The ECHR case of Zaurbekova and Zaurbekov v. Russia (application no. 27183\/03).<\/p>\n
<\/p>\n
..<\/span><\/p>\n \n \u2026<\/span><\/p>\n .<\/span><\/p>\n EUROPEAN COURT OF HUMAN RIGHTS<\/span><\/span><\/p>\n CASE OF ZAURBEKOVA AND ZAURBEKOVA v. RUSSIA<\/span><\/span><\/p>\n (Application no. 27183\/03)<\/span><\/span><\/p>\n JUDGMENT<\/span><\/span><\/p>\n This version was rectified on 12 March 2009<\/span><\/span><\/p>\n under Rule 81 of the Rules of Court<\/span><\/span><\/p>\n STRASBOURG<\/span><\/span><\/p>\n 22 January 2009<\/span><\/span><\/p>\n This judgment will become final in the circumstances set out in Article\u00a044<\/span> \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/span><\/span><\/p>\n In the case of Zaurbekova and Zaurbekova 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, Having deliberated in private on 16 December 2008,<\/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. 27183\/03) 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 two Russian nationals, Ms Tumisha Magomedovna Zaurbekova and Ms Maryam Dushayevna Zaurbekova (\u201cthe applicants\u201d), on 18 July 2003.<\/span><\/p>\n 2.\u00a0\u00a0The applicants, who had been granted legal aid, were represented by lawyers of the Stichting Russian Justice Initiative (\u201cthe SRJI\u201d), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (\u201cthe Government\u201d) were represented first by Mr P. Laptev and then by Ms V. Milinchuk, both former Representatives of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n 3.\u00a0\u00a0The applicants alleged, in particular, that their close relative had disappeared following his unacknowledged detention and that there had been no adequate investigation into the matter. They further complained of their mental suffering on account of these events. The second applicant also complained of a violation of the right to respect for home and property rights in respect of herself and her missing relative. Lastly, the applicants complained of the lack of effective remedies in respect of those violations. They relied on Articles 2, 3, 5, 8 and 13 of the Convention and Article 1 of Protocol No. 1.<\/span><\/p>\n 4.\u00a0\u00a0On 29 August 2004 the President of the First Section decided to grant priority to the application under Rule 41 of the Rules of Court.<\/span><\/p>\n 5.\u00a0\u00a0By a decision of 11 October 2007 the Court declared the application partly admissible.<\/span><\/p>\n 6.\u00a0\u00a0The applicants and the Government each filed further written observations (Rule 59 \u00a7 1).<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 7.\u00a0\u00a0The applicants were born in 1943 and 1975 respectively and live in Urus-Martan.<\/span><\/p>\n A.\u00a0\u00a0The facts<\/span><\/p>\n 8.\u00a0\u00a0The first applicant has two children: Isa Zaurbekov, born in 1967, and the second applicant. At the material time her two children were living temporarily in a block of flats at 1 Kirov Avenue in Grozny, Chechnya. Isa Zaurbekov worked as a car mechanic in a local repair shop.<\/span><\/p>\n 1.\u00a0\u00a0Detention of Isa Zaurbekov<\/span><\/p>\n (a)\u00a0\u00a0The applicants’ account<\/span><\/p>\n 9.\u00a0\u00a0On 11 February 2003, at around 3 a.m., a group of armed men forcibly entered the block of flats at 1 Kirov Avenue and attempted to break down the door of a flat in which the second applicant and Isa Zaurbekov lived. The men managed to make a hole in the door. One of them then pointed his sniper rifle (vintorez<\/span>) through the hole at the second applicant, who had been awakened by the noise, and ordered her to let them in. As soon as the second applicant opened the door, the men pushed her aside and about 15 of them entered the flat. They were wearing camouflage uniforms and one of them was masked. The men had sniper rifles with optic sights and silencers. According to the second applicant, the men who raided her flat belonged to the Russian federal troops, since they spoke Russian without an accent, had a Slavic appearance, were equipped with military vehicles and were able to circulate freely in Grozny during the curfew.<\/span><\/p>\n 10.\u00a0\u00a0One of the men ordered another one to get the second applicant \u201cout of the way\u201d, and the latter put his gun into her mouth. Then he covered the second applicant’s mouth with a rag and tied her hands with a rope.<\/span><\/p>\n 11.\u00a0\u00a0The intruders did not introduce themselves or produce any documents to authorise their actions and searched the flat. They forced Isa Zaurbekov, who was asleep in his room, out of bed and ordered him to lie down. The men tied his hands and covered his mouth with adhesive tape. They then ordered the second applicant’s brother to produce his identity papers, and the latter indicated that his passport was in his jacket. One of the servicemen showed Isa Zaurbekov’s passport to the masked man and asked if that was him. The masked man shook his head in the negative. The former servicemen stated that they would \u201ctake [Isa Zaurbekov] away anyway and then find out\u201d. Although Isa Zaurbekov was only wearing trousers and a shirt and was barefoot, the men did not allow him to take his overcoat.<\/span><\/p>\n 12.\u00a0\u00a0Before leaving the flat one of the men ordered the second applicant to stay immobile for half an hour if she \u201cwanted to live\u201d. However, the one who had tied her up told her quietly that he had made the knot loose so that she could free herself easily. After the men had left, the second applicant managed to untie her hands. She then went out on the balcony and saw about 40 servicemen in the street. There were also three armoured personnel carriers (\u201cAPCs\u201d), a white VAZ-2106 Zhiguli car and a UAZ vehicle. They left in the direction of the federal military base in Khankala. The applicants have had no news of Isa Zaurbekov since that date. The second applicant also examined the flat and found out that a computer central processing unit, a number of compact discs and a family photo album were missing.<\/span><\/p>\n 13.\u00a0\u00a0The applicants corroborated their account of events of 11 February 2003 with two eyewitness statements, notably those of Ms M.-M. and Ms\u00a0D., the second applicant’s neighbours. Both women confirmed that on the night of the incident they had seen a group of about 40 men in camouflage uniforms and masks armed with machine guns and that those men had taken away Isa Zaurbekov. Ms M.-M. stated that she had also seen, and Ms D. stated that she had heard the noise of, military vehicles.<\/span><\/p>\n (b)\u00a0\u00a0The Government’s account<\/span><\/p>\n 14.\u00a0\u00a0In the Government’s submission, on 11 February 2003, at around 3\u00a0a.m., \u201cunidentified persons in camouflage uniforms armed with automatic firearms\u201d had taken Isa Zaurbekov away in an unknown direction from flat no.\u00a049 of the block of flats at 1 Kirov Street. The same persons had \u201ccommitted a theft\u201d of the Zaurbekovs’ property, notably a computer central processing unit, compact discs and a family photo album.<\/span><\/p>\n 2.\u00a0The applicants’ search for Isa Zaurbekov<\/span><\/p>\n 15.\u00a0\u00a0According to the applicants, on 12 February 2003 they complained in writing about their relative’s detention to the Khankala military prosecutor but received no reply. The applicants did not furnish the Court with a copy of their complaint.<\/span><\/p>\n 16.\u00a0\u00a0Following Isa Zaurbekov’s detention, the applicants repeatedly applied in person and in writing to various public bodies, including prosecutors at various levels, administrative authorities of Chechnya, the Office of the President of Russia (\u0410\u0434\u043c\u0438\u043d\u0438\u0441\u0442\u0440\u0430\u0446\u0438\u044f \u041f\u0440\u0435\u0437\u0438\u0434\u0435\u043d\u0442\u0430 \u0420\u0424<\/span>), the Chairman of the State Duma (\u041f\u0440\u0435\u0434\u0441\u0435\u0434\u0430\u0442\u0435\u043b\u044c \u0413\u043e\u0441\u0443\u0434\u0430\u0440\u0441\u0442\u0432\u0435\u043d\u043d\u043e\u0439 \u0414\u0443\u043c\u044b<\/span>) and the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit (\u041f\u043e\u043b\u043d\u043e\u043c\u043e\u0447\u043d\u044b\u0439 \u043f\u0440\u0435\u0434\u0441\u0442\u0430\u0432\u0438\u0442\u0435\u043b\u044c \u041f\u0440\u0435\u0437\u0438\u0434\u0435\u043d\u0442\u0430 \u0420\u0424 \u0432 \u042e\u0436\u043d\u043e\u043c \u0444\u0435\u0434\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u043c \u043e\u043a\u0440\u0443\u0433\u0435<\/span>). They were supported in their efforts by the SRJI. In their letters to the authorities the applicants and the SRJI referred to the events of 11 February 2003 and asked for assistance and details of the investigation. Mostly these enquiries remained unanswered, or only formal responses were given stating that the applicants’ requests had been forwarded to various prosecutor’s offices for examination.<\/span><\/p>\n 3.\u00a0Official investigation<\/span><\/p>\n 17.\u00a0\u00a0In their observations submitted prior to the decision on admissibility, the Government stated that the applicants had first notified the authorities of their relative’s detention on 14 April 2003, when the second applicant’s complaint about the events of 11 February 2003 had been received by the Grozny prosecutor’s office (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0433.<\/span> \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e<\/span>). In the Government’s submission, on 25 April 2003 the Grozny prosecutor’s office forwarded this complaint \u201cfor examination\u201d to the office of the interior of the Leninskiy District of Grozny (\u041b\u0435\u043d\u0438\u043d\u0441\u043a\u0438\u0439 \u043e\u0442\u0434\u0435\u043b \u0432\u043d\u0443\u0442\u0440\u0435\u043d\u043d\u0438\u0445 \u0434\u0435\u043b \u0433.<\/span> \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e<\/span>). The latter sent the documents on the result of the examination to the Grozny prosecutor’s office on 23 May 2003. The Government also submitted that on 17 June 2003 the Grozny prosecutor’s office had instituted a criminal investigation into Isa Zaurbekov’s disappearance under Article\u00a0126\u00a0(2) of the Russian Criminal Code (aggravated kidnapping) and that the file had been registered as no. 20123.<\/span><\/p>\n 18.\u00a0\u00a0In their observation submitted after the present case had been declared partly admissible, the Government stated that the criminal proceedings in connection with the abduction of the applicants’ relative had been instituted upon a written complaint by the second applicant, received by the Grozny prosecutor’s office on 19 June 2003. The Government did not indicate the date on which, according to them, the criminal proceedings had been instituted.<\/span><\/p>\n 19.\u00a0\u00a0The file on the present case contains a written complaint concerning Isa Zaurbekov’s abduction, signed by the second applicant and dated 9\u00a0March 2003. The document bears a handwritten note \u201creceived\u201d \u2013 the form of the verb \u201creceive\u201d indicating that this action was performed by a woman \u2013 and the date \u201c14 April 2003\u201d.<\/span><\/p>\n 20.\u00a0\u00a0In letters of 25 and 30 June 2003 the prosecutor’s office of the Chechen Republic (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u0427\u0435\u0447\u0435\u043d\u0441\u043a\u043e\u0439 \u0420\u0435\u0441\u043f\u0443\u0431\u043b\u0438\u043a\u0438, <\/span> \u201cthe republican prosecutor’s office\u201d) informed the first applicant that criminal proceedings had been brought in connection with her son’s abduction by unidentified persons and that she would be notified of the results of the investigation.<\/span><\/p>\n 21.\u00a0\u00a0By a letter of 23 July 2003 the military prosecutor of the United Group Alignment (\u0432\u043e\u0435\u043d\u043d\u044b\u0439 \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440 \u041e\u0431\u044a\u0435\u0434\u0438\u043d\u0435\u043d\u043d\u043e\u0439 \u0433\u0440\u0443\u043f\u043f\u044b \u0432\u043e\u0439\u0441\u043a<\/span>) transmitted the first applicant’s application to the military prosecutor of military unit no.\u00a020102 (\u0432\u043e\u0435\u043d\u043d\u044b\u0439 \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440 \u0432\u043e\u0439\u0441\u043a\u043e\u0432\u043e\u0439 \u0447\u0430\u0441\u0442\u0438<\/span> 20102<\/span>) for examination.<\/span><\/p>\n 22.\u00a0\u00a0On 31 July 2003 a deputy Prosecutor General of Russia (\u0437\u0430\u043c\u0435\u0441\u0442\u0438\u0442\u0435\u043b\u044c \u0413\u0435\u043d\u0435\u0440\u0430\u043b\u044c\u043d\u043e\u0433\u043e \u043f\u0440\u043e\u043a\u0443\u0440\u043e\u0440\u0430 \u0420\u0424<\/span>) informed the first applicant that he had forwarded her request to establish the whereabouts of her son, who had been detained by \u201cindividuals wearing military uniforms\u201d, to the republican prosecutor’s office, which would notify her of any developments in the case.<\/span><\/p>\n 23.\u00a0\u00a0In a decision of 11 August 2003 an investigator of the prosecutor’s office of the Leninskiy District of Grozny (\u043f\u0440\u043e\u043a\u0443\u0440\u0430\u0442\u0443\u0440\u0430 \u041b\u0435\u043d\u0438\u043d\u0441\u043a\u043e\u0433\u043e \u0440\u0430\u0439\u043e\u043d\u0430 \u0433. \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e<\/span> \u2013 <\/span>\u201cthe district prosecutor’s office\u201d) acknowledged the first applicant as a victim in criminal case no. 20123.<\/span><\/p>\n 24.\u00a0\u00a0In a letter of 25 August 2003 the republican prosecutor’s office again informed the first applicant that criminal case no. 20123 had been opened in connection with Isa Zaurbekov’s abduction and that the term for a preliminary investigation had been extended until 17 September 2003. The letter added that investigative measures were being taken to identify the alleged perpetrators and that the republican prosecutor’s office was closely supervising the investigation.<\/span><\/p>\n 25.\u00a0\u00a0On 25 September 2003, in reply to the second applicant’s application of 15 March 2003, the Grozny prosecutor’s office informed her that the preliminary investigation in criminal case no. 20153 [rather than 20123] opened on 17 June 2003 into her brother’s disappearance had been suspended on account of the \u201cfailure to identify those responsible\u201d; however, \u201cthe search for Isa Zaurbekov had not been discontinued\u201d.<\/span><\/p>\n 26.\u00a0\u00a0On 29 October 2003, in reply to an application lodged by the SRJI on the applicants’ behalf, the republican prosecutor’s office stated that the criminal proceedings in case no. 48193 [rather than 20123] instituted on 17\u00a0June 2003 in connection with Isa Zaurbekov’s abduction by unknown individuals, had been suspended on 17 September 2003, as the alleged perpetrators could not be established. The SRJI and the applicants were advised to address any further queries to the district prosecutor’s office.<\/span><\/p>\n 27.\u00a0\u00a0In a letter of 2 December 2003, in reply to another query from the SRJI, the republican prosecutor’s office restated that the criminal investigation into Isa Zaurbekov’s abduction had been commenced on 17\u00a0June 2003.<\/span><\/p>\n 28.\u00a0\u00a0On 11 December 2003 the district prosecutor’s office informed the first applicant that all the necessary investigative measures had been taken in the course of the investigation in criminal case no. 20123, but the location of her son had not been established, and that at present the search for Isa Zaurbekov was still in progress.<\/span><\/p>\n 29.\u00a0\u00a0On 11 April 2005 the republican prosecutor’s office notified the first applicant, in reply to an enquiry she had made on 25 February 2005, that the file on the case concerning her son’s abduction had been sent to the district prosecutor’s office \u201cfor the resumption of the investigation\u201d.<\/span><\/p>\n 30.\u00a0\u00a0In a decision of 14 April 2005 the district prosecutor’s office granted the status of victim of a crime to the second applicant. The applicants submitted a copy of that decision.<\/span><\/p>\n 31.\u00a0\u00a0On the same date the district prosecutor’s office informed the first applicant that the proceedings in case no. 20123 had been resumed.<\/span><\/p>\n 32.\u00a0\u00a0On 15 April 2005 the investigator in charge of the district prosecutor’s office sent requests to prosecutors of regions neighbouring Chechnya as well as to prosecutors of various districts in Chechnya, describing Isa Zaurbekov’s appearance and distinguishing marks and asking them to check whether he was listed among unidentified dead bodies and whether any criminal cases had ever been opened in connection with the discovery of corpses with a similar appearance and distinguishing marks to those of Isa Zaurbekov.<\/span><\/p>\n 33.\u00a0\u00a0On 5 May 2005 the investigator in charge sent a reminder to the district prosecutor’s offices of Chechnya, asking them to comply with the request of 15 April 2005, which had remained unanswered.<\/span><\/p>\n 34.\u00a0\u00a0On 14 May 2005 the district prosecutor’s office notified the first applicant of the suspension of the investigation on an unspecified date. The letter also stated that measures aimed at establishing the identity of the alleged perpetrators were being taken.<\/span><\/p>\n 35.\u00a0\u00a0By a letter of 10 June 2005 the republican prosecutor’s office transmitted the first applicant’s query to the district prosecutor’s office for examination.<\/span><\/p>\n 36.\u00a0\u00a0On 13 July 2005 the office of the interior of the Urus-Martan District of Grozny informed the first applicant that it was taking steps aimed at establishing Isa Zaurbekov’s whereabouts and finding those involved in his abduction.<\/span><\/p>\n 37.\u00a0\u00a0On 11 August 2005 the district prosecutor’s office replied to the first applicant’s query of 2 August 2005. The letter stated that the investigation in criminal case no. 20123 in connection with her son’s abduction had been opened on 17 June 2003, and that although all possible measures had been taken, Isa Zaurbekov’s whereabouts and the identity of the alleged perpetrators could not be established. It went on to say that a number of witnesses residing in the same block of flats where Isa Zaurbekov and the second applicant had lived had been questioned and that relevant enquiries had been sent to various State bodies in Chechnya and neighbouring regions; however, those steps had brought no positive results. The letter assured the first applicant that the search for her son was in progress and stated that she could access the file of criminal case no. 20123 at any time during working hours on the premises of the district prosecutor’s office.<\/span><\/p>\n 38.\u00a0\u00a0In a letter of 18 August 2005 the republican prosecutor’s office informed the applicants that the investigation in case no. 20123 had been reopened.<\/span><\/p>\n 39.\u00a0\u00a0It appears that at some point the investigation was again suspended.<\/span><\/p>\n 40.\u00a0\u00a0In a letter of 28 November 2005 the district prosecutor’s office notified the applicants that the investigation in case no. 20123 had been resumed on the same date.<\/span><\/p>\n 41.\u00a0\u00a0On 28 December 2005 the district prosecutor’s office informed the applicants of the adjournment of the proceedings in case no. 20123 on account of the failure to identify the alleged perpetrators.<\/span><\/p>\n 42.\u00a0\u00a0Referring to the information provided by the Prosecutor General’s Office, the Government stated in their memorials submitted prior to the decision on admissibility that the investigation into Isa Zaurbekov’s abduction had been commenced on 17 June 2003 and then suspended on 17\u00a0September 2003, 14 May and 17 September 2005 and resumed on 14\u00a0April, 17 August and 28 November 2005, but had so far failed to identify those responsible. In their memorial submitted after the decision on admissibility, the Government stated that on the latest occasion the investigation had been suspended on 28 December 2005 and then reopened on 10 November 2007.<\/span><\/p>\n 43.\u00a0\u00a0In the Government’s submission, the second applicant was questioned on 10 August and 15\u00a0September\u00a02003 and 14 April 2005 and declared a victim of a crime on 4 September 2003. During her witness interview of 10 August 2003 the second applicant reiterated her account of events of 11 February 2003 and, in particular, stated that the men who had taken away her brother had been wearing camouflage uniforms and masks and had had machine guns, sniper rifles and portable transmitters, that there had been around 15 of them in her flat and that she had seen from the balcony of her flat that they had left in three armoured personnel carriers, UAZ vehicles, and a white VAZ 2106 Zhiguli car in the direction of the 6th mini-district of Grozny (6-\u0439 \u043c\u0438\u043a\u0440\u043e\u0440\u0430\u0439\u043e\u043d \u0433. \u0413\u0440\u043e\u0437\u043d\u043e\u0433\u043e<\/span>). The men had also taken the central processing unit of a desktop computer, a computer mouse, 10 compact discs and a family photo album. According to the Government, in her interview of 15 September 2003 the second applicant also stated that the reason for the abduction of her brother, Isa Zaurbekov, could have been the fact that their other brother, Kh., had been a member of illegal armed groups. During her interview of 14 April 2005, the second applicant described Isa Zaurbekov’s distinguishing marks and the clothes which he had been wearing on the night of his abduction and assessed the value of the stolen computer central processing unit as amounting to 20,000 Russian roubles (RUB).<\/span><\/p>\n 44.\u00a0\u00a0The investigators also questioned the first applicant on 11 August and 19 September 2003 and declared her a victim of a crime on 11 August 2003. She stated that the second applicant had informed her in the early hours of 12 February 2003 of Isa Zaurbekov’s detention and that the following day she had notified all relevant State bodies, but her son’s whereabouts had not been established.<\/span><\/p>\n 45.\u00a0\u00a0Apart from the applicants, the authorities also questioned the applicants’ relatives and a number of the second applicant’s neighbours. As can be ascertained from the Government’s submissions, two of the neighbours were questioned in September 2003, and the others in April and December 2005. Most of them stated that they had not witnessed Isa Zaurbekov’s abduction or seen any servicemen or military vehicles on the night of the incident, but had heard the next day that Isa Zaurbekov had been taken by servicemen in armoured personnel carriers. One of the neighbours, Mr D., submitted that on the night of the incident he had seen about ten armed men in camouflage uniforms and masks near the block of flats in which he, the second applicant and Isa Zaurbekov had lived but he had not seen any military vehicles. Another neighbour, Mr Kh., stated that on the night of the incident, at around 3 a.m. he had seen armed men in masks and camouflage uniforms on his balcony, from which they had climbed to upper floors, and that he had heard the noise of military vehicles but not very clearly because of his impaired hearing. According to the Government, Ms M.-M. submitted that on 12 February 2003 she had heard from her neighbours that Isa Zaurbekov had been taken away in the night by armed men in camouflage uniforms speaking Russian. It does not appear that any other witnesses were questioned in the course of the investigation.<\/span><\/p>\n 46.\u00a0\u00a0The Government also stated that the investigating authorities had sent a number of enquiries to detention centres in Chechnya and further afield in the Northern Caucasus, the regional and federal security agencies and military authorities. The law-enforcement bodies had provided information that there had been no special operations on 11 February 2003 during which Isa Zaurbekov could have been detained, that no criminal proceedings had ever been brought and no special measures had ever been taken, against him, and that he had never been arrested or detained by any of them and had not been listed among detainees of any detention centres. The Government did not specify the dates on which the enquiries had been sent.<\/span><\/p>\n 47.\u00a0\u00a0In the Government’s submission, on 14 April 2005 criminal proceedings were brought under Article 162 (3) of the Russian Criminal Code (aggravated robbery) in connection with the fact that on 11 February 2003 the men who had abducted Isa Zaurbekov had also taken the second applicant’s property. The case file was assigned the number 40057. On the same date the second applicant had been granted the status of victim in that case. On 15 April 2005 cases nos. 20123 and 40057 were joined under the former number.<\/span><\/p>\n 4.\u00a0\u00a0The applicants’ access to the case file<\/span><\/p>\n 48.\u00a0\u00a0In the applicants’ submission, upon receipt of the letter of 11\u00a0August\u00a02005 they made a number of attempts to gain access to the file on the criminal investigation into Isa Zaurbekov’s abduction and visited the district prosecutor’s office on several occasions. According to them, on one occasion they were denied access to the case file as the investigator in charge was away, and on another occasion they were unable to read the case file as it had been sent to the republican prosecutor’s office.<\/span><\/p>\n 49.\u00a0\u00a0On 20 December 2005 the second applicant again visited the district prosecutor’s office and was provided with copies of several documents from the file. Those included two requests of 15 April 2005 to prosecutors of regions neighbouring Chechnya as well as to prosecutors of various districts in Chechnya, describing Isa Zaurbekov’s appearance and distinguishing marks and asking them to check whether he was listed among unidentified dead bodies and whether any criminal cases had ever been opened in connection with the discovery of corpses with his appearance and distinguishing marks, and a reminder of 5\u00a0May 2005 to carry out the steps indicated in the requests of 15 April 2005. According to the second applicant, the investigator in charge stated that he could not give her access to any other materials.<\/span><\/p>\n 50.\u00a0\u00a0On 8 February 2006 the first applicant and a representative of the SRJI visited the district prosecutor’s office and were given access to the case file. They were not allowed to make any photocopies or to take written notes, but the first applicant managed to memorise the contents of a number of documents.<\/span><\/p>\n 51.\u00a0\u00a0In particular, while studying the case file, the first applicant came across information stating that the preliminary investigation had established that a group of armed servicemen of the Russian law-enforcement agencies had taken away Isa Zaurbekov at about 3 a.m. on 11 February 2003. The same group of servicemen had taken away two other men, a father and son named Sh., in a neighbouring district of Grozny at about 3.30 a.m. on the date in question and had attempted to take away another person, who, however, had been away from home at that moment.<\/span><\/p>\n 52.\u00a0\u00a0The first applicant read a witness statement dated 23\u00a0August 2005 by Mr Sh., a relative of the father and son who had disappeared after 11\u00a0February 2003, to the effect that on 11 February 2003 armed people in four armoured personnel carriers and two UAZ vehicles had taken away the father and son from the Sh. family. Mr Sh. also stated that on 18 February 2003 he and an investigator of the Grozny prosecutor’s office had visited a nearby federal checkpoint and found out that on 11 February 2003 at about 3 a.m. a federal military convoy had passed through the checkpoint in the direction of the districts where Isa Zaurbekov and the two men from the Sh. family had been apprehended. The convoy, which had returned an hour later, consisted of four armoured personnel carriers and two UAZ vehicles.<\/span><\/p>\n 53.\u00a0\u00a0The Government, who were invited by the Court to comment on these submissions by the first applicant, replied that the version concerning the possible involvement of federal servicemen or personnel of the law-enforcement agencies in Isa Zaurbekov’s abduction had been thoroughly checked during the investigation, but no such involvement had been established. The Government refused to provide a transcript of a witness interview of Mr Sh. despite the Court’s specific request to that end, and stated that during that interview Mr Sh. had indicated that he had heard from his brother that on 12 February 2003 the father and son Sh. had been taken away from their privately owned house in a village near Grozny by a group of about 40 federal servicemen in four armoured personnel carriers and two UAZ vehicles. Mr Sh. had also talked to duty officers at a nearby federal checkpoint, who had confirmed that a military convoy had passed through in the direction of the village where the two men from the Sh. family had been taken and then back in the direction of Grozny. According to the Government, there had been no link between the abduction of Isa Zaurbekov and that of the father and son named Sh., and there were no grounds to claim that they all had been abducted by the same men.<\/span><\/p>\n 54.\u00a0\u00a0The first applicant also saw a witness statement by Mr Kh. to the effect that he had heard the noise of a heavy military vehicle on the night when Isa Zaurbekov had been apprehended, and statements by Mr and Mrs\u00a0Id., the second applicant’s neighbours, to the effect that they had been asleep on the night of the incident and had learnt about Isa Zaurbekov’s detention on the next day.<\/span><\/p>\n 55.\u00a0\u00a0According to the first applicant, there were no documents disclosing State secrets or military information in the case file.<\/span><\/p>\n B.\u00a0\u00a0The Court’s requests for the investigation file<\/span><\/p>\n 56.\u00a0\u00a0Despite specific requests by the Court on two occasions, the Government did not furnish it with a copy of any of the documents from the criminal investigation file. They only submitted a list of documents in the file of criminal case no. 20123, from which it can be ascertained that there were at least 229 pages in the file. 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. At the same time, the Government suggested that a Court delegation could have access to the file on the premises of the authorities conducting the preliminary investigation, with the exception of \u201cthose documents [disclosing military information and the personal data of the witnesses], and without the right to make copies of the case file and transmit it to others\u201d.<\/span><\/p>\n 57.\u00a0\u00a0On 11 October 2007 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress of the investigation after December 2005. The Court specifically requested the Government to produce the witness statement by Mr Sh. dated 23 August 2005 referred to by the first applicant (see paragraph 52 above), and any other witness statements relating to the events of 11 February 2003. In reply, the Government refused to submit any documents from the case file and informed the Court of the latest occasions on which the investigation had been suspended and reopened (see paragraph 42 above).<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 58.\u00a0\u00a0For a summary of the relevant domestic law see Kukayev v. Russia<\/span>, no.\u00a029361\/02, \u00a7\u00a7\u00a067-69, 15\u00a0November 2007.<\/span><\/p>\n THE LAW<\/span><\/p>\n I.\u00a0\u00a0THE GOVERNMENT’S PRELIMINARY OBJECTION<\/span><\/p>\n 59.\u00a0\u00a0The Government argued that the present application should be declared inadmissible for non-exhaustion of domestic remedies, stating that the investigation into the abduction of the applicants’ relative had not yet been completed and that, in accordance with Article 125 of the Russian Code of Criminal Procedure, it had been open to the applicants to lodge court complaints about the actions or omissions of the investigating or other law-enforcement authorities, but they had not availed themselves of that remedy.<\/span><\/p>\n 60.\u00a0\u00a0The applicants contended that the fact that the investigation into the circumstances of their relative’s disappearance was still pending cast doubt upon its effectiveness rather than indicating that their complaints were premature. They further stressed that they had on numerous occasions complained to law-enforcement bodies, including various prosecutors, about the events of 11 February 2003. In this connection the applicants referred to the Court’s established case-law, stating that the authorities were under an obligation to carry out an effective investigation of their own motion once the matter had been brought to their attention. The applicants also claimed that an administrative practice consisting in the authorities’ continuing failure to conduct adequate investigations into offences committed by representatives of the federal forces in Chechnya rendered any potentially effective remedies inadequate and illusory in their case. In this connection the applicants relied on applications submitted to the Court by other individuals claiming to be victims of similar violations, and on documents by human rights NGOs and the Council of Europe.<\/span><\/p>\n 61.\u00a0\u00a0The Court notes that, in its decision of 11 October 2007, it considered that the question of exhaustion of domestic remedies was closely linked to the substance of the applicants’ complaints and that it should be joined to the merits. It will now proceed to assess the parties’ arguments in the light of the Convention provisions and its relevant practice.<\/span><\/p>\n 62.\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. There is no obligation to have recourse to remedies which are inadequate or ineffective. It 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 applicants’ complaints and offered reasonable prospects of success (see Aksoy v. Turkey<\/span>, 18 December 1996, \u00a7\u00a7 51-52, Reports of Judgments and Decisions <\/span>1996-VI; Akdivar and Others\u00a0v. Turkey<\/span>, 16\u00a0September 1996, \u00a7\u00a065-68, Reports<\/span> 1996-IV; and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey<\/span>, no. 41964\/98, \u00a7 64-65, 27 June 2006).<\/span><\/p>\n 63.\u00a0\u00a0In the present case, as to the Government’s argument that the investigation was still in progress and that the applicants had not complained to a court about the actions or omissions of the investigating or other law-enforcement authorities during the investigation in accordance with Article 125 of the Russian Code of Criminal Procedure, the Court firstly observes that the Government did not indicate which particular actions or omissions of the investigators the applicants should have challenged before a court. It further considers that this limb of the Government’s preliminary objection raises issues which are closely linked to the question of the effectiveness of the investigation, and that it would therefore be appropriate to address the matter in the examination of the substance of the applicants’ complaints under Article 2 of the Convention.<\/span><\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/span><\/p>\n 64.\u00a0\u00a0The applicants complained of a violation of the right to life in respect of their close relative, Isa Zaurbekov. They submitted that the circumstances of his disappearance and the long period during which it had not been possible to establish his whereabouts indicated that Isa Zaurbekov had been killed by the federal forces. The applicants also complained that no effective investigation had been conducted into their relative’s disappearance. They relied on Article 2 of the Convention, which reads as follows:<\/span><\/p>\n \u201c1.\u00a0\u00a0Everyone’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.<\/span><\/p>\n 2.\u00a0\u00a0Deprivation 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:<\/span><\/p>\n (a)\u00a0\u00a0in defence of any person from unlawful violence;<\/span><\/p>\n (b)\u00a0\u00a0in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;<\/span><\/p>\n (c)\u00a0\u00a0in action lawfully taken for the purpose of quelling a riot or insurrection.\u201d<\/span><\/p>\n A.\u00a0\u00a0Alleged failure to protect the right to life<\/span><\/p>\n 1.\u00a0\u00a0Submissions by the parties<\/span><\/p>\n 65.\u00a0\u00a0The applicants argued that it was beyond reasonable doubt that Isa Zaurbekov had been detained by representatives of the federal forces, this fact being confirmed by two eyewitness statements, which they had previously submitted to the Court, and by the statements of Mr Sh. contained in the file on criminal case no. 20123. They also pointed out that the investigating authorities had established the fact that the armed men who had taken Isa Zaurbekov away had used armoured personnel carriers and argued that such military vehicles had been in the exclusive possession of the federal armed forces. The applicants stressed that their relative had been apprehended in life-endangering circumstances, and the fact that he had remained missing for over three years and the Government’s failure to provide any plausible explanation as to his fate proved that he had been killed. The applicants also argued that the special operation carried out on the aforementioned date had not been properly planned and supervised by the authorities to ensure that it met the requirements of Article 2 of the Convention.<\/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> Dean Spielmann,
\n<\/span> Sverre Erik Jebens,
\n<\/span> Giorgio Malinverni, judges,
\n<\/span>and Andr\u00e9 Wampach, Deputy Section Registrar<\/span><\/span>,<\/span><\/p>\n