KAPLANOVA proti Rusku

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7653/02
by Khadizhat Daudovna KAPLANOVA
against Russia

The European Court of Human Rights (First Section), sitting on 24 October 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Quesdada, Deputy Section Registrar,

Having regard to the above application lodged on 22 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 applicant, Ms Khadizhat Daudovna Kaplanova, is a Russian national who was born in 1930 and lives in the city of Grozny, the Chechen Republic. She is represented before the Court by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government (“the Government”) are 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.

1. Detention of the applicant’s relatives

(a) The applicant’s version

At the material time the applicant and her family lived in Grozny in a private household comprising two houses at 76 Voronezhskaya Street.

On 12 May 2001 the applicant’s son Isa Kaplanov, born in 1965, his wife, Melina Mezhidova, the applicant’s son-in-law, Ruslan Sadulayev, born in 1962, her daughter Lidia Kaplanova and their neighbour Movsar Musitov (also spelled Musaitov), who had had come to visit them, were at home. The applicant was away and therefore her account of the events of that date was based on eye-witness statements of her family members.

At about 10.00 a.m. a group of approximately 20 federal servicemen arrived at the applicant’s household in six armoured personnel carriers (APC’s). The hull number of one of the vehicles was 40-42, whilst the other carriers had no identification numbers on them. The servicemen in camouflage uniforms were armed with machine guns AK-47, carabines SVD and pistols. They had masks on, except for two officers in command. Those two officers had portable radio transmitters. All the servicemen spoke Russian without any accent. Ten of them entered the courtyard of the applicant’s household whilst ten others stayed near the APCs.

The servicemen broke the door of one of the houses, in which there were the applicant’s son, her son-in-law and Movsar Musitov, and searched the house, without presenting any documents to authorise their actions. According to the applicant, during the search the soldiers asked if the three men had drugs, arms or US dollars. They also allegedly claimed gold and money.

The applicant’s daughter and Isa Kaplanov’s wife, who were in the other house at that moment, heard the noise, ran out to the courtyard and saw five or six servicemen there and several other soldiers inside the house in which their relatives were. The servicemen prevented the women from entering that house. They were hostile and aggressive. Some time later the servicemen left the house and forced Isa Kaplanov, Ruslan Sadulayev and Movsar Musitov outside. They ordered the three men to stand against the wall and checked their passports.

According to the applicant, the servicemen spent in her courtyard about 30 minutes and then left, having taken her son, her son-in-law and Movsar Musitov away. They said to the applicant’s daughter that they would check the three men’s identities and release them. The servicemen then put the applicant’s relatives and Movsar Musitov in the APCs and drove off in the direction of the centre of Grozny. The applicant submitted that the only road to the centre of Grozny had been blocked by a federal military check-point, but the APCs openly passed through it.

The applicant further relied on Movsar Musitov’s statements to the effect that the three men had been brought to the Staropromyslovskiy District Temporary Department of the Interior of Grozny (Старопромысловский временный отдел внутренних дел г. Грозного – “the Staropromyslovskiy VOVD”) and interrogated. The interrogators did not introduce themselves or disclose what public bodies they represented. The three men were allegedly told that there was a report stating that they had been detained at the Staropromyslovskiy military check-point for insulting federal servicemen.

The applicant’s two relatives and Movsar Musitov spent a night in a cell, along with another person. On 13 May 2001 at about 11.30 a.m. Isa Kaplanov and Ruslan Sadulayev were taken away from the Staropromyslovskiy VOVD in an UAZ all-terrain vehicle. Movsar Musitov was released two hours later and returned home. Isa Kaplanov and Ruslan Sadulayev remain missing up to date.

(b) The Government’s version

According to the Government, on 12 May 2001 “unidentified persons armed with firearms apprehended Isa Kaplanov, Ruslan Sadulayev and Movsar Musitov in a private household and delivered them to the Staropromyslovskiy District Temporary Department of the Interior of Grozny. The next day Movsar Musitov was released, whilst Isa Kaplanov and Ruslan Sadulayev were taken away by unidentified persons in an unknown direction”.

2. The applicant’s search for her relatives

On 12 May 2001, immediately after the detention of Isa Kaplanov and Ruslan Saydulayev, the applicant’s daughter-in-law informed the applicant of the incident. Thereafter the applicant’s daughter-in-law went to her brother-in-law, Musa Rozayev, who was an officer of the Chechen Department of the Federal Security Service (Управление Федеральной Службы Безопасности по Чеченской Республике – “the Chechen Department of the FSB”). The latter attempted to pursue the APCs in his personal car, but did not find them. He learnt from servicemen at the check-point near the applicant’s house that the APCs had passed there at about 11 a.m. that day.

On 13 May 2001 the applicant went to the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor’s office”) and informed them about the detention of her relatives.

Thereafter she visited the Staropromyslovskiy VOVD. An officer whose name was Magomed Batayev told her that her two relatives had been taken away in an UAZ all-terrain vehicle by two military officers of the Staropromyslovskiy VOVD, Dmitriy Tikhonov and Sergey Morozov. Magomed Batayev also allegedly told the applicant that the said two officers must have delivered her son and son-in-law either to the main federal military base at Khankala or in the town of Gudermes and promised her to find out about their whereabouts.

On 14 May 2001 the applicant and other members of her family went to the Staropromyslovskiy VOVD, where they were told by a serviceman named Ilyas that the two men had been released.

Since 12 May 2001 the applicant and other members of her family have been searching for Isa Kaplanov and Ruslan Sadulayev. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the administrative authorities in Chechnya. In letters addressed to the authorities the applicant stated the facts of her relatives’ detention and asked for assistance and details on the investigation. The applicant received hardly any substantive information from official bodies about the investigation into the disappearance of her son and son-in-law. On several occasions she received copies of letters by which her requests had been forwarded to various prosecutors.

The applicant also visited the federal military base at Khankala and saw a register of persons detained there. She claimed that the names of her son and son-in-law were not on that list.

On 3 July 2001 the Muzhichi village administration in Ingushetia issued a certificate to confirm that Isa Kaplanov had stayed there in October 1999 – April 2000.

3. Official investigation

According to the Government, on 12 June 2001 the Grozny prosecutor’s office (прокуратура г. Грозного) instituted criminal proceedings in connection with the disappearance of Isa Kaplanov and Ruslan Sadulayev under Article 126 § 2 of the Russian Criminal Code (kidnapping of two or more persons by a group using firearms). The applicant insisted that the criminal proceedings had been instituted on 27 June 2001, as indicated in the decision of and investigator of the prosecutor’s office of the Zavodskoy District of Grozny dated 15 July 2004. The case file was given the number 13093.

During the investigation the authorities identified two military servicemen who had taken part in apprehension of the applicant’s relatives. They were Dmitriy Tikhonov and Sergey Morozov, both from Yekaterinburg on mission in Chechnya. Those two servicemen were called for questioning to the Grozny prosecutor’s office on 31 June 2001. The applicant submitted copies of summonses. She alleged that in the case file she had seen a transcript of interrogation of Tikhonov and Morozov in which they had admitted that they had illegally arrested Isa Kaplanov, Ruslan Sadulayev and Movsar Musaitov, but the investigator in charge had not allowed her to study that document or to make a copy of it.

At some point in July 2001 the case file was transferred to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) located in Khankala.

On 4 August 2001 the latter replied to the applicant’s husband and to the Grozny prosecutor’s office that they had no criminal case file concerning the abduction of his son and son-in-law.

In a letter of 12 August 2001 the Chechen Department of the FSB informed the Grozny prosecutor’s office that on 12 May 2001 their two officers, Tikhonov and Morozov, had detained Isa Kaplanov, Ruslan Sadulayev and Movsar Musitov for a breach of public order in the vicinity of the market “Neftyanik” in Grozny and brought those three persons to the Staropromyslovskiy VOVD, having reported about the detention in writing to the head of the said VOVD. The letter also stated that the aforementioned officers had no information as to the further fate of the detainees.

On 14 August 2001 the applicant’s husband wrote to the republican prosecutor’s office and enquired about his relatives’ whereabouts and details of the investigation. He also asked whether they had ever been charged with any crime.

On 15 August 2001 the applicant’s daughter wrote to the Prosecutor General seeking assistance in ensuring that an effective investigation be carried out by local prosecutors.

On 20 August 2001 the applicant’s husband applied to the military prosecutor of the Chechen Republic with a request to inform him about the progress in the investigation. He re-stated the circumstances of the detention of Isa Kaplanov and Ruslan Sadulayev and referred to the information about the two servicemen, Tikhonov and Morozov, insisting that they should be questioned in connection with the disappearance of his relatives.

On 25 August 2001 the Memorial Human Rights Centre, on behalf of the applicant, requested the Prosecutor General to provide information of the investigation in the criminal case opened in connection with abduction of Isa Kaplanov and Ruslan Sadulayev.

In a letter of 27 August 2001 the military prosecutor’s office of military unit no. 20102 replied that they did not have a file of criminal case no. 13093 or any information about the detained men or servicemen Tikhonov and Morozov.

On 28 August 2001 the applicant’s husband submitted an application to a department of the Chechen Ministry of the Interior responsible for searching for missing persons. He stated the details of the detention of Isa Kaplanov and Ruslan Sadulayev, as well as their personal details, a description of the clothes they had been wearing on the day of detention and the known steps of the investigation.

On 28 August 2001 the applicant’s daughter applied to the head of the Administration of Chechnya asking for help to find her relatives.

On 6 September 2001 the republican prosecutor’s office informed the applicant that they had studied the file of criminal case opened in connection with her two relatives’ abduction and then forwarded it to the Grozny prosecutor’s office for further investigation, instructing them to take “more active steps” to locate the missing men. The letter contained no further information.

On 5 October 2001 the Office of the Chechen Government replied to the applicant that following her complaint the Chechen Ministry of the Interior had been instructed to take all possible measures to establish the whereabouts of Isa Kaplanov and Ruslan Sadulayev.

On 15 October and 19 December 2001 the applicant’s husband submitted complaints to the republican prosecutor’s office. On the last date he also submitted a similar complaint to the military prosecutor’s office of military unit no. 20102.

On 30 November 2001 the republican prosecutor’s office informed the applicant’s husband that they had studied the file of the investigation into the abduction of his relatives, and ordered the investigators in charge to take steps to establish the whereabouts of the victims and of the culprits. The letter assured that the investigation of the crime was supervised by the republican prosecutor’s office.

By letter of 4 July 2002 the republican prosecutor’s office informed the applicant that they had studied the file of the criminal case opened in connection with the abduction of her relatives and then forwarded it to the Grozny prosecutor’s office for an additional investigation. The letter assured the applicant that the Grozny prosecutor’s office had been instructed to carry out a number of investigative measures and that she would be notified of the results of the investigation.

On 9 August 2002 the republican prosecutor’s office forwarded the applicant’s query regarding the investigation to the Grozny prosecutor’s office and invited them to determine a question of responsibility of servicemen Tikhonov and Morozov who had participated in the detention of the applicant’s two relatives.

On 25 September 2002 the republican prosecutor’s office again transferred the file of case no. 13093, which they had studied following the applicant’s request, to the Grozny prosecutor’s office. The republican prosecutor’s office stated that their earlier instruction had not been complied with and invited the Grozny prosecutor’s office to extend the time-limit for a preliminary investigation, to carry out a thorough investigation as well as to conduct an internal enquiry in connection with the investigators’ failure to comply with the instructions of the superior prosecutor’s office.

According to the applicant, at some point she had found out that in 2003 the investigator in charge had gone to Yekaterinburg and interrogated Tikhonov and Morozov, who had allegedly confirmed that they had arrested Isa Kaplanov and Ruslan Sadulayev.

At some point in 2003 criminal case no. 13093 had been transferred to the prosecutor’s office of the Zavodskoy District of Grozny (прокуратура Заводского района г. Грозного – “the district prosecutor’s office”).

By decision of 15 July 2004 an investigator of the district prosecutor’s office ordered that the criminal proceedings in case no. 13093 instituted on 27 June 2001 in connection with the abduction of Isa Kaplanov and Ruslan Sadulayev be discontinued. The decision stated in particular:

“The preliminary investigation has established that on 12 May 2001 at 10.30 a.m. officers of the FSB in camouflage uniforms armed with firearms entered unlawfully and without authorisation a household at 76 Voronezhskaya Street ... of Grozny belonging to the Kaplanovs and after a search had delivered Kaplanov I.G., Sadulayev R.A. and Musitov M.S. to the Staropromyslovskiy VOVD of Grozny. Thereafter [the officers] left without drawing up reports on the detention of the aforementioned persons. The next day Musitov M.S. was released whilst Kaplanov I.G. and Sadulayev R.A., whose whereabouts has not been established until present, had been taken away from the territory of the Staropromyslovskiy VOVD of Grozny by FSB officers Tikhonov D.V. and Morozov S.B. in an unknown direction.”

The decision further referred to statements of a number of witnesses, including the applicant’s daughter and daughter-in-law, the applicant’s two neighbours and Movsar Musitov, all of whom had given similar description of the events of 12 May 2001. The decision also stated that FSB officer Tikhonov had been interrogated on 10 July and 22 October 2001 and FBS officer Morozov had been questioned on 16 July 2001 and 23 October 2002. They both testified that on 12 May 2001 in the vicinity of the market “Neftyanik” in Grozny they had apprehended three men, including Isa Kaplanov and Ruslan Sadulayev, for insulting local residents with swearwords, brought them to the Staropromyslovskiy VOVD and left the detainees there. The next day they had found out that the detainees had been released. Officer Tikhonov stated that he had drawn up a report on the detention of the three men, whilst officer Morozov submitted that he did not remember whether he had drawn up any reports. The decision further stated that the fact of the apprehension on 12 May 2001 the applicant’s relatives and Movsar Musitov had been confirmed by the head of the Staropromyslovskiy VOVD in a letter of 8 June 2001 and by the acting head of the Chechen Department of the FSB in a letter of 12 August 2001. The decision continued that on 14 May 2001 an investigator of the Grozny prosecutor’s office had examined the register of the persons kept in the Staropromyslovskiy VOVD and had found out that the names of the applicant’s son, son-in-law and Movsar Musitov had not been listed among those detained in the said VOVD. The decision also referred to testimony of M. Batayev, who between 12 April and 23 July 2001 had been seconded to Chechnya as the head of the police of the Staropromyslovskiy VOVD. Mr Batayev had stated that on a date which he had not remembered FSB officers delivered four or five persons, who, as claimed by those officers, had been detained during a “sweeping-up” operation in the Oktyabrskiy District of Grozny on suspicion of their involvement in illegal military activity. Officers Tikhonov and Morozov had asked Mr Batayev to keep the detainees until the next morning and then release them except for Isa Kaplanov and Ruslan Sadulayev, as those two would be taken by FSB personnel. According to Mr Batayev, on 13 May 2001 he had released the detainees, whilst Kaplanov and Sadulayev had been taken by Tikhonov and Morozov. The decision further relied on a letter of 23 May 2003 from the head of the Sverdlovskiy Regional Department of the FSB, the permanent place of service of officers Tikhonov and Morozov, who had confirmed that on 12 May 2001 the said two officers had, indeed, delivered the applicant’s relatives to the Staropromyslovskiy VOVD, but had no information as to the further fate of Isa Kaplanov and Ruslan Sadulayev, as on the morning of 13 May 2001 the latter two had been taken away by personnel of another division of the Chechen Department of the FSB. The decision continued, as follows:

“During the preliminary investigation only a fact of the breach by the head of the Staropromyslovskiy VOVD of the procedural requirements relating to placement in detention and transfer of detainees was reliably established, however, the said actions did not constitute a criminal offence under Article 126 of the Russian Criminal Code and were punishable in disciplinary proceedings. The fact of the abduction of Kaplanov I.G. and Sadulayev R.A. by officials of the Staropromyslovskiy VOVD was not confirmed during the preliminary investigation.”

The decision thus concluded that there was no evidence of a criminal offense under Article 126 of the Russian Criminal Code in the actions of officials of the Staropromyslovskiy VOVD of Grozny.

On 23 December 2004 the criminal proceedings in case no. 13093 were resumed and, in the Government’s submissions, on 28 December 2004 the case file was forwarded to the military prosecutor’s office of the United Group Alignment (военная прокуратура Объединенной группировки войск) for a further investigation so as to check the possible involvement of the military personnel in the imputed offence.

On 20 January 2005 investigation was suspended for failure to identify those responsible and then resumed on 5 April 2005.

Referring to the information provided by the Prosecutor General’s Office, the Government submitted in their memoranda dated 18 March and 20 April 2005 that, on 12 June 2001, the authorities had commenced an investigation into the abduction of the applicant’s son and son-in-law. That investigation had been suspended and resumed on several occasion, but had failed to identify those responsible. It was being supervised by the Prosecutor General’s Office.

The Government further submitted that the applicant had been interrogated by the investigators on 27 July and 30 October 2002, 30 May 2003 and 6 April 2005 respectively and granted the status of victim on 30 October 2002. The applicant’s husband had been questioned and declared a victim on 30 May 2003. The applicant’s daughter and daughter-in-law had been interrogated on 28 June and 5 July 2001 respectively and granted the status of victim on 21 July 2001. The investigating authorities had also questioned Mr Musitov, three neighbours of the applicant and more than 20 officials of the FSB and the Ministry of the Interior who at the material time had been working in Grozny. The Government did not specify on what date witness statements had been obtained and submitted that the witnesses concerned had testified that they had no information regarding the perpetrators of the offence in question. According to the Government, it was impossible to establish other witnesses in the case but the search for them was currently underway. Finally, the Government stated that the investigating authorities had sent a number of queries to various State bodies on 14 and 28 June 2001, 2, 5 and 24 July 2001, 2, 6, 13 and 16 August 2001, 3 May and 29 October 2002, 22 May and 10 June 2003 and undertaken other investigative measures, but did not specify what those measures had been.

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”.

4. Court proceedings against the investigating authorities

On 21 May 2004 the applicant lodged a complaint against the investigators with the Zavodskoy District Court of Grozny (“the district court”). She claimed that the investigating authorities had not taken all possible and necessary measures and thus failed to carry out an effective investigation into the disappearance of her son and son-in-law. She also complained that the question of the responsibility of servicemen Tikhonov and Morozov had not been investigated and that all her requests regarding the results of the investigation had remained unanswered or only produced standard replies. In her court complaint the applicant referred to the Russian Constitution and Article 13 of the European Convention on Human Rights. She requested that the court find unlawful the inactivity of the investigating authorities and order the Grozny prosecutor’s office to carry out an effective investigation.

By decision of 11 July 2004 the district court disallowed the applicant’s complaint, having stated that “the investigating authorities had undertaken all necessary measures” and that the applicant “had not pointed out what particular measures could else be taken”.

On 8 September 2004 the Supreme Court of the Chechen Republic dismissed the applicant’s appeal and upheld the first instance decision on appeal. It noted in particular that the involvement of federal servicemen in the detention and subsequent disappearance of Isa Kaplanov and Ruslan Sadulayev had been established and therefore the investigation of the case fell within the competence of military prosecutors. In this connection, on 24 August 2004 the district prosecutor’s office had transmitted the case file to the republican prosecutor’s office for its further transfer to the military prosecutor’s office of military unit no. 20102.

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 establishes 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 the violation of the right to life of her son, Isa Kaplanov, and her son-in-law, Ruslan Sadulayev.

2. The applicant claimed 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 Isa Kaplanov and Ruslan Sadulayev.

3. The applicant alleged that there were no effective remedies in respect of the above violations of her rights, contrary to Article 13 of the Convention.

4. In a letter of 31 May 2005 the applicant also complained that the Government’s refusal to submit a file in criminal case no. 13093 was in breach of the State’s obligations under Article 34 and Article 38 § 1 of the Convention.

THE LAW

The applicant complained under Article 2 of the Convention that her two close relatives had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation into the matter. She further stated that Isa Kaplanov and Ruslan Sadulayev had been detained in violation of the guarantees of Article 5 of the Convention. Lastly, the applicant complained that she had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention. The respective Articles, 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.”

A. Exhaustion of domestic remedies

1. Submissions by the parties

The Government contended that the present application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the applicant could have brought civil proceedings for compensation of non-pecuniary damage in connection with the abduction of her relatives but never availed herself of that remedy.

The applicant argued that the remedy invoked by the Government would have been ineffective in her case, as it was incapable of leading to the identification and punishment of those responsible, as required by the Court’s settled case-law in relation to complaints under Articles 2 and 5 of the Convention. She also pointed out that under national law she could only make use of this remedy after those responsible for the crime had been identified in course of criminal proceedings. The applicant also referred to the Court’s case-law stating that the State’s obligation under Articles 2 and 13 of the Convention to seek those guilty of fatal assault might disappear if, in respect of complaints under those Articles, an applicant was required o exhaust a remedy leading only to an award of damages (see Yaşa v. Turkey, judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, § 74). The applicant also stated that 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 been pending for several years but had failed to identify those responsible for the illegal detention and disappearance of Isa Kaplan and Ruslan Sadulayev despite compelling evidence confirming the involvement of federal servicemen.

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

According to the Government, Isa Kaplanov and Ruslan Sadulayev had been detained by unidentified armed men who had brought them to the Staropromyslovskiy VOVD from which the applicant’s two relatives had then been taken away by unidentified persons. They argued, with reference to a reply from the Prosecutor General’s Office, that the investigation had obtained no evidence to the effect that Isa Kaplanov and Ruslan Sadulayev were dead, and therefore there were no grounds to claim hat the State had breached their right to life secure by Article 2 of the Convention. The Government further claimed that the investigation into the disappearance of the applicant’s son and son-in-law met the Convention requirement of effectiveness, as all measures envisaged in national law were being taken to identify the perpetrators.

In the Government’s submission, no evidence had been obtained by the investigators to confirm that the applicant’s family members had been detained in breach of the guarantees set out in Article 5 of the Convention. Isa Kaplanov and Ruslan Sadulayev were not listed among the persons kept in detention centres.

The Government also argued that the applicant had had effective remedies at her disposal as required by Article 13 of the Convention and that the authorities had not prevented her from using them. In particular, the applicant had received reasoned replies to all her complaints lodged in the context of criminal proceedings. Besides, it was open to the applicant to file a claim for compensation in civil proceedings. In this latter respect the Government relied on the case of Khashiyev v. Russia in which the applicant had sought and obtained compensation for the death of his relatives (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2002).

2. The applicant

The applicant disagreed with the Government and maintained her complaints. In her opinion, it was beyond reasonable doubt that Isa Kaplanov and Ruslan Sadulayev had been detained by representatives of the federal forces, this fact having been confirmed by eyewitness statements and the findings of the domestic investigating authorities. The applicant stressed that her relatives had been apprehended in life-endangering circumstances, given that their arrest had been effected by a group of about 20 armed men who had arrived in six APCs and had not produced any documents to authorise the arrest. In this respect she referred to documents of the Council of Europe and those of various human rights NGOs reporting on a widespread practice of forced disappearances, extrajudicial executions, tortures and ill-treatment of detainees in Chechnya by representatives of the federal forces. She thus argued, relying on Article 2 of the Convention, that the fact that her relatives had remained missing since 12 May 2001 proved that they had been killed.

The applicant 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 even though she had immediately notified the authorities about the detention of her relatives, no measures to establish their whereabouts had followed and the investigation had not been commenced before 27 June 2001, i.e. more than a month after her relatives’ detention and disappearance. In this respect she also referred to a discrepancy between the Government’s statement to the effect that the investigation had been commenced on 12 June 2001, and the fact that the decision of the district prosecutor’s office dated 15 July 2004 to discontinue the criminal proceedings in case no. 13093 had mentioned 27 June 2001 as the date on which the investigation had been initiated. In the applicant’s view, this fact clearly demonstrated the Russian authorities’ indifference towards the disappearance of her relatives as well as to the investigation into these events. The applicant further contended that the investigation had been pending since June 2001 but had not brought any tangible results so far, having been repeatedly suspended and reopened. Moreover, the investigating authorities had failed to inform her about its progress or of the investigative measures that had been taken. The applicant also claimed that even though she had been declared a victim in case no. 13093, she had not been allowed to have access to the case file, let alone to study it or make copies of any documents from the file.

The applicant claimed that her relatives’ 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.

Lastly, 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 allowed to have access to the case file and that all her applications to public bodies had remained unanswered or had only produced standard replies.

3. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. Consequently, it 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

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

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

Santiago Quesada Christos Rozakis
Deputy Registrar President