FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32059/02 by Esila Sultanovna AKHIYADOVA against Russia

The European Court of Human Rights ( First Section), sitting on 7 June 2007 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 12 August 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 applicant, M s Esila Sultanovna Akhiyadova , is a Russian national who was born in 1981 and lives in Makhkety , the Vedeno District, Chechnya . She is represented before the Court by lawyer s of the Stichti ng Russian Justice Initiative (“the SRJI”), a n NGO based in the Netherlands with a representative office in Russia . The respondent Government were represented by Mr P. Laptev , Representative of the Russian Federation at the European Court of Human Rights .

A. The circumstances of the case

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

The applicant was married to Magomed Khumaidov , born in 1977. They had a daughter, Seda Khumaidova , born in 2002, and lived in the village of Makhkety .

1. Detention of Magomed and Kharon Khumaidov

On 13 February 2002 , around 11 a.m. , a group of armed men wearing military camouflage uniforms and masks forcibly entered the Khumaidov family ’ s house in Makhkety . According to the applicant, they were federal servicemen, whilst, in the Government submission, they were “unidentified persons”.

The applicant, her husband, their fifteen-day-old daughter and the applicant ’ s father-in-law, Kharon Khumaidov , born in 1932, were inside the house at that moment. The men did not produce identity papers or any documents justifying their actions. They searched the house and apprehended the applicant ’ s husband and father-in-law without any explanations. Although Magomed and Kharon Khumaidov were only wearing trousers and shirts , they were not allowed to take their overcoat s. The men forced them into a military UAZ vehicle that had no registration numbers and took them to a base of the Federal Security Service ( Федеральная служба безопасности , “ the FSB”,) in the village of Khatuni .

According to the applicant, a number of residents of Makhkety witnessed the detention of her husband and father-in-law.

On 29 July 2002 a national newspaper Novaya Gazeta reported about the above events in its article “Stream line production of enemies” ( « Поточное производство врагов » ).

2. The applicant ’ s search for Magomed and Kharon Khumaidov

Immediately after the detention of Magomed and Kharon Khumaidov the applicant and other relatives arrived at the FSB base in Khatuni , enquired about the father and son Khumaidov and attempted to provide them with warm clothes. According to the first applicant, several FSB officers who had names or nicknames Damir , Shamil , Dima and Timur Yarulin talked to them. They refused to take the clothes but promised that the Khumaidov men would be released soon. Later the same officers told that Magomed and Kharon Khumaidov had been sent to the federal military base in Khankala , but refused to give further explanations.

From 13 February 2002 onwards the applicant repeatedly applied in person and in writing to various public bodies, including prosecutors at various levels, federal and regional ministries of the interior, administrative authorities of Chechnya, the Special Envoy of the Russian President in the Chechen Republic for Rights and Freedoms ( Специальный п редставитель Президента РФ по обеспечению прав и свобод человека и гражданина в Чеченской Республике ) , a deputy of the State Duma ( Государственная Дума ) and the Representative for Rights and Freedoms in Russia ( Уполномоченный по правам человека в РФ ). She was supported in her efforts by the Human Rights Watch (“the HRW”) and the SRJI. In their letters to the authorities the applicant and the NGOs described in detail the circumstances of detention of Magomed and Kharon Khumaidov , referred to the fact that a number of eye-witnesses had seen the Khumaidov men taken to the federal base in Khatuni , and asked for assistance and details of the investigation. In most cases these enquiries remained unanswered, or only formal responses were given by which the respective requests were forwarded to various prosecutor ’ s offices “for examination”.

In April 2002 the applicant spent a fortnight near the FSB base in Khatuni . Her attempts to receive any information about her missing relatives proved unsuccessful, as the federal servicemen refused to answer her queries.

3. Official investigation into the disappearance of Magomed and Kharon Khumaidov

On 18 June 2002 the prosecutor ’ s office of the Vedeno District ( прокуратура Веденского района , “the district prosecutor ’ s office”) instituted a criminal investigation into the disappearance of Magomed and Kharon Khumaidov under Article 126 (2) of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The file was given the number 73040.

On 5 July 2002 the district prosecutor ’ s office issued the applicant with a document confirming that on 18 June 2002 they had commenced an investigation in connection with the abduction of Magomed and Kharon Khumaidov by unidentified servicemen in the village of Makhkety .

On 18 July 2002 the prosecutor ’ s office of the Chechen Republic ( п рокуратура Чеченской Республики , “the republican prosecutor ’ s office”) referred the applicant ’ s application concerning her relatives ’ disappearance to the district prosecutor ’ s office for examination.

In a letter of 22 July 2002 the Administration of the Chechen Republic ( Администрация Чеченской Республики ) informed the applicant that her application had been forwarded to the district prosecutor ’ s office, the republican prosecutor ’ s office, the Vedeno District Office of the Interior ( отдел внутренних дел Введенского района , “the Vedeno ROVD”) and the Chechen Department of the Interior ( Управление внутренних дел МВД РФ по Чеченской республике ) .

On 22 July 2002 the Southern Federal Circuit Department of the Prosecutor General ’ s Office ( Управление Генеральной Прокуратуры РФ в Южном федеральном округе ) reported that the HRW application filed on the applicant ’ s behalf had been sent to the republican prosecutor ’ s office. The latter referred it further to the district prosecutor ’ s office on 6 August 2002.

On 15 August 2002 the republican prosecutor ’ s office informed the applicant that on 18 June 2002 criminal case no. 73040 had been opened in connection with the abduction of Magomed and Kharon Khumaidov by unidentified servicemen.

In a letter of 20 August 2002 the district prosecutor ’ s office notified the applicant that the investigation had established that servicemen of 45 th regiment had been involved in the abduction of her husband and father-in-law, and therefore on 22 July 2002 the criminal case had been referred to the military prosecutor of military unit no. 2011 ( военная прокуратура войсковой части 2011 ) in Shali for a further investigation. The letter stated that the criminal proceedings had subsequently been suspended as it was impossible to identify the alleged perpetrators.

On 23 August 2002 the Vedeno ROVD, with reference to the applicant ’ s letter of 22 July 2002, informed her that on 18 June 2002 criminal case no. 73040 had been opened in connection with the abduction of Magomed and Kharon Khumaidov by unidentified servicemen.

In a letter of 4 September 2002 the Office of the Representative for Rights and Freedoms in Russia notified the applicant that her complaint about the ineffective investigation into the abduction of her relatives had been transferred to the Prosecutor General ’ s Office. The latter forwarded the applicant ’ s complaint to the Southern Federal Circuit Department of the Prosecutor General ’ s Office on 17 September 2002.

On 8 October 2002 the republican prosecutor ’ s office informed the applicant of the main procedural steps taken in connection with the disappearance of her husband and father-in-law, and notably, stated that the criminal proceedings instituted on 18 June 2002 and then suspended on 18 August 2002 had been resumed on 30 August 2002 and that the case had been transmitted to the district prosecutor ’ s office for a further investigation. The applicant was invited to address her subsequent queries to the district prosecutor ’ s office.

On 18 November 2002 the SRJI, acting on the applicant ’ s behalf, enquired of the district prosecutor ’ s office about developments in the investigation into the abduction of Magomed and Kharon Khumaidov . In reply, the SRJI received a hand-written note stating that criminal case no. 73040 had been opened on 18 June 2002 and suspended on 18 August 2002.

On 11 March 2003 the Vedeno District Court of the Chechen Republic , upon the applicant ’ s request, certified the fact that her husband, Magomed Khumaidov , was a missing person, having confirmed that on 13 February 2002 Magomed Khumaidov had been taken away by masked servicemen and had then disappeared. The court based this finding on, inter alia , statements of witnesses A. and S., residents of Makhkety .

On 17 April 2003 the SRJI requested the district prosecutor ’ s office to grant the applicant the status of victim in criminal case no. 73040 and to furnish her with a copy of the respective decision. In a reply of 10 June 2003 the district prosecutor ’ s office stated that it was impossible to send the requested document to the SRJI, as they did not pertain to a category of those entitled under national law to receive procedural documents, and that the applicant could apply to the district prosecutor ’ s office for a copy of the decision granting her the status of victim. The letter continued that the file of criminal case no. 73040 had been destroyed as a result of a fire in December 2002, and that measures were being taken to reconstitute it.

By a decision of 27 October 2003 the district prosecutor ’ s office declared the applicant a victim in criminal case no. 73040 and notified her of that decision on the same date.

On 14 February 2004 the military prosecutor ’ s office of the United Group Alignment ( военная прокуратура Объединенной группы войск ) forwarded the applicant ’ s complaint concerning the detention and disappearance of her relatives to the military prosecutor ’ s office of military unit no. 20116 for investigation. In the absence of any reply to the letter of 14 February 2004, the military prosecutor ’ s office of the United Group Alignment re-sent copies of the applicant ’ s complaint on two occasions, 9 and 27 April 2004, and enquired about the results of its examination.

In two identical letters of 8 May and 4 June 2004 the military prosecutor ’ s office of military unit no. 20116 replied that they had carried out an inquiry in connection with the applicant ’ s complaints and established that at the material time military personnel of the military units supervised by the said prosecutor ’ s office had not conducted any special operations, had not detained any individuals or brought them to law-enforcement agencies. The letters invited the applicant to address her further queries to the district office of the interior or the district prosecutor ’ s office.

On 10 November 2004 the SRJI enquired of the district prosecutor ’ s office about the progress in the investigation and the steps taken.

On 24 December 2004 the republican prosecutor ’ s office replied that the SRJI ’ s application had been examined and that “criminal proceedings had been instituted in connection with the described events”.

In a letter of 22 July 2005 the republican prosecutor ’ s office sent the applicant ’ s request to establish her relatives ’ whereabouts to the district prosecutor ’ s office for examination.

Referring to the information provided by the Prosecutor General ’ s Office, the Government submitted in their memor ials dated 4 October and 3 November 200 5 that on 18 June 2002 the prosecutor ’ s office of the Vedeno District had instituted criminal proceedings under Article 126 (2) of the Russian Criminal Code (aggravated kidnapping) in connection with the detention and disappearance of Magomed and Kharon Khumaidov , and had then suspended them on 18 August 2002 for a failure to establish those responsible. On 17 December 2002 the case file that had been assigned the number 73040 had been destroyed in a fire as a result of the rebel fighters ’ attack on the premises of the district prosecutor ’ s office. According to the Government, on 18 October 2004 the acting prosecutor of the Vedeno District ordered that the file of criminal case no. 73040 be restored and the proceeding be resumed. The preliminary investigation was then suspended on 18 November 2004 and 13 October 2005 and then resumed on 13 August and 20 October 2005. The case was now being investigated by the prosecutor ’ s office of the Vedeno District. The investigation had failed to date to identify those responsible or to establish the whereabouts of the applicant ’ s two relatives.

The Government further submitted that the applicant had been declared a victim on 27 October 2004 [rather than 2003] and questioned on the said date and on 18 August 2005. On 15-17 August 2005 the investigating authorities interrogated three witnesses, namely the head of the administration of Makhety , the applicant ’ s sister-in-law and the applicant ’ s neighbour. On 18 August 2005 the authorities inspected the scene of the incident at the applicant ’ s house, but “did not find any relevant evidence”.

Finally, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 20 October and 3 November 2004 as well as on 15 and 28 August 2005. In particular, the investigating authorities had sought and obtained information from the district military commander ’ s office, the Vedeno District Department of the Federal Security Service and the Russian Ministry of the Interior that the said bodies had conducted no special operations in the vicinity of Makhety at the period between 10 and 15 February 2002 and had not detained the Khumaidov father and son. The applicant ’ s relatives had not been listed among detainees of any detention centres in Chechnya .

Despite specific requests made by the Court on two occasions, the Government refused to submit a copy of the entire investigation file in case no. 73040, stating with reference to the information obtained from the Prosecutor General ’ s Office 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.

They only submitted several documents, which included:

(a) a copy of a procedural decision of 18 June 2002 instituting criminal proceedings in connection with the disappearance of the applicant ’ s relatives on 13 February 2002;

(b) copies of procedural decisions of 18 August 2002 and 20 October 2005 suspending and reopening criminal proceedings in connection with the disappearance of the applicant ’ s relatives;

(c) a copy of a procedural decision of 18 December 2002 on institution of criminal proceedings in connection with an explosion on the territory of the Vedeno VOVD leading to the destruction of property;

(d) copies of investigators ’ decisions of 18 October 2004 and 13 August 2005 taking up case no. 73040;

(e) a copy of a letter of 18 October 2004 informing the applicant of the restoration of the file of case no. 73040 ;

(f) a copy of a letter dated 13 May 2005 notifying the applicant that on 15 August 2005 the investigation in case no. 73040 had been resumed.

B. Relevant domestic law

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

Article 161 of the new CCP 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 about a violation of the right to life in respect of her relatives, Magomed and Kharon Khumaidov . The applicant submitted that the circumstances of their disappearance and the long period during which their whereabouts could not be established indicated that Magomed and Kharon Khumaidov had been killed by the federal forces. The applicant also complained that no effective investigation had been conducted into her relatives ’ disappearance.

2. The applicant further referred to Article 3 of the Convention, claiming that she had suffered severe mental distress and anguish in connection with the disappearance of her relatives and on account of the State ’ s failure to conduct a thorough investigation into the matter.

3. The applicant submitted that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrariness, were violated in respect of Magomed and Kharon Khumaidov .

4 . T he applic ant allege d that she had no effective remedies in respect of the above violations of her rights under Articles 2, 3 and 5, contrary to Article 13 of the Convention.

5. The applicant invoked Article 14 in conjunction with Articles 6 § 1 and 13 of the Convention, stating that the above violations occurred because of her and her relatives ’ Chechen ethnic origin and residence in Chechnya .

6. Lastly, in her observations of 21 December 2005 the applicant complained that the Government ’ s refusal to submit a copy of the file of the investigation into her relatives ’ disappearance was in breach of the State ’ s obligations under Articles 34 and 38 § 1 of the Convention.

THE LAW

The applicant raised complaints set out above relying on Articles 2, 3, 5, 13 and 14 of the Convention which, in so far as relevant, read as follo ws:

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 3

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

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 14

“The enjoyment of the right and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A . Exhaustion of domestic remedies

1. Submissions by the parties

The Government argued 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 relatives had not yet been completed. They further argued that it had been open to the applicant to file a court complaint against any actions or omissions of the investigating or other law-enforcement authorities ; however, she had not availed herself of that remedy.

The applicant contested the Government ’ s objection. She claimed that an administrative practice consisting in the authorities ’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in her case. In this connection the applicant relied on applications submitted to the Court by other individuals claiming to be victims of similar violations , and on documents by human rights NGO s and the Council of Europe . The applicant contended that, in any event, she had repeatedly applied to law-enforcement bodies, including various prosecutors, and had actively participated in the investigation. This avenue, however, had proved futile, given that the criminal investigation had by now been pending for several years but had failed to identify those involved in the illegal detention and disappearance of Magomed and Kharon Khumaidov despite compelling evidence confirming the involvement of federal servicemen. The applicant also argued that the Government had failed to demonstrate that a court complaint against the actions or omissions of the investigating authorities would have been an effective remedy in her situation, and therefore she had been under no obligation to make use of that remedy.

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 parties ’ submissions

(a) The Government

The Government contended that the investigation had not established the involvement of the State agents in the disappearance of Magomed and Kharon Khumaidov , that there was no convincing evidence that those two were dead, and that therefore there were no grounds to claim that the State had breached their right to life secured by Article 2 of the Convention. The Government further claimed that the investigation into the disappearance of the applicant ’ s relatives met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify those responsible.

The Government further submitted that “the materials of the criminal case do not make it possible to assess the degree of the applicant ’ s mental suffering in connection with the disappearance of her relatives”, that the domestic authorities had not taken any actions aiming at “humiliating, punishing or torturing” of the applicant. Therefore, in the Government ’ s opinion, Article 3 of the Convention was inapplicable in the applicant ’ s situation.

The Government asserted that the investigation had obtained no evidence that Magomed and Kharon Khumaidov had been deprived of their liberty in breach of Article 5 of the Convention. They claimed that the applicant had not submitted any documentary evidence confirming that her relatives had been detained by representatives of federal armed forces or security agencies and insisted that their right to liberty and security had not been violated.

The Government also contended that the fact that criminal proceedings had been instituted in connection with the disappearance of the applicant ’ s relatives and the fact that she had been granted the status of victim indicated 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 those remedies.

With regard to the applicant ’ s complaint under Article 14 of the Convention, the Government argued that she had never been discriminated against in the enjoyment of her Convention rights on any ground.

(b) The applicant

The applicant contested the Government ’ s arguments and maintained her complaints. In her opinion, it was beyond reasonable doubt that the men who had apprehended and taken away her husband and father-in-law on 13 February 2002 had represented federal forces, this fact having been confirmed by the materials of the criminal case opened in connection with these events. The applicant accordingly argued that following their arrest, Magomed and Kharon Khumaidov had been under the control of the State . She stressed that her relatives had been apprehended in life-endangering circumstances, given that they had been arrested by a group of armed men who had forcibly entered the applicant ’ s house. The applicant further claimed that the Government ’ s argument that her relatives were not listed among those being held in detention centres merely proved that their lives had been endangered after they had been arrested, since it was widespread practice in Chechnya that people apprehended by State agents were deprived of their lives immediately, or shortly , after being apprehended rather than being taken to detention centres. In this latter respect she referred to applications submitted to the Court by other individuals claiming to be victims of similar violations , and to documents by human rights NGO s. The applicant thus argued, relying on Article 2 of the Convention, that the fact that Magomed and Kharon Khumaidov remained missing since 13 February 2002 proved that they had been killed.

As regards the procedural aspect of Article 2 of the Convention, the applicant claimed that the authorities had failed in their obligation to carry out an effective investigation into the circumstances of her relatives ’ disappearance. She argued that the investigation had fallen short of the requirements of domestic law and the Convention standards. In particular, the applicant pointed out that, although she had immediately notified the authorities of her relatives ’ detention, no urgent measures to establish their whereabouts, or to identify those who had detained them, had followed and the investigation had not been commenced before 18 June 2002, i.e. four months after her relatives ’ detention. Since then it had been pending but had not brought any tangible results so far, having been repeatedly suspended and reopened. Furthermore, the investigating authorities had failed to inform the applicant about the decisions concerning the adjournment and reopening of the investigation or its progress. She had not been declared a victim until several years later. In support of her argument regarding the inefficiency of the investigation, the applicant also referred to the Government ’ s refusal to submit a copy of the file in the criminal case concerning her relatives ’ disappearance.

The applicant also maintained that she had endured severe mental suffering falling with in the scope of Article 3 of the Convention in view of the State ’ s indifference to her close relatives ’ disappearance and its repeated failure to inform her of the progress in the investigation .

The applicant subsequently argued that the detention of Magomed and Kharon Khumaidov 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 relied on Article 13 of the Convention, alleging that in her case the domestic remedies usually available had proved to be ineffective, given that the investigation had been pending for several years without any progress , that she had not been granted the status of victim of a crime until several years after the investigation had commenced and that all her applications to public bodies had remained unanswered or had only produced standard replies.

Lastly, the applicant maintained, referring to Article 14 of the Convention, that the aforementioned violations of her rights had occurred because she was ethnic Chechen.

2. 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 prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President