FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40464/02 by Tamusa AKHMADOVA and Larisa SADULAYEVA against Russia

The European Court of Human Rights ( First Section), sitting on 13 October 2005 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs S. Botoucharova , 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 31 October 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant s are Tamusa Khamidovna Akhmadova , born in 1957, and Larisa Abdulbekovna Sadulayeva, born in 1975. The applicants are Russian national s and are residents of Argun , Chechnya . At present they live in an IDP camp in Ingushetia. They are represented before the Court by the Stichting Russia Justice Initiative (SRJI), an NGO based in the Netherlands with offices in Moscow and in Ingushetia , Russia . The respondent Government are 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 Shamil Akhmadov

The first applicant ’ s son, Shamil Said- Khasanovich Akhmadov , born on 17 December 1975 , married the second applicant in 1992. They have five children – Layusa , born in 1993, Anzhela , born in 1995, Khedi , born in 1997, Magomed , born in 1998 and Fattakh , born in 2000. They lived in the town of Argun , about 10 km east of Grozny , where Shamil Akhmadov worked as a butcher in the market. The first and the second applicants are housewives.

On 10 March 2001 Chechen fighters stormed and briefly occupied the local television station in Argun . The NGO Memorial reported later that month that the rebels had used the television station to broadcast their own programme for about 40 minutes. It was also reported by several press agencies that a Russian military checkpoint came under attack that day causing casualties on both sides.

On 11-14 March 2001 the Russian military held a “mopping-up” operation ( zachistka ) of the town, apparently in response to the attacks of the previous day. On 13 March 2001 the Interfax news agency reported, referring to the military commander ’ s office, that the operation had been aimed at tracking down rebels and criminals, finding weapons and ammunition. The movement of transport and people was restricted and the roads from Argun to Shali and Grozny were closed. The commander ’ s office reported “tangible results” of the operation, including detention of “individuals who, according to intelligence, may have been involved in the terrorist acts and murders committed [in Argun ]”. The number of detainees was not disclosed.

On 12 March 2001 , between 12 and 2 pm , Shamil Akhmadov left his home at 12 Novaya Street in Argun . In the nearby Gudermesskaya Street several military vehicles were stationed, including armoured personnel carriers ( APCs ) and police UAZ cars. The servicemen detained Shamil Akhmadov . The second applicant, who was informed by a neighbour of the events, rushed to see what was going on. She saw her husband surrounded by a group of servicemen who talked to him and then threw him into an APC. She submitted the following account of the events:

“ 12 March 2001 was a cold but sunny day. I had a toothache and decided to go to a dentist. By that moment my husband had stayed at home for two months, because he was afraid to travel to Grozny . At first he wanted to accompany me to the dentist but then decided to stay at home. I went with a female relative, but as soon as I sat in the chair, the dentist ’ s wife Madina rushed into the office and told me that she had seen my husband Shamil being detained in the street. I immediately ran over there but was too late to save him.

He was at the intersection of the road to Gudermes with the road to the suburb. I guess he decided to accompany me because it was less than 500 metres away from the dental clinic. It ’ s not far from our house, maybe 300-400 metres. That day Shamil was wearing a white T-shirt, black sweatshirt, navy jacket and birch-coloured trousers.

From the distance I could see three APCs , one URAL truck and one or two UAZ vehicles. There was a group of armed people, but I do not know exactly how many. They were wearing milk-grey uniforms, some were young and others middle-aged.

I saw them talking to my husband, but could not make out what they told him. I do not know if he showed them his passport, but I know for sure that he had his passport with him. When I ran over there, they had already thrown Shamil , like a piece of cloth, into the APC, and when I reached them, closed the APC door and drove away in the direction of Gudermes . I did not see other civilians in the street, everyone else should have hidden away.”

The second applicant then rushed home and together with the first applicant they went to the military commandant ’ s office, where they talked to the commander, Nikolay Ivanovich Sidorenko . He told them that Shamil Akhmadov had not been brought to the commander ’ s office. For the next three days both applicants, along with other relatives of the detained persons, remained in front of the office awaiting news about the detainees.

According to a report issued by NGO Memorial in March 2001, 170 people were detained in houses and in the streets of Argun as a result of the mopping-up operation. An article published in July 2001 in the Los Angeles Times, based on the interviews with the local residents, put the figure of detainees at about 150. The relatives of the detainees gathered at the local commander ’ s office. In response to the events, the Chechnya Republican Prosecutor Mr Chernov and a Deputy Mayor of Grozny arrived to Argun on 17 March 2001 . Within several days most of those detained were released without any charges. However, 11 men detained were not released: Shamil Akhmadov , Muslim Batayev , Said- Magomed Dikiyev , Ali Eldiyev , Ayub Gairbekov , Ismail Khutiyev , Ali Labazanov , Ruslan Mezhidov , Abdul- Malik Tovzarkhanov , Ruslan Viskhadzhiyev , Abdul- Vakhab Yashurkayev .

The Government do not dispute the circumstances of Shamil Akhamdov ’ s detention as presented by the applicants. They submit that in 2001 Shamil Akhmadov was charged with a crime under Article 228 part 1 of the Criminal Code (possession of illegal drugs) in the Krasnodar Region, but he had fled from justice and breached the obligation not to leave a certain place. On 13 February 2001 the Sovetskiy District Court of Krasnodar put Shamil Akhmadov on the list of wanted persons. The Government further submit that Shamil Akhmadov was unemployed and had problems with drugs and alcohol.

2. Search for Shamil Akhmadov and the investigation

Immediately after the detention of Shamil Akhmadov the applicants started to search for him. They did so together with the relatives of the other ten men who had “disappeared”. The search was primarily carried out by the first applicant, while the second applicant remained at home to take care of the children. On numerous occasions, both in person and in writing, they applied to the prosecutors of various levels, to the Ministry of Interior, to the administrative authorities in Chechnya , to the Special Representative of the Russian President in the Chechen Republic for rights and freedoms, to media and to public figures.

In their letters addressed to the authorities the applicants stated the facts of Shamil Akhmadov ’ s detention and asked for assistance and details on the investigation. The first applicant maintained a folder with her letters and responses from the authorities; she also listed these in a diary. However, in February or March 2002 her house was raided by soldiers who took away the folder and the diary. As a result, she could provide copies of very few letters.

The first applicant also personally visited detention centres and prisons in Chechnya as well as further afield in the Northern Caucasus . She also went to places where unidentified bodies were discovered, having in the 14 months seen dozens of corpses across Chechnya .

The applicants received hardly any substantive information from the authorities about the investigation into Shamil Akhmadov ’ s disappearance. On several occasions they were sent copies of letters by which their requests had been forwarded to the different prosecutors ’ services.

At an unspecified date, soon after 11 March 2001 , the first applicant was questioned by an investigator at the military commander ’ s office. She went there with the mother of another “disappeared” person. The first applicant submits that she was neither summoned nor formally requested to see the investigator, but convinced the guards to let her into the compound. The investigator asked a lot of questions about the circumstances of the detention, the personal details of Shamil Akhmadov , what he had been wearing on the day of detention, what size of shoes he had, etc. The first applicant signed the transcript of the questioning at the end of the interview.

On 20 March 2001 the Chechnya Republican Prosecutor ’ s Office informed the first applicant that her complaint had been forwarded to the Argun Town Prosecutor ’ s Office for investigation.

On 19 April 2001 the first applicant addressed the military prosecutor ’ s office of military unit no. 20102 in Khankala . It replied on 24 April 2001 saying that her complaint had been forwarded to the Argun Town Prosecutor ’ s Office.

On 28 May 2001 an investigator from the Argun Town Prosecutor ’ s Office informed the applicant that on 23 March 2001 criminal case no. 45031 had been opened into her son ’ s disappearance under Article 126 part 2 of the Criminal Code – kidnapping of two or more persons committed by a group. The letter further stated that “in the course of the investigation the involvement of military servicemen in the abduction of your son and others was established” and that, on 11 May 2001 , the case had been transferred to the military prosecutor ’ s office of the military unit no. 20102.

On 3 September 2001 the Office of the Special Representative of the Russian President in the Chechen Republic for rights and freedoms informed the first applicant that her complaint had been forwarded to the Chechnya Republican Prosecutor ’ s Office.

About 8-9 months after the date of detention, the first applicant was at the military commander ’ s office and one of the guards told her that he had seen Shamil Akhmadov at the compound several days after the mopping-up operation. According to that guard, whose name the first applicant does not know, her son had been detained there for about two weeks and was badly beaten. After that he had been taken away to another place.

On 30 November 2001 the Argun Department of Interior issued a note to the second applicant, certifying that she was searching for her breadwinner, Shamil Akhmadov , who had been missing since 12 March 2001 . The note addressed humanitarian agencies and asked them to help the family with five small children.

On 21 March 2002 an investigator of the Argun Town Prosecutor ’ s Office informed the first applicant that according to “available information [the military prosecutor of military unit no. 20102] suspended the criminal investigation due to the failure to identify those responsible for the kidnapping of Akhmadov and others and due to failure to establish [his] whereabouts”.

On an unspecified date the first applicant travelled to Khankala with relatives of the other missing persons where they submitted their complaints to a military prosecutor. She claims sometime later to have received a letter from a military prosecutor that the investigation was going on and that the efforts to establish the whereabouts of Shamil Akhmadov were continuing.

On 12 March 2002 the first applicant applied to the Shali District Court seeking to declare her son a missing person, for the purpose of obtaining an allowance for the loss of breadwinner. In her application she stated the circumstances of her son ’ s detention and the failure of the investigative authorities to establish Shamil Akhmadov ’ s whereabouts.

3. Discovery of the bodies of the other detainees. Discovery of Shamil Akhmadov ’ s body and further investigation

Shortly after the “mopping-up” operation in Argun , four bodies were discovered on the edge of the Russian main military base in Khankala . These men were later identified as four of the 11 missing persons detained in Argun on 12 March 2001 .

In a report of March 2001 NGO Memorial, referring to a staff member of the military prosecutor ’ s office in Khankala , stated the following:

“On 13 March 2001 during the patrol near the Russian military base in Khankala military personnel discovered a fresh grave in an irrigation canal, which they initially mistook for a landmine. Instead of a landmine, however, the arriving sappers found human remains. Assisted by sappers and in the presence of representatives of a military prosecutor, four bodies were exhumed with bullet wounds to their backs and back of their heads. The bodies were cleaned and brought to [the base].

Because the bodies bore signs of violent death, the military prosecutor opened criminal investigation no. 14/33/0132-01. Between March 14 and 16, autopsies were conducted by forensic experts in Rostov and after that, on 19 March 2001 , the bodies were transferred for burial to the Ministry of Emergency Situations [ Emercom ] of Chechnya .”

A few days later the relatives identified the four bodies as persons detained on 12 March in Argun during the “mopping-up” – Muslim Batsiyev , Ayub Gairbekov , Ismail Khutiyev , Abdul- Malik Tovzarkhanov .

In early March 2002 three bodies were discovered by local residents in a grazing field on the outskirts of Argun . The grave was excavated by the military in the presence of a prosecutor, apparently, it had been mined. One of the bodies, with its head missing, was identified by his wife as belonging to Abdul- Vakhid Yashurkayev , who identified him by surgical scars. He was also among the 11 detained on 12 March 2001 . In March 2002 Memorial reported the discovery of Yashurkayev ’ s body in their press-release “ Argun . ‘ Disappearance ’ of Detainees. The ‘ Disappeared ’ are Found in Unmarked Graves”.

In late April 2002 the local residents discovered a body in a field outside Argun . Upon discovery the persons requested the military commandant ’ s office to exhume it, fearing that it, too, could be mined. One week later, military sappers exhumed the remains and brought it to the cemetery.

On 1 May 2002 the second applicant, who was informed of the discovery by her neighbours, went to the cemetery. She was accompanied by her husband ’ s grandmother. The second applicant immediately recognised the clothes her husband had been wearing on the day of detention. The body, which had been buried, was exhumed and reburied in a family grave the same day. The second applicant submits that the body was hardly more then bones. The right leg was broken, the upper half of the skull was missing and there were bullet holes on the clothes in the chest area. The second applicant collected the clothes and they are still in her possession.

The first applicant did not see her son ’ s body, as at that time she was out of Chechnya for medical reasons.

After the discovery of Shamil Akhmadov ’ s body, the applicants continued their attempts to obtain further investigation into the circumstances of the death of Shamil Akhmadov .

On 8 June 2002 the Argun Prosecutor ’ s Office issued a certificate to the second applicant to confirm that the prosecutor ’ s office had opened criminal investigation no. 45031 into the abduction of her husband on 12 March 2001 by unknown persons. It further confirmed that “on 1 May 2002 a skeletal corpse of an unknown man was discovered at the southern edge of Argun . Relatives identified him by the remaining items of clothing as Shamil Akhmadov , born on 17 December 1975 in Argun , who had been kidnapped by unidentified persons on 12 March 2001 in Argun . Examination of the body showed that Akhmadov ’ s death had been caused by violence, based on bullet holes in the skull bones, upper part of the neck-bone and fractures of the ribs. Taking into account the absence of any soft tissues on the bones, death probably occurred in March 2001”.

On 21 August 2002 the civil registration office of Argun issued a death certificate for Shamil Akhmadov , born in 1975, who had died on 22 March 2001 in Argun .

On 5 May 2003 the SRJI, acting upon the applicants ’ behalf, wrote to the Argun Prosecutor ’ s Office, asking for news about the investigation of the criminal case no. 45031. They inquired if the case, which had been suspended in March 2002, had been reopened after the discovery of Shamil Akhmadov ’ s body. They also requested that the second applicant and the person who discovered the body be questioned, that a forensic expertise be ordered and the clothes in which the body was found be collected for examination from the second applicant. They further inquired if any documents had been obtained relating to the operation in Argun on 11-14 March 2001, if the commanding officers and the servicemen who had conducted the passport checks were identified and questioned, if the officers responsible for supervision of the detainees were questioned and if other detainees were interviewed. Finally, they inquired what investigative measures were carried out at the spot where the body of Shamil Akhmadov had been found.

On 14 June 2003 the Argun Town Prosecutor ’ s Office replied that following the discovery of the four bodies on 13 March 2001 near the military base in Khankala and opening of an investigation by the military prosecutor of military unit no. 20102, the criminal case no. 45031 had been transferred to the military prosecutor, since the cases were interrelated. Their request was forwarded to the military prosecutor of military unit no. 20102, which should reply on the substance of the case.

On 25 July 2003 the military prosecutor of military unit no. 20102 replied to the SRJI that they were investigating the kidnapping of Akhmadov . However, on an unspecified date the investigation had been suspended due to failure to identify the culprits. The letter stated that “the servicemen of the Federal Security Service and of the Ministry of the Interior of Chechnya continued investigative measures aimed at finding and taking into detention of persons responsible for the said crime, for their further prosecution by the military prosecutor ’ s office”.

The Government in their observations do not dispute the information concerning the investigation into the abduction and then killing of Shamil Akhmadov . They refer to a number of other procedural steps taken by the investigation which are not mentioned by the applicants. Despite the Court ’ s specific requests, reiterated on two occasions, the Government did not submit a copy of a single procedural document to which they refer and did not specify the dates when most of the investigative actions had taken place. Relying on the information obtained from the General Prosecutor ’ s Office, the Government state that the investigation is pending and the documents within have not yet been evaluated. Their disclosure would be in violation of Article 161 of the Code of Criminal Procedure.

The Government state that criminal case no. 45031 opened by the Argun District Prosecutor ’ s Office was sent to the military prosecutor of military unit no. 20102, where at some point it was joined with the criminal case no. 14/33/0132-01. Again at some point later the case was transferred to the military prosecutor of the United Group Alliance and the case file was assigned no. 34/00/0010-04. The Government assert that both applicants, Shamil Akhmadov ’ s grandmother and two local residents were questioned about the cir cumstan ces of the case, and the first applicant was granted victim status in the proceedings. The Government state further:

“Taking into account the circumstances of Akhmadov ’ s disappearance and the finding of the remains of an unknown man on the outskirts of Argun , the investigation correctly concluded that these events are not linked to the events subject of investigation in the criminal case file no. 34/00/0010-04, and that conducting of a separate investigation in respect of unidentified persons would not affect the effective ness and thoroughness of the investigation.

Because of this on 10 May 2004 a new criminal investigation file no. 34/00/016-04 was opened against unknown persons who had kidnapped Sh . Akhmadov , which was separated from the investigation file no. no. 34/00/0010-04 . The new investigation is carried out under Article 126 of the Criminal Code (kidnapping).”

The Government submit that the investigation continues to verify the second applicant ’ s statements concerning injuries noted by her on the body which she had identified as Shamil Akhmadov ’ s . However, in view of the absence of a forensic report and the relatives ’ refusal to exhume the body, the authorities are unable to conclude with certainty whether Shamil Akhmadov had indeed died and of what causes.

4. Hara ssment of the applicants

The applicants submit that after the detention of Shamil Akhmadov they were subjected to a constant pressure and harassment by the military. The military regularly arrived with APCs , surrounded the household and entered the house. According to the applicants, 10-12 servicemen dressed in camouflage, armed with automatic weapons and guns, sometimes wearing balaclava masks and bullet-proof vests would enter the house. During these raids they broke or took away the applicants ’ property, burned the furniture, searched the house and the garden apparently because they were looking for weapons. They also threatened the applicants and their children, said that Shamil Akhmadov was probably “fighting in the mountains”, and at some point in March 2002 took away the file with documents and the diary with the list of letters to various authorities in relation to the disappearance kept by the first applicant.

The applicants also submit that they were subjected to physical assaults. At some point in summer 2001 soldiers dropped the applicant ’ s youngest son, Fattakh , on the floor and he broke his tooth. On the same day the soldiers pushed her daughter Layusa off the stairs and she broke her wrist.

They submit that in December 2002 the second applicant was beaten so badly by the soldiers she had to apply to a hospital and have six stitches to her head.

At some point the applicants moved to Ingushetia, to an IDP camp in Nazran . In late August 2003 the second applicant travelled to Argun to visit her relatives. She first visited her husband ’ s paternal grandfather, and then her husband ’ s maternal grandmother where she spent the night. Upon return next day to her husband ’ s paternal grandmother, she saw that the windows and doors of the house were broken. The grandmother told her that dozens of servicemen broke into the house the night before, looking for her and asking: “Where is Larisa ? Why are you writing these letters? What are you looking for?” The applicants understand that these were the letters written on their behalf by the SRJI to the prosecutors, asking for information about the investigation.

The second applicant again travelled to Argun around 20 October 2003 . After Argun she went to another village to attend the burial of a relative and then returned to Argun a few days later. On her way back she was told by neighbours that the house of her husband ’ s paternal grandmother had again been stormed by soldiers who were looking specifically for her.

The applicants submit that they now fear return to Argun even for a short time.

The Government submit that following the communication of the complaint a verification of this information has been carried out by a prosecutor. On 2 April 2004 the second applicant was questioned about the circumstances of the attacks and confirmed her allegations. However they were not supported by any other evidence. The local hospital does not have records of the second applicant ’ s visits in December 2002, her neighbours and Shamil Akhmadov ’ s grandmother did not confirm the information about ill-treatment of the applicant or her children and destruction of their property. The Government did not submit copies of any documents to which they refer. It is unclear whether the verification resulted in any procedural decision.

B. Relevant domestic law

Until 1 July 2002 criminal-law matters were governed by t he 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic . From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 125 of the new CCP provides for a j udicial procedure for consideration of complaints . O rders of the investigator or the prosecutor about the refusal to institute criminal proceedings, about termination of a case as well as their other orders and actions (omissions) which may infringe upon constitutional rights a n d freedoms of the participants of the criminal proceedings or impede the access to justice for the citizens may be appealed to a local district court. The court can check the lawfulness and grounds of the appealed decisions.

COMPLAINT S

1. The applicants submit that Article 2 was violated in respect of Shamil Akhmadov . They submit that the circumstances of his detention and the discovery of his body indicate that he was killed by the federal forces. They further submit that there was a violation of the procedural aspect of Article 2 since no effective investigation has been carried out into the circumstances of his detention and death.

2. The applicants submit that as a result of the anguish and emotional distress they have suffered in connection with the detention and death of their son and husband they were subjected to ill-treatment falling within the scope of Article 3 of the Convention.

3. The applicants complain that the provisions of Article 5 of the Convention as a whole, relating to the lawfulness of detention and guarantees against arbitrary detention, were violated in respect of Shamil Akhmadov .

4. The applicants submit that they are deprived of access to a court, contrary to the provisions of Article 6 of the Convention, because their civil claim for damages depends entirely on the outcome of the criminal investigation into the disappearance and murder of Shamil Akhmadov . In the absence of any findings, they cannot effectively apply to a court.

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

THE LAW

The applicants complain about the disappearance and killing of Shamil Akhmadov and about the absence of an effective investigation, in violation of Article 2 of the Convention. They submit that their own suffering in the circumstances has reached the threshold of Article 3. They complain that Shamil Akhmadov ’ s detention was in violation of Article 5. Under Article 6 the applicants complain that they had no access to a court. They also submit that they have no effective remedies in respect of the above violations, contrary to Article 13 .

1. Exhaustion of domestic remedies

a. The Government

The Government request the Court to declare the case inadmissible as the applicants have failed to exhaust the domestic remedies. Referring to Article 125 of the CCP, the Government submit that the applicants failed to appeal the decisions of the investigation which they considered to be in violation of their rights. The investigation into the circumstances of Shamil Akhmadov ’ s detention is continuing and the review of the complaint by the European Court would be premature. The Government also refer to the Constitution and other legal acts which permit to appeal to the courts the actions of the administrative bodies which infringe upon the citizens ’ rights.

b. The applicants

The applicants disagree with the Government ’ s objection.

First, they rely on the Court ’ s judgment in the case of Akdivar and others v. Turkey and argue that the Russian Federation has failed to satisfy the requirement that the remedy was “an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaint and offered reasonable prospects of success” (see the Akdivar and Others v. Turkey judgment of 30 August 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 68). They state that t here is no suggestion that any remedy is available to them which could lead to the identification and punishment of those responsible .

Second, they argue that the potentially effective domestic remedies in their case were inadequate, ineffective and illusory in practice. They allege that there is an administrative practice of non-compliance with the requirement to investigate effectively abuses committed by Russian servicemen and members of the police in Chechnya . They refer to complaints submitted to the Court by other persons claiming to be victims of such abuses, documents of the Council of Europe, NGO and media reports.

Further, they argue that the appeal to a prosecutor ’ s office would be ineffective in their case, because the investigation did not progress significantly with the passage of time and the known investigative steps were inadequate.

In addition, they invoke the existence of special circumstances after August 2003, as a result of the harassment to which they were subjected in response to their continuous complaints. After the incidents of August and October 2003 when the military servicemen specifically looked for the second applicant, they felt scared and lost faith in the effectiveness of the internal remedies.

They maintain that in any event they applied to the prosecutor with a request to conduct an investigation into the disappearance and then death of Shamil Akhmadov . Criminal investigation should, in their opinion, be regarded as a proper remedy in view of the nature of their complaints and the relevant practice of the Court. Despite their efforts, no proper investigation took place. They were not informed of the progress of the investigation, about the decisions to transfer the investigation file from one authority to another, to suspend the investigation, were unable to familiarise themselves with the documents in the file. They were thus deprived of any meaningful possibility to appeal.

c. The Court ’ s assessment

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

The Court therefore decides to join this objection to the merits.

2. As to the merits of the applicants ’ complaints

a. The Government

The Government submit that there is no conclusive evidence to support the applicants ’ allegations that the authorities are responsible for the detention of Shamil Akhmadov or that he is dead. They refer to the absence of a forensic report and the relatives ’ refusal to carry out an exhumation of the body buried on 1 May 2002 , as well to the difficult situation in Chechnya in general and the fact that the witnesses had left Chechnya. The Government stress that in March 2001 the authorities had legal grounds to detain Shamil Akhmadov , in view of the arrest warrant issued by the district court in Krasnodar on 13 February 2001, but the investigation failed to establish that he had indeed been detained by the law-enforcement bodies. The identity of the persons who had detained him remains unknown. The investigation is being carried out in accordance with the domestic legislation, the first applicant has been granted victim status and has every possibility to participate effectively in the proceedings.

As to the applicants ’ allegations about harassment, the Government submit that they are unsubstantiated and not supported by anything other than the first applicant ’ s statements. The investigation of her complaint would continue.

b. The applicants

The applicants maintain their complaints. Under Article 2 they argue that there can be no reasonable doubt that the Russian servicemen detained Shamil Akhmadov on 12 March 2001 and then deprived him of his life. In support of their complaint they refer to the following evidence that was not challenged by the Government: the second applicant ’ s eye-witness statement about her husband ’ s detention by uniformed servicemen who placed him into an APC, the fact that a large scale “sweeping” operation took place in Argun on 11-14 March 2001, as a result of which more than a hundred persons were detained and 11 “disappeared”, letter of the Argun Town Prosecutor ’ s Office of 28 May 2001 which stated that the military servicemen had been involved in the abduction of Shamil Akhmadov and, ultimately, the continuing responsibility of the military prosecutor for the investigation. They also refer to the letter from the Argun Prosecutor ’ s Office of 8 June 2002 which spoke of Shamil Akhmadov ’ s violent death of gunshot wounds and the death certificate issued on 21 August 2002 . They argue that the State failed to explain how Shamil Akhmadov died while in custody.

The applicants allege that the authorities failed to conduct an effective investigation into the circumstances of Shamil Akhmadov ’ s detention and death, in violation of the procedural obligations under Article 2. They argue that the investigation fell short of the standards of the European Convention and of the national legislation. They point out at the passage of considerable time – more than three years – without the investigation producing any known results. Relying on the Government ’ s submissions they argue that the investigation has failed to take to take the necessary steps immediately after the detention occurred, and then again after the discovery of the body. A number of investigative actions occurred only after the communication of the complaint to the Russian Government, and other important steps were never taken, such as questioning of other witnesses of detention, identification and questioning of the responsible for the military operation, ordering a forensic examination etc. The authorities systematically failed to inform the applicants of the proceedings and the applicants have had no information about important procedural steps. Their own attempts to intensify the investigation resulted in them being subjected to intimidation and violence.

Referring to the established Court ’ s practice, the applicants claim that they are victims of treatment falling within the scope of Article 3 of the Convention as a result of anguish and emotional distress they have suffered in connection with the disappearance of their son and husband.

Under Article 5 the applicants submit that Shamil Akhmadov has been subjected to unacknowledged detention, in violation of the principles defined by Article 5.

Under Article 6 the applicants complain that they have no access to civil proceedings in the absence of any meaningful conclusions from the criminal investigation.

They also submit that they had no recourse to effective remedies against the said violations, contrary to Article 13.

c. The Court ’ s assessment

The Court considers, in the light of the parties ’ submissions, that the complaints under Articles 2, 3, 5, 6 and 13 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that these complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

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

Declares the application admissible, without prejudicing the merits of the case.

Søren Nielsen Christos R ozakis Registrar President