FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7654/02 by Dusid AYUBOV against Russia

The European Court of Human Rights (First Section), sitting on 5 July 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr S.E. Jebens , Mr G. Malinverni, judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 31 January 2002,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The present application was originally brought by Mr Dusid Ayubov, born in 1926. He was represented before the Court by lawyers of the Memorial Human Rights Centre ( Moscow ) and the European Human Rights Advocacy Centre ( London ). In a letter of 31 January 2005 the applicant ’ s representatives informed the Court that the applicant had died on 9 January 2003, and that his wife, Ms Ashat Ayubova, had expressed her intention to pursue the application on the applicant ’ s behalf. In a letter of 26 December 2005 Ms Ashat Ayubova reiterated her intention to pursue the present application before the Court. She is a Russian national and l ives in the city of Grozny , Chechnya . The Russian Government (“the Government”) we re represented by Mr P. Laptev , Representative of the Russian Federation at the European Court of Human Rights .

A. The circumstances of the case

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

The applicant and his wife, Ms Ashat Ayubova, are parents of Mr Adam Ayubov, born in 1959. They lived in Grozny in their own house at 17 Narvskaya Street with other family members. In the winter of 1999 – 2000 the applicant and other members of his family left Grozny because of the hostilities. Adam Ayubov remained in Grozny in order to guard the house and property. He was married and had two children. Before the unrest in Chechnya had started he used to serve in the elite troops of the Ministry of the Interior and held the highest sport title of the USSR .

1. Events of 19 January 2000

On 19 January 2000 a group of armed men in camouflage uniforms arrived at Narvskaya Street in an Ural military truck. The applicant, who had not witnessed his son ’ s detention referred to eye witness statements of his neighbours to the effect that those had been federal servicemen. According to the Government, they were “unidentified armed men in camouflage uniforms”.

The men checked the residents ’ documents and ordered three men – Adam Ayubov, V. Sh. and Vl. Sh. – to get into the truck. The neighbours who were present in the street tried to intervene, and for about 20 minutes obstructed the vehicle, asking the men in camouflage uniforms to release the three men and saying that they had not been involved in anything illegal. Despite their efforts the applicant ’ s son and the Sh. brothers were taken away.

The applicant submitted with reference to his neighbours ’ statements that about an hour later the same Ural truck with the same armed men in camouflage uniforms had returned and destroyed the house at 17 Narvskaya Street and two cars in the courtyard with a flame-thrower. The applicant produced photographs of his destroyed house and a list of his destroyed possessions.

V. and Vl. Sh. were released later that day. They stated that they had been detained by a detachment of the police special force (OMON) from Novosibirsk .

The applicant and his family have had no news of Adam Ayubov after that date.

According to Adam Ayubov ’ s sister, Ms Liza Azimova, on 19 January 2000 the Russian TV channel NTV showed an interview with Russian servicemen concerning the military actions in Grozny , which was recorded in the vicinity of the Ayubov family domicile. One of the servicemen mentioned the capture of a Chechen sniper, “a master of sports in shooting”, briefly showed a passport with that man ’ s photograph and stated that the sniper ’ s name was Arsanov [rather than Ayubov]. Ms Azimova insisted that she had recognised her brother ’ s photograph in the passport and that he had been the only master of sports in shooting in the Northern Caucasus , and that therefore the servicemen had been describing the arrest of Adam Ayubov. A copy of the aforementioned interview has been submitted to the Court.

2. The applicant ’ s search for Adam Ayubov

As soon as the applicant learnt of his son ’ s detention, he and other members of the family started searching for him. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the adminis trative authorities in Chechnya . He also personally visited military commander ’ s offices and pre-trial detention centres in Chechnya and further afield in the region. In the letters addressed t o the authorities the applicant stated the facts of Adam Ayubov ’ s detention and asked for assistance and details on the investigation.

The applicant was given no substantive information from official bodies about the investigation into his son ’ s disappearance. On several occasions he received copies of letters stating that his requests had been forwarded to the different prosecutors ’ services.

According to the applicant, he had first applied to a prosecutor ’ s office in April 2000.

On 10 and 16 June 2000 the prosecutor ’ s office of the Chechen Republic ( прокуратура Чеченской Республики – “the republican prosecutor ’ s office”) forwarded the applicant ’ s complaints to the Grozny prosecutor ’ s office ( прокуратура г . Грозного ).

On 3 July 2000 the Memorial Human Rights Centre wrote on the applicant ’ s behalf to the republican prosecutor ’ s office. They stated the facts of Adam Ayubov ’ s detention, listed the neighbours who had witnessed it and asked for information about his whereabouts.

On 8 August 2000 the Grozny prosecutor ’ s office forwarded the applicant ’ s complaint to the temporary district office of the interior of the Staropromyslovskiy District of Grozny. The letter instructed the district office to “conduct a full and thorough verification of the applicant ’ s complaint, in accordance with Article 109 of the Code of Criminal Procedure” which obliged investigative bodies to verify facts stated in a complaint and to decide within three days whether a criminal investigation should be opened.

On 10 August 2000 the republican prosecutor ’ s office forwarded one of the applicant ’ s letters to the Chechen Department of the Interior for “organisation of a search for a missing person” and another one to the Grozny prosecutor ’ s office.

On 18 January 2001 the Department of Justice of the Republic of Ingushetia , in reply to a request concerning the whereabouts of Adam Ayubov who had been detained by servicemen on 19 January 2000, stated that they had requested the Ministry of Justice to check whether Adam Ayubov was being kept in any detention centre.

On 28 March 2001 the applicant ’ s family submitted to the Zavodskoy District Administration of Grozny a request to investigate his son ’ s disappearance, co-signed by eight of his neighbours. The neighbours described Adam Ayubov as a good-natured man who had no links with any illegal groups and who had on many occasions risked his own life to help his neighbours during the hostilities in the winter of 1999 – 2000.

On the same day the Zavodskoy District Administration wrote to the Memorial Human Rights Centre, asking them to help the applicant to find his son, “who had been taken from his home on 19 January 2000 by the servicemen of the Novosibirsk OMON during a so-called ‘ sweeping-up ’ operation”.

On 6 April 2001 the Memorial Human Rights Centre wrote to the Prosecutor General ’ s Office on the applicant ’ s behalf. Referring to their letter of 3 July 2000, they stated the known facts of Adam Ayubov ’ s detention and summarised the correspondence maintained by the applicant. They enquired whether a criminal investigation had been opened into Adam Ayubov ’ s disappearance, and requested an update on the proceedings. It appears that no answer was received to that letter.

3. Official investigation

It does not appear that the applicant or his family members have ever been provided with any information relating to the investigation into the events of 19 January 2000.

Referring to the information provided by the Prosecutor General ’ s Office, the Gove rnment submitted in their memorials dated 17 February and 18 May 200 5 that on 14 November 2000, the Grozny prosecutor ’ s office had instituted a criminal investigation into the abduction of the applicant ’ s son as well as misappropriation and intentional infliction of damage by setting fire on the property of the Ayubov family. The case file was assigned the number 12275.

It also appears that at some point the case was transferred to the prosecutor ’ s office of the Zavodskoy District ( Заводская районная прокуратура – “ district prosecutor ’ s office ”).

According to the Government, in the context of those proceedings on 21 November 2000 an investigator of the prosecutor ’ s office had examined the house of the Ayubov family. The applicant had been granted the status of victim of a crime and questioned on 24 November 2000. Following the applicant ’ s death in 2003, his wife, Adam Ayubov ’ s mother, had been declared a victim and questioned on 3 January 2005. The investigating authorities had also questioned Adam Ayubov ’ s brother on 6 and 10 January 2005, granted him the status of a victim on 10 January 2005 and declared him a civil claimant in the criminal case on 11 January 2005. The latter had produced photographs of the burnt property which had been included in the file of criminal case no. 12275.

In the Government ’ s submission, the investigating authorities had also questioned nine witnesses, the applicant ’ s neighbours and relatives, who had confirmed the circumstances of Adam Ayubov ’ s abduction and stated that they had had no information concerning his whereabouts. The Government did not specify on what date witness statements had been obtained . According to the Government, it had been impossible to establish other witnesses in the case but the search for them was currently underway . They also stated that the investigating authorities had sent a number of queries to various State bodies on 1 May, 30 August and 26 November 2000, 5, 8, 9, 11 and 12 January 2005 and 20 April 2000 and undertaken other investigative measures, but did not specify what those measures had been.

Finally, the Government submitted that the investigation had been suspended and resumed on several occasion, but had failed to identify those responsible so far. It had been reopened most recently on 30 December 2004 and 20 April 2005 and was being supervised by the Prosecutor General ’ s Office.

Despite specific requests made by the Court on two occasions, the Government did not submit a copy of any of the documents to which they referred. Relying on the information obtained from the Prosecutor General ’ s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure , since the file contained information of a military nature and personal data concerning the witnesses or other participants of 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 to transmit it to others”.

In their additional memorial of 30 January 2007, the Government submitted copies of several documents which included:

(a) procedural decisions of 20 May 2005, 28 September and 4 November 2006 and 19 January 2007 suspending and reopening the investigation in case no. 12275;

(b) investigators ’ decisions of 4 October 2006 and 19 January 2007 to take up case no. 12275;

(c) letters issued in 2005-2007 informing the applicant ’ s wife and her other son, Adam Ayubov ’ s brother, of the suspension and re-opening of the investigation in criminal case no. 12275.

B. Rele vant domestic law

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 161 of the new CCP stipulates that data from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator , but only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in criminal proceedings without their permission.

COMPLAINTS

1. The applicant complained under Article 2 of the Convention of a violation of the right to life in respect of his son, Adam Ayubov, and the absence of effective investigation into the matter.

2. The applicant further claimed 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 his son.

3. The applicant also complained under Article 1 of Protocol No. 1 about the destruction of his property.

4 . The applicant submitted that there were no effective remedies in respect of the above violations of his rights, contrary to Article 13 of the Convention.

5. Lastly, in a letter of 4 April 2005 the applicant ’ s wife complained on his behalf that the Government ’ s refusal to submit a file in criminal case no. 12275 was in breach of the State ’ s obligations under Article 34 and Article 38 § 1 of the Convention.

THE LAW

The applicant raised complaints set out above relying on Articles 2, 5 and 13 of the Convention and Article 1 of Protocol No. 1 which, in so far as relevant, read as follows:

Article 2

“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.”

Article 5

“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.”

Article 13

“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.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A . Exhaustion of domestic remedies

1. Submissions by the parties

The Government contended that the application should be declared inadmissible for non- exhaust ion of domestic remedies. They submitted that the investigation into the abduction of the applicant ’ s son had not yet been completed. They further referred to the Constitution and other domestic legal acts and argued that it had been open to the applicant to file court complaints about the allegedly unlawful detention of his son or to challenge in court any actions or omissions of the investigating or other law-enforcement authorities . In particular, in the Government ’ s submission, the applicant could have applied directly to the Supreme Court of Russia. However, he had not availed himself of any such remedy. As regards the applicant ’ s complaint concerning the property, the Government stated that the relevant provisions of the Russian Civil Code entitled the applicant for compensation in civil proceedings of the damage inflicted on his property by the person who had caused the damage; however, the applicant had never brought such a claim. The Government enclosed a number of letters from various higher courts in Russia , stating that the applicant had never lodged complaints regarding his son ’ s detention, the destruction of his property or the authorities ’ inactivity with the respective courts or sought compensation of the damaged inflicted on his property .

The applicant ’ s wife, on his behalf, contested the Government ’ s objection. She first stated that in 2000 it had been impossible 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. The applicant ’ s wife further argued that the fact that the investigation into the circumstances of her son ’ s disappearance was still pending cast doubt upon its effectiveness rather than indicating that the applicant ’ s complaints were premature. She also contended that the Government had failed to demonstrate the effectiveness of the domestic remedies invoked by them. In particular, she pointed out that under relevant provisions of national law the applicant would have only had the standing to challenge before a court the detention of his son if the latter had been a minor, which clearly had not been the case, and that, in any event, in the absence of any information concerning the place of his son ’ s detention, the applicant had been deprived of the possibility, even theoretically, to apply to a court which would have territorial jurisdiction over such a complaint. The applicant ’ s wife next argued that it was impossible to bring any civil claim for compensation until those responsible for the crime had been identified in course of criminal proceedings. She also referred to the cases of Isayeva, Yusupova and Bazayeva v. Russia (nos. 57947/00, 57948/00 and 57949/00 , judgment of 24 February 2005, § 149 ), Yaşa v. Turkey (judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 74) and Selçuk and Asker v. Turkey (judgment of 4 April 1998, Reports 1998-II, § 96) and argued that the applicant had not been obliged to pursue any civil remedy as this would only lead to an award of damages and not to the identification and punishment of those responsible, as required by the Court ’ s settled case-law in relation to complaints such as his ones.

2. 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.

B . As to the merits of the application

1. The Government

The Government relied on the information provided by the Prosecutor General ’ s Office and argued that the investigation had not obtained any evidence to the effect that Adam Ayubov was dead, or that representatives of the federal power structures had been involved in his abduction or alleged killing. They argued therefore that there were no grounds to claim that Adam Ayubov ’ s right to life secured by Article 2 of the Convention had been breached. The Government advanced no arguments regarding their compliance with the procedural obligation under Article 2 of the Convention.

In the Government ’ s submission, there was no evidence to confirm that the applicant ’ s son had been detained in breach of the guarantees set out in Article 5 of the Convention. Adam Ayubov was not listed among the persons being kept in detention centres, and there was no information that any decision ordering his remand in custody had ever been taken. According to the Chechen Department of the Federal Security Service, no special operations had ever been carried out in his respect.

As regards the applicant ’ s complaint under Article 1 of Protocol No. 1, the Government argued that the investigation had not established those who had destroyed the applicant ’ s property, and therefore there were no grounds to claim that the representatives of the federal forces had been involved in that offence.

The Government also contended that the applicant had had effective domestic remedies, as required by Article 13 of the Convention, and the Russian authorities had not prevented her from using them. They submitted that Adam Ayubov ’ s relatives had been granted the status of victim and had received reasoned replies to all their requests made in the context of the investigation .

2. The applicant

The applicant ’ s wife contended that it was beyond reasonable doubt that Adam Ayubov had been detained by representatives of the federal forces, this fact having been confirmed by eyewitness statements, including those of the brothers Sh., who had been apprehended along with her son. She further stressed that Adam Ayubov had been apprehended in life-endangering circumstances, given that his arrest had been effected by a group of armed men who had arrived in military vehicles and had not produced any documents to authorise the arrest. In this respect she referred to a document of the Human Rights Watch reporting on a widespread practice of forced disappearances during the period in question. She thus argued that, in view of the above and given that her son remained missing for over five years, he may be presumed dead even in the absence of any formal evidence confirming his death. The applicant ’ s wife also invited the Court to draw inferences from the Government ’ s failure to provide any plausible explanation as to her son ’ s fate and from their refusal to submit the file of the criminal investigation.

The applicant ’ s wife further argued that the investigation in the present case had fallen short of the requirements of domestic law and the Convention standards. She pointed out that the investigation had not been commenced before 14 November 2001, i.e. ten months after her son ’ s arrest and disappearance. It was then discontinued and was not re-opened until the present application was communicated to the respondent Government. According to the applicant ’ s wife, the investigating authorities had failed to take essential steps, and namely to inspect the scene of the incident and to take photographs of the burnt property, to obtain expert opinions, to question witnesses of the incident, and in particular, the head of the Novosibirsk OMON, to examine custody records of that detachment, to establish which other forces had been operating in the area at the time. The investigation had by now been pending for several years, but had failed to identify those responsible.

The applicant ’ s wife claimed that her son ’ s 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 a procedure established by law or been formally registered.

The applicant ’ s wife further insisted that the house of her family had been set on fire by the same armed men who had taken away her son, and therefore the State ’ s responsibility under Article 1 of Protocol No. 1 was engaged. She argued that the infliction of damage on the house had constituted unjustified interference with the applicant ’ s property rights.

Lastly, the applicant ’ s wife relied on Article 13 of the Convention, alleging that in the applicant ’ s case the domestic remedies usually availab le had proved to be ineffective .

3. The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the present application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

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

Declares the application admissible, without pr ejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President