozny district civil registry office issued a death certificate for Said ‑ Rakhman Musayev , born in 1984. The place and date of death were recorded as Pobedinskoye , 21 February 2001.

The body of Odes Mitayev bore “numerous gunshot and knife wounds to the body and head”, as recorded in the medical death certificate drawn up by a doctor from the Dolinskaya clinic on 28 March 2001. In addition, the applicants and other witnesses submitted that he had some fingers missing, one ear had been cut off and several bones had been fractured. On 28 March 2001 the Grozny district civil registry office issued a death certificate for Odes Mitayev , born in 1972. The place and date of death were recorded as Pobedinskoye , 21 February 2001.

No medical death certificate was drawn up in respect of Magomed Magomadov , but the applicants submitted that his face had been disfigured, both eyes had been missing, part of the skin had been taken off the face and numerous bones had been fractured. On 3 December 2001 the Grozny district civil registry office issued a death certificate for Magomed Magomadov , born in 1969. The place and date of death were recorded as Grozny , 21 February 2001.

4. Further investigation into the killings

Following the discovery of the bodies and their return to Raduzhnoye , a group of investigators from the local police, the district prosecutor ’ s office and the Chechnya Prosecutor ’ s Office came to the village on 22 and 23 February 2001. They questioned the applicants and other villagers who had been detained together with the three men. The applicants submitted that during the questioning the men had been threatened and ordered not to speak about their detention at Khankala .

On 24 February 2001 the first applicant was asked to accompany the Chechnya Prosecutor and other officials to Zdorovye , so that he could show where the bodies had been discovered.

Following that visit several dozen bodies, dumped in the village, were collected and transferred to a temporary location in Grozny belonging to the Emercom . The NGO Memorial made video footage of the bodies at the Emercom base and submitted the footage to a medical expert for comments. The expert remarked that many of the victims had been blindfolded and had their hands tied behind their backs and some had firearms wounds to the head, all of which were consistent with summary executions. The expert also remarked that the bodies were in various stages of decomposition, and so the times of death could vary significantly.

The discovery of the bodies, their identification and the fact that at least twenty of them had been identified by relatives as belonging to persons who had been detained by the servicemen, were widely reported in the press and by NGOs. The applicants submitted press articles and NGO reports on this issue.

The Government in their submissions stated that in February 2001 in the Oktyabrskiy district of Grozny the remains of fifty-one persons showing signs of violent death had been found. Among them were the bodies of the applicants ’ three relatives. On 24 February 2001 the Grozny Town Prosecutor ’ s Office opened criminal investigation file no. 21073, under Article 105 part 2 of the Criminal Code (murder in aggravating circumstances). On 6 March 2001 the investigation was joined to case no. 19012 concerning the kidnapping of the applicants ’ three relatives. In May 2003 the task of investigating the murders of Said- Rakhman Musayev , Odes Mitayev and Magomad Magomadov was transferred to the Grozny District Prosecutor ’ s Office. The murders of other persons whose bodies had been found there were under investigation in the prosecutor ’ s offices.

On 4 March 2001 the third applicant was granted victim status in criminal case no. 19012 in relation to his brother ’ s murder.

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 applicants ’ case. The document stated that sixteen out of nineteen identified bodies had belonged to persons previously detained by the State authorities. On 10 March 2001 the remaining unidentified 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 forensic examinations had not been carried out at all or only in a superficial manner. No detailed examination of the bodies had taken place, the bodies had not been freed from foreign objects such as clothes, ropes or pieces of cloth and no detailed descriptions of the wounds and other injuries had been made. Finally, the hasty burial of the remains had rendered further identification and investigation almost impossible.

In August 2001 the applicants wrote to the OSCE mission in Chechnya . They stated that they had had no news of the investigation into their relatives ’ murders since March, and asked for their assistance.

On 21 August 2001 the Interfax News Agency reported on progress in the investigation of crimes committed by servicemen in Chechnya . The Chechnya 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 rebel fighters.

On 16 December 2002 the applicants ’ representatives wrote to the Grozny District Prosecutor ’ s Office and asked them about progress in the investigation of criminal case no. 19012. There was no reply to that letter.

On 25 December 2002 the first applicant handed in his complaint to the Grozny District Prosecutor ’ s Office, requesting that further investigation be conducted into the killings and that the relatives be informed of the results.

On 17 April 2003 the applicants ’ representatives asked the Grozny District Prosecutor ’ s Office to grant victim status to the second and third applicants as close relatives of the men who had been killed.

On 17 June 2003 the Grozny District Prosecutor ’ s Office granted the second applicant victim status in criminal case no. 19012 concerning her son ’ s abduction by “unidentified armed persons dressed in camouflage uniforms and using two APCs and four Ural trucks”. The decision stated that the whereabouts of Odes Mitayev had not been established.

On 17 November 2003 the Grozny District Prosecutor ’ s Office informed the first and second applicants that criminal case no. 19012 concerning their sons ’ abduction had been pending with the Grozny District Prosecutor ’ s Office since 19 February 2001. On 25 May 2003 the Chechnya Prosecutor ’ s Office had opened criminal investigation no. 42110 under Article 105 part 2 of the Criminal Code (murder in aggravating circumstances) into the murder of Mr. O. Mitayev , Mr S.- R.Musayev and Mr M. Magomadov . On 16 June 2003 the two cases had been joined.

On 6 February 2004 the SRJI asked the Grozny District Prosecutor ’ s Office to inform them and the relatives of the men who had been killed of progress in the investigation and to forward them the procedural decisions relating to the adjournment and reopening of the investigation. The letter specified that the applicants could not appeal any procedural decisions before a court in the absence of information about such decisions. On 11 February 2005 the SRJI reminded the Grozny District Prosecutor ’ s Office of their request and noted that they had received no reply to their previous letter. Both letters were sent by registered mail.

On 15 February 2005 the applicants complained to the Chechnya Prosecutor ’ s Office of the ineffectiveness of the investigation carried out by the Grozny District Prosecutor ’ s Office into their relatives ’ abduction and murder. The applicants stated in detail the facts of their relatives ’ apprehension, the discovery of their bodies and the detention and release of other men from Pobedinskoye and Raduzhnoye . They stated that the prosecutor ’ s office had not carried out the necessary investigative steps and had failed to communicate to the victims any information concerning its status.

On 31 March 2005 the Chechnya Prosecutor ’ s Office replied to the SRJI that the criminal case was pending with the Grozny District Prosecutor ’ s Office and that under Article 161 of the Code of Criminal Procedure information about a preliminary investigation could not be disclosed.

On 15 July 2005 the investigation granted victim status to Markha M., the mother of Said- Rakhman Musayev . The decision stated that “on the night of 10 to 11 December 200 unidentified persons armed with automatic rifles and wearing military uniforms, using two APCs and four Ural vehicles, detained and took away twenty-one persons from the villages of Pobedinskoye and Raduzhnoye in the Grozny district. Eighteen of them were released within the following week, but three persons – M.A. Magomadov , S.-R. M. Musayev and O.D. Mitayev – continued to be unlawfully detained in an unidentified place of detention. Between 24 February and mid-March 2001 in the territory of the holiday village of Zdorovye in the Oktybrskiy district of Grozny 51 human remains showing signs of violent death were found, among them the bodies of the above ‑ mentioned three persons”.

On 12 August 2005 the Grozny District Prosecutor ’ s Office informed the first applicant that the investigation in criminal case no. 19012 had been adjourned and that this decision was subject to appeal to a higher-ranking prosecutor or to a court.

5. Information about the investigation submitted by the Government

In reply to the Court ’ s requests, the Government submitted the following information concerning the progress of the investigation. They did not submit copies of any documents to which they referred.

On 4 March 2001 the first applicant was questioned and granted victim status. He was again questioned on 13 March, 19 March and 23 March 2001. He stated that he had learnt from other villagers of his son ’ s abduction by unknown persons on 11 December 2000. Other persons who had been detained together with his son could not identify the captors and did not recognise the place where they had been detained. The first applicant further explained that on 21 February 2001 he had found his son ’ s body in the abandoned holiday village in the Oktyabrskiy district of Grozny, together with the bodies of M. Magomadov and O. Mitayev .

On 7 March 2001 the third applicant was questioned and granted victim status in the proceedings relating to his brother ’ s abduction. The third applicant was again questioned on 11 and 13 March 2001. On 13 March 2001 the investigation questioned Mr. A. U., Odes Mitayev ’ s uncle, who was granted victim status on the same day.

The relatives of the three victims stated in similar submissions that they had buried the bodies without any official expert examinations. Although it would be impossible to establish the reasons for the persons ’ deaths without a forensic expert report, the relatives refused to indicate the places where they were buried; this, in the Government ’ s opinion, was an impediment to the investigation.

On 13 March 2001 the investigation questioned and granted victim status to six persons who had been detained together with the applicants ’ three relatives. Two others were questioned and accorded the status of victim in September 2003. They stated that while in detention in the unknown place, they had been blindfolded and would be unable to identify their captors. Another man refused to testify in September 2003, in accordance with Article 51 of the Constitution. It was not possible to question other persons who had been kidnapped or who might be aware of the details of the crime, since they had absconded from the investigation and left their permanent places of residence. The investigation was continuing to try to find them.

Similar statements about the circumstances of the abduction of their neighbours and relatives were collected from over fifty residents of the villages of Raduzhnoye and Pobedinskoye .

The Government further informed the Court that the investigation had questioned servicemen of the detachments of the Ministry of the Interior who had served in Chechnya , who had stated that they had not been involved in the special operations in Raduzhnoye and Pobedinskoye on 11 December 2000.

Between February 2001 and September 2005 the proceedings in the investigation of case file no. 19012 were adjourned on nine occasions , owing to a failure to identify the persons who had committed the crime, and each time reopened. On 20 September 2005 the decision to adjourn the proceedings was quashed and an investigator from the Grozny District Prosecutor ’ s Office was put in charge of the case. The Government stated that the persons who had victim status had been regularly informed of the decisions taken in the course of the investigation. The progress of the investigation was being monitored by the Prosecutor General ’ s Office.

The Government conceded that the investigation carried out into the abduction and murder of Said- Rakhman Musayev , Odes Mitayev and Magomad Magomadov had failed to establish the persons who had been involved in the crime. Between March 2001 and October 2003 the investigation had sought relevant information from various “competent authorities” and had carried out other steps aimed at solving the crime. The investigation found no evidence to support the involvement of the “special branches of the power structures” ( специальных подразделений силовых структур ) in the crime. The law-enforcement authorities of Chechnya had never arrested or detained Mr Musayev , Mr Mitayev or Mr Magomadov on criminal or administrative charges and had not carried out a criminal investigation directed against any of them. The Ministry of the Interior stated that no special operations had been carried out in respect of the three men and that they had never detained them.

Despite specific request s made by the Court on two occasions , the Government did not submit any documents from the file in criminal case no. 19012, except for a note with indications of the dates of the procedural steps and a copy of the list of documents contained in the case file. 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 Russian Code of Criminal Procedure , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . 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 transmit it to others .

6. The applicants ’ request to withdraw the application

In March 2005 the applicants ’ representative informed the Court that the third and fourth applicants, the brother and mother of Magomad Magomadov , wished to withdraw their complaints out of fear for their lives. No further details were given.

The Court put a question to the parties on this subject. In their submissions in August 2005 the Government stated that in March 2005 the Grozny District Prosecutor ’ s Office had carried out an inquiry into the allegations of threats and had found them unsubstantiated. The applicants apparently stated that they had never received any threats with regard to their application to the Court. They also allegedly confirmed that their decision to withdraw their application to the Court had been taken on their own initiative. On 30 June 2005 the Grozny District Prosecutor ’ s Office took a decision not to institute criminal proceedings in the absence of any corpus delicti . The Government did not submit any documents related to this inquiry.

In their submissions on the admissibility and merits of the case filed in November 2005 the third and the fourth applicants did not refer to their statements of March 2005.

COMPLAINT S

1. The applicants submitted that Article 2 of the Convention had been violated in respect of their relatives Said- Rakhman Musayev , Odes Mitayev and Magomed Magomadov . They submitted that the circumstances of their relatives ’ detention and the discovery of their bodies indicated that they had been killed by the State authorities. They further submitted that there had been a violation of the procedural aspect of Article 2 since no effective investigation had been carried out into the circumstances of their relatives ’ detention and murder.

2. The applicants complained that the circumstances of their detention and traces on the bodies strongly indicated that Said- Rakhman Musayev , Odes Mitayev and Magomed Magomadov had been subjected to ill ‑ treatment in violation of Article 3 of the Convention. They further submitted that the authorities had failed to investigate effectively the allegations of ill-treatment and had therefore failed in their positive obligations under Article 3.

3. The applicants submitted that on account of the anguish and emotional distress they had suffered in connection with the detention and murder of their relatives they had been subjected to ill-treatment falling within the scope of Article 3 of the Convention.

4. The applicants complained that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, had been violated in respect of Said ‑ Rakhman Musayev , Odes Mitayev and Magomed Magomadov .

5. The applicants argued that in the absence of results from the criminal investigation they had had no effective access to a court, in violation of Article 6.

6. The applicants complained that they had had no effective remedies in respect of the alleged violations of Articles 2, 3 and 5, as guaranteed by Article 13 of the Convention.

7. The applicants alleged, in their latest submissions, that the Government ’ s failure to produce copies of the criminal investigation files amounted to a violation of Article 38 § 1 of the Convention.

THE LAW

A. The Government ’ s objection concerning exhaustion of domestic remedies

The Government contended that the application should be declared inadmissible for non- exhaust ion of domestic remedies . They noted in this regard that the investigation into the abduction and murder of the applicant s ’ relatives had not yet been completed. They also referred to Article 125 of the Code of Criminal Procedure, which allowed the participants in criminal proceedings to appeal to a court against the actions of the investigation.

The applicants disputed the Government ’ s objection. They argued that the criminal investigation had proved to be ineffective and that the remedy suggested by the Government would not be adequate or effective. They referred by way of example to other cases concerning the investigation of abuses committed by the federal forces in Chechnya where complaints submitted under that procedure had proved to be ineffective.

The Court considers that the question of exhaustion of domestic remedies is so closely linked to the complaint about the effectiveness of the investigation, and thus 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 s complained under Article 2 of the Convention of a violation of the right to life of Said- Rakhman Musayev , Odes Mitayev and Magomed Magomadov 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 the applicants ’ three relatives ’ abduction and murder were under investigation. It had not been established that State agents had been involved in the abduction. The investigation was in compliance with Article 2 of the Convention.

The applicants submitted that the circumstances of their relatives ’ detention and the fact that their bodies had been found in a mass grave established beyond reasonable doubt that they had been killed by State authorities. The applicants contended that the detention of their relatives had occurred within the context of a large-scale sweeping operation which had taken place in several villages at the time. The persons concerned had been apprehended by a large group of armed personnel wearing military uniforms and using armoured vehicles, which were not used by the illegal armed groups; the latter, moreover, could not move freely around the area during the operation. The persons who had been released testified that they had been detained at the Russian military base at Khankala . The applicants stressed that the bodies of their relatives had been found in the immediate vicinity of Khankala .

As regards the procedural obligation under Article 2, the applicants argued that even though an investigation had been mounted into the abductions, it was inefficient and unable to demonstrate any progress over a period of several years. The investigation into the abduction and murder of their relatives has been opened with an unacceptable delay. No steps had been taken by the investigation to identify and question the possible abductors. They referred to a number of other omissions and delays transpiring from the limited information available concerning the progress of the investigation.

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 s complained that their relatives had been subjected to treatment in breach of Article 3 and that no investigation had been carried out into this allegation. They also stated that as a result of their close relatives ’ abduction and subsequent murder and the authorities ’ complacency in the face of their complaints they had been subjected to treatment in violation of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government denied these allegations .

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 applicants complained that their relatives had been subjected to unacknowledged detention and thus deprived of their 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 there was no evidence that Mr Mitayev , Mr Musayev and Mr Magomadov ha d been deprived of their liberty in violation of Article 5 of the Convention.

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.

4. T he applicant s also complained of their inability to access a court under Article 6 of the Convent ion, which reads, in relevant parts:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government disputed this allegation.

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.

5. The applicant s complained under Article 13 of the Convention that they had had no effective remedies in respect of the alleged violations 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 Governme nt contended that the applicants had had access to effective domestic remedies, as required by Article 13 of the Convention, and that the Russian authorities had not prevented them from using those remedies. In particular, the applicants had been granted the status of victims in the criminal proceedings concerning their relatives ’ abduction and received replies to their applications submitted within the framework of the proceedings. The investigation was still pending . At the same time the applicants had not applied to the domestic courts with any complaints concerning either the unlawful detention of their relatives or the actions of the agents of the law-enforcement bodies. They had not submitted civil claims for damages either.

The applicant s alleged the existence of an administrative practice of non ‑ investigation of crimes committed by the Russian security forces in Chechnya , which would make any remedies theoretically available illusory. They noted that they had in any event applied to the domestic authorities with regard to the investigation of a criminal case, but that the investigation had been neither effective nor adequate.

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

Declares the application admissible, without prejudg ing the merits .

Søren Nielsen Loukis Loucaides Registrar President

[1] The third applicant, Magomed Magomadov , complains of the detention and murder of his brother, whose name is also Magomed Magomadov .