The ECHR case of Vagapova and Zubirayev v. Russia (application no. 21080\/05).<\/p>\n
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..<\/span><\/p>\n \n \u2026<\/span><\/p>\n .<\/span><\/p>\n EUROPEAN COURT OF HUMAN RIGHTS<\/span><\/span><\/p>\n CASE OF VAGAPOVA AND ZUBIRAYEV v. RUSSIA<\/span><\/span><\/p>\n (Application no. 21080\/05)<\/span><\/span><\/p>\n <\/a><\/a>This version was rectified on 27 March 2009<\/span><\/p>\n under Rule 81 of the Rules of the Court<\/span><\/p>\n JUDGMENT<\/span><\/p>\n STRASBOURG<\/span><\/p>\n 26 February 2009<\/span><\/p>\n This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/span><\/span><\/p>\n In the case of Vagapova and Zubirayev v. Russia,<\/span><\/p>\n The European Court of Human Rights (First Section), sitting as a Chamber composed of:<\/span><\/p>\n Christos Rozakis, President, George Nicolaou, judges<\/span>, Having deliberated in private on 5 February 2009,<\/span><\/p>\n Delivers the following judgment, which was adopted on that date:<\/span><\/p>\n PROCEDURE<\/span><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 21080\/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by the Russian nationals, Ms Zara Shapavna1<\/sup><\/span><\/a> Vagapova and Mr Adnan Abdulreshidovich Zubirayev, born in 1964 and 1957 respectively (\u201cthe applicants\u201d), on 17 May 2005.<\/span><\/p>\n 2.\u00a0\u00a0The applicants were represented by lawyers of the Stichting Russian Justice Initiative (\u201cSRJI\u201d), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (\u201cthe Government\u201d) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n 3.\u00a0\u00a0On 1 September 2005 the Court decided to give the case priority (Rule\u00a041 of the Rules of Court).<\/span><\/p>\n 4.\u00a0\u00a0On 13 December 2007 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 \u00a7 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.<\/span><\/p>\n 5.\u00a0\u00a0The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 6.\u00a0\u00a0The applicants live in the village of Chechen-Aul, in the Groznenskiy District of the Chechen Republic.<\/span><\/p>\n 7.\u00a0\u00a0The applicants are married. At the material time they lived together with their children at 8 Lenin Street, the village of Chechen-Aul. One of their sons, Mr Alis Adnanovich Zubirayev, was born in 1986.<\/span><\/p>\n A.\u00a0\u00a0Disappearance of Alis Zubirayev<\/span><\/p>\n 1.\u00a0\u00a0The applicants’ account<\/span><\/p>\n 8.\u00a0\u00a0At about 5.15 a.m. on 21 December 2004 someone knocked at the entrance door of the applicants’ house. Alis Zubirayev opened the door. Three armed men wearing military uniforms burst inside and beat Alis Zubirayev with machine-gun butts. The men wore no masks. They did not identify themselves but the first applicant inferred that they belonged to the Russian military. At some point three other servicemen entered the house.<\/span><\/p>\n 9.\u00a0\u00a0The first applicant called her husband; when he entered the room, one of the servicemen ordered him to produce identity papers. When the second applicant did so, he saw a serviceman pointing a machine gun at Alis Zubirayev.<\/span><\/p>\n 10.\u00a0\u00a0The servicemen asked Alis’s family name, examined his identity papers and said that it was \u201chim\u201d. Two of the servicemen twisted the young man’s arms behind his back and dragged him to the entrance door. The applicants asked them where they intended to take their son. The servicemen replied that the applicants had no reasons to worry. One of them told the first applicant to give him Alis’s jacket and shoes but did not allow Alis to dress.<\/span><\/p>\n 11.\u00a0\u00a0The six servicemen left the house and took Alis to the street. The applicants followed them and saw an all-terrain UAZ vehicle without a registration number parked next to their gates. The servicemen put Alis on the floor of that vehicle and then got in it. The UAZ vehicle drove off. The applicants noticed an armoured personnel carrier (\u201cAPC\u201d) parked behind UAZ. The APC’s registration number was illegible.<\/span><\/p>\n 12.\u00a0\u00a0The UAZ and APC drove down Lenin Street and eventually turned to Partizanskaya Street.<\/span><\/p>\n 13.\u00a0\u00a0After a while the applicants heard a noise and realised that an APC was ramming the gates of a neighbouring house. Later the applicants found out that servicemen had taken away their neighbour, Mr A.K.<\/span><\/p>\n 14.\u00a0\u00a0The applicants have had no news of Alis Zubirayev since 21\u00a0December 2004.<\/span><\/p>\n 2.\u00a0\u00a0Information submitted by the Government<\/span><\/p>\n 15.\u00a0\u00a0The Government did not submit their account of the circumstances of Alis Zubirayev’s kidnapping.<\/span><\/p>\n B.\u00a0\u00a0The search for Alis Zubirayev and the investigation<\/span><\/p>\n 1.\u00a0\u00a0The applicants’ account<\/span><\/p>\n 16.\u00a0\u00a0At about 9 a.m. on 21 December 2004 the second applicant and relatives of A.K. came to the Groznenskiy District Department of the Interior (\u201cROVD\u201d). Mr A., the head of the ROVD, told them that four policemen in an all-terrain UAZ vehicle had gone to Chechen-Aul to arrest Aslan Khatatayev and Mr M. and that they had been assisted by Russian military servicemen in APCs. Mr A. further said that the police had had no intention of arresting Alis Zubirayev and that he was unaware of the latter’s whereabouts. He suggested that Russian servicemen could have taken Alis to the village of Starye Atagi and confirmed that A.K. was detained in the ROVD.<\/span><\/p>\n 17.\u00a0\u00a0In the afternoon of 21 December 2004 the applicants learned that some villagers had seen two APCs and an UAZ vehicle driving in the direction of Grozny.<\/span><\/p>\n 18.\u00a0\u00a0Two days later A.K. was released from the ROVD and told the applicants the following. On his apprehension he had been first placed in an APC; at some point the servicemen had put a bag on his head and placed him in the UAZ vehicle. He could not tell whether Alis Zubirayev was in that vehicle. The servicemen had taken him to the ROVD. In the evening of 21\u00a0December 2004 they had taken the bag off his head and questioned him.<\/span><\/p>\n 19.\u00a0\u00a0According to the applicants, a Russian military unit had its headquarters in a mill in the village of Starye Atagi. The applicants visited the head of Starye Atagi’s local administration and asked him to help them to find their son; he went to the mill, met the military servicemen and informed the applicants that Alis had not been kept there.<\/span><\/p>\n 20.\u00a0\u00a0Later Mr A. told the applicants that he had talked to servicemen of the Federal Security Service (\u201cFSB\u201d) in Starye Atagi and that they had assured him that Alis Zubirayev had not been detained at the mill.<\/span><\/p>\n 21.\u00a0\u00a0The applicants and their relatives repeatedly complained about Alis’s disappearance to various State agencies and officials. In particular, they applied to the Russian and Chechen Presidents, the Prosecutor General, the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit, the Russian Ombudsman, the Chechen Ministry of the Interior, the State Council of the Chechen Republic, the Committee for Protection of Constitutional Rights of Citizens of the Chechen Republic and the head of the local administration of the Groznenskiy District. Most of the complaints were forwarded to the prosecutors’ offices’ at different levels.<\/span><\/p>\n 22.\u00a0\u00a0On 28 December 2004 the first applicant requested the prosecutor’s office of the Chechen Republic to help her to find her son. On 30 December 2004 her complaint was forwarded to the prosecutor’s office of the Groznenskiy District (\u201cthe district prosecutor’s office\u201d).<\/span><\/p>\n 23.\u00a0\u00a0On 6 January 2005 the district prosecutor’s office instituted an investigation into Alis Zubirayev’s disappearance under Article 126 \u00a7 2 of the Russian Criminal Code (\u201caggravated kidnapping\u201d) and informed the applicants of the decision. The case file was assigned the number 44004.<\/span><\/p>\n 24.\u00a0\u00a0On 31 January 2004 the district prosecutor’s office granted the second applicant the status of victim of a crime in case no. 44004.<\/span><\/p>\n 25.\u00a0\u00a0On 15 February 2005 the district prosecutor’s office informed the first applicant that investigative measures were being taken to solve her son’s kidnapping.<\/span><\/p>\n 26.\u00a0\u00a0On 21 February 2005 the first applicant requested the district prosecutor’s office to question eyewitnesses to her son’s abduction and Mr\u00a0A.<\/span><\/p>\n 27.\u00a0\u00a0On 6 March 2005 the first applicant requested the prosecutor’s office of the Chechen Republic to search for her son more actively.<\/span><\/p>\n 28.\u00a0\u00a0On 6 April 2005 the district prosecutor’s office informed the first applicant that the term of preliminary investigation in case no. 44004 had been extended to four months.<\/span><\/p>\n 29.\u00a0\u00a0On 11 April 2005 the first applicant requested the military commander of the Chechen Republic to help her to establish her son’s whereabouts.<\/span><\/p>\n 30.\u00a0\u00a0On 19 and 28 April 2005 the military commander of the Chechen Republic ordered the military commander of the Groznenskiy District together with the heads of the ROVD and the FSB department, to carry out an inquiry into the facts complained of by the first applicant.<\/span><\/p>\n 31.\u00a0\u00a0On 27 April 2005 the prosecutor’s office of the Chechen Republic informed the first applicant that the preliminary investigation in case no.\u00a044004 was pending.<\/span><\/p>\n 32.\u00a0\u00a0On 29 April and 15 May 2005 the military commander of the Groznenskiy District informed the military commander of the Chechen Republic that the criminal investigation into Alis Zubirayev’s kidnapping by unidentified armed men had been instituted and was under way. He also noted that various law-enforcement agencies had not arrested Alis Zubirayev and had no information on his whereabouts.<\/span><\/p>\n 33.\u00a0\u00a0On 23 May and 2 June 2005 the prosecutor’s office of the Chechen Republic forwarded the first applicant’s complaints to the district prosecutor’s office.<\/span><\/p>\n 34.\u00a0\u00a0On 19 July 2005 the military prosecutor’s office of military unit no.\u00a020102 informed the first applicant that the investigation in case no.\u00a044004 pending before the district prosecutor’s office had been suspended and that military involvement in the crime had not been proven.<\/span><\/p>\n 35.\u00a0\u00a0On 1 September 2005 the Prosecutor General’s Office informed the first applicant that the investigation in case no. 44004 had been suspended on 9 August 2005 for failure to identify those responsible and then resumed on 19 August 2005. It was ongoing under their supervision.<\/span><\/p>\n 36.\u00a0\u00a0On 5 October 2005 the district prosecutor’s office informed the second applicant that the investigation in case no. 44004 suspended on 18\u00a0September 2005 had been resumed.<\/span><\/p>\n 37.\u00a0\u00a0On 26 June 2007 the district prosecutor’s office informed the second applicant that the investigation had been resumed for ten days.<\/span><\/p>\n <\/a>38.\u00a0\u00a0On 4 July 2007 the district prosecutor’s office granted the first applicant victim status.<\/span><\/p>\n 39.\u00a0\u00a0On 16 July 2007 the first applicant requested the district prosecutor’s office to resume the investigation into her son’s kidnapping and to allow her access to the investigation file.<\/span><\/p>\n 40.\u00a0\u00a0In the autumn of 2007 case no. 44004 was transferred to the Investigative Committee of the Department of the Russian Prosecutor’s Office for the Chechen Republic. The applicants were not officially notified of it.<\/span><\/p>\n 41.\u00a0\u00a0On 8 May 2008 the Investigative Committee of the Department of the Russian Prosecutor’s Office for the Chechen Republic informed the applicants’ representative that no access to the file in case no. 44004 could be granted, as the investigation had not been completed, and that it had been suspended on 1 May 2008.<\/span><\/p>\n <\/a>42.\u00a0\u00a0In a written statement addressed to the Court the first applicant noted that on an unspecified date she had participated in a confrontation with A.K. organised by the district prosecutor’s office. In the course of the confrontation A.K. had been afraid to admit that he had seen another person in the UAZ on the night of his arrest. The first applicant had reproached him for cowardice and then A.K. had told the investigator that there had been a second detained person in the UAZ but he had not seen his face. A.K. had signed an interview record containing his statement which was kept in the investigation file.<\/span><\/p>\n 2.\u00a0\u00a0Information submitted by the Government<\/span><\/p>\n 43.\u00a0\u00a0On 27 December 2004 the district prosecutor’s office received the second applicant’s complaint concerning his son’s abduction.<\/span><\/p>\n 44.\u00a0\u00a0On 6 January 2005 the district prosecutor’s office instituted an investigation of Alis Zubirayev’s abduction under Article 126 \u00a7 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned the number 44004.<\/span><\/p>\n 45.\u00a0\u00a0On unspecified dates the applicants were granted victim status in case no. 44004.<\/span><\/p>\n 46.\u00a0\u00a0On an unspecified date the house at 8 Lenin Street was inspected as a crime scene. The investigators established that there was no mess inside the house and did not seize anything.<\/span><\/p>\n 47.\u00a0\u00a0On an unspecified date the second applicant was questioned. He stated that at about 5.30 a.m. on 21 December 2004 six unknown armed men had entered his courtyard and started knocking at the entrance door of the house. Three of the armed men had gone to Mamed Zubirayev’s house located in the same courtyard. Alis Zubirayev had opened the door and three armed men had burst in. They had hit Alis Zubirayev with a machine gun butt and demanded the family members to produce identity papers. Having checked Alis Zubirayev’s papers they had taken the young man outside, put him in an UAZ vehicle without registration numbers and driven away. The UAZ was accompanied by an APC with its registration numbers covered with mud. At the time of his son’s abduction two other APCs had blocked a road leading out of the village. A.K. had also been abducted by unknown men and taken away in the APC. Two or three days later A.K. had returned home and said that at some point he had been out in the UAZ vehicle in which another detainee had been kept. On the day of his son’s abduction the second applicant contacted Mr A., the ROVD head, who had told him that he had sent a UAZ vehicle to the village of Chechen-Aul to arrest Mr S.-M.K and Mr M.A. and that ROVD servicemen had not arrested Alis Zubirayev.<\/span><\/p>\n 48.\u00a0\u00a0The first applicant and several other witnesses made identical statements. During her second interview the first applicant added that the armed men had taken away her son’s identity papers and warm clothing that she had given them for Alis Zubirayev.<\/span><\/p>\n 49.\u00a0\u00a0On an unspecified date the head of the local administration was questioned. He stated that on 22 December 2004 he had learned of Alis Zubirayev’s abduction from a local policeman. Prior to that date he had not been acquainted with the Zubirayevs. The local administration had not received any complaints about Alis Zubirayev’s behaviour before his kidnapping.<\/span><\/p>\n 50.\u00a0\u00a0On an unspecified date A.K. was questioned. He stated that at about 5.30 a.m. on 21 December 2004 police officers had entered his house and asked him to go with them to the ROVD. At first he had been put in an APC and then in an UAZ vehicle in which he had travelled with the policemen. Upon arrival to the ROVD he had been questioned and then released. Having returned home he had learned of Alis Zubirayev’s kidnapping. He had been transferred to the ROVD on his own and had not seen Alis Zubirayev on its premises.<\/span><\/p>\n 51.\u00a0\u00a0The investigators questioned several other villagers of Chechen-Aul who made no significant statements.<\/span><\/p>\n <\/a>52.\u00a0\u00a0On an unspecified date Mr A., the ROVD head, was questioned. He stated that he was not acquainted with the Zubirayevs. On 21 December 2004 ROVD policemen and servicemen of the military commander’s office of the Groznenskiy District had carried out a special operation to arrest S.-M.K. who had escaped. The servicemen had then questioned his brother, A.K., and released him after a check. Alis Zubirayev had not been arrested in the course of the special operation. The ROVD had sent an UAZ vehicle to carry out the special operation while the military commander’s office had provided an APC.<\/span><\/p>\n 53.\u00a0\u00a0A number of the ROVD servicemen made similar statements. One of them added that the applicants had contacted him in December 2004 in relation to Alis Zubirayev’s kidnapping. The Government did not disclose the servicemen’s identities.<\/span><\/p>\n 54.\u00a0\u00a0The investigators sent a number of queries concerning Alis Zubirayev to various State agencies and detention facilities. In reply they were informed that the young man had not been arrested or prosecuted.<\/span><\/p>\n 55.\u00a0\u00a0The investigation in case no. 44004 was pending. The applicants had been duly informed of all decisions taken during the investigation.<\/span><\/p>\n 56.\u00a0\u00a0Despite specific requests by the Court the Government did not disclose any documents of the investigation file in case no.\u00a044004. 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 in the criminal proceedings.<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 57.\u00a0\u00a0For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia<\/span>, no. 40464\/02, \u00a7\u00a067-69, 10\u00a0May 2007.<\/span><\/p>\n THE LAW<\/span><\/p>\n I. \u00a0\u00a0The government’s objection AS TO non-exhaustion of domestic remedies<\/span><\/span><\/p>\n A.\u00a0\u00a0The parties’ submissions<\/span><\/p>\n 58.\u00a0\u00a0The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Alis Zubirayev had not yet been completed. They further argued that it had been open to the applicants to challenge in court or before higher prosecutors any actions or omissions of the investigating authorities, but that the applicants had not availed themselves of that remedy. They also argued that the applicants could have brought civil claims for damages but had failed to do so.<\/span><\/p>\n 59.\u00a0\u00a0The applicants contested that objection. They stated that the criminal investigation and other remedies had proved to be ineffective.<\/span><\/p>\n B.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 60.\u00a0\u00a0The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 \u00a7 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 \u00a7 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey<\/span>, 18 December 1996, \u00a7\u00a7\u00a051-52, Reports of Judgments and Decisions<\/span> 1996-VI, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey<\/span>, no. 41964\/98, \u00a7 64, 27\u00a0June 2006).<\/span><\/p>\n 61.\u00a0\u00a0It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan<\/span>, cited above,\u00a0\u00a7\u00a065).<\/span><\/p>\n 62.\u00a0\u00a0 The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.<\/span><\/p>\n 63.\u00a0\u00a0As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v.\u00a0Russia<\/span>, nos.\u00a057942\/00 and 57945\/00, \u00a7\u00a7\u00a0119-21, 24 February 2005, and Estamirov and Others v. Russia<\/span>, no.\u00a060272\/00, \u00a7\u00a077, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.<\/span><\/p>\n 64.\u00a0\u00a0As regards the criminal-law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law-enforcement authorities that Alis Zubirayev had been kidnapped and that an investigation into the incident had been pending since 6 January 2005. The applicants and the Government dispute the effectiveness of this investigation.<\/span><\/p>\n
\n<\/span><\/p>\n
<\/span><\/p>\n
\n<\/span> Nina Vaji\u0107,
\n<\/span> Anatoly Kovler,
\n<\/span> Elisabeth Steiner,
\n<\/span> Khanlar Hajiyev,
\n<\/span> Giorgio Malinverni,<\/span><\/span><\/p>\n
\n<\/span>and S\u00f8ren Nielsen, Section Registrar<\/span><\/span>,<\/span><\/p>\n