The ECHR case of Dzhabayeva v. Russia (application no. 13310\/04).<\/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 DZHABAYEVA v. RUSSIA<\/span><\/span><\/p>\n (Application no. 13310\/04)<\/span><\/span><\/p>\n JUDGMENT<\/span><\/p>\n STRASBOURG<\/span><\/p>\n 2 April 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 Dzhabayeva 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 12 March 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. 13310\/04) 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 a Russian national, Ms Salimat Vakhayevna Dzhabayeva (\u201cthe applicant\u201d), on 24 February 2004.<\/span><\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Ms\u00a0L. Khamzayeva, a lawyer practising in Moscow. The Russian Government (\u201cthe Government\u201d) were represented by Ms V. Milinchuk, the former Representative of the Russian Federation at the European Court of Human Rights.<\/span><\/p>\n 3.\u00a0\u00a0On 2 May 2007 the Court decided to apply Rule\u00a041 of the Rules of Court and to grant priority treatment to the application and 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 4.\u00a0\u00a0On 12 March 2009 the Court dismissed the Government’s objection concerning the application of Article\u00a029 \u00a7 3 of the Convention.<\/span><\/p>\n THE FACTS<\/span><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n 5.\u00a0\u00a0The applicant was born in 1954 and lives in Urus-Martan.<\/span><\/p>\n 6.\u00a0\u00a0The applicant’s husband, Mr Magomed Uvaysovich Dzhabayev, was born in 1953. They resided together with their three children born in 1985, 1987 and 1994 at 50 Tobolskaya Street in Grozny (\u0413\u0440\u043e\u0437\u043d\u044b\u0439, \u0443\u043b.\u00a0\u0422\u043e\u0431\u043e\u043b\u044c\u0441\u043a\u0430\u044f, \u0434. 50<\/span>). However, on an unspecified date in 1999 the applicant with her three children temporarily moved to the neighbouring republic of Ingushetia where they stayed in the town of Karabulak in a camp for migrants from Chechnya.<\/span><\/p>\n A.\u00a0\u00a0Apprehension and subsequent disappearance of Mr Magomed Dzhabayev<\/span><\/p>\n 1.\u00a0\u00a0The applicant’s account<\/span><\/p>\n 7.\u00a0\u00a0In her application form the applicant submitted that on 10 March 2000 Mr Dzhabayev had been apprehended by officers of the Oktyabrskiy Temporary Office of the Interior (VOVD) in the yard of his house at 50\u00a0Tobolskaya Street in Grozny. Subsequently he had been taken to the Oktyabrskiy VOVD, after which he was never seen again.<\/span><\/p>\n 8.\u00a0\u00a0At the same time the applicant enclosed a copy of her application to the Chairman of the National Public Commission for Investigation of Offences and Protection of Human Rights in the North Caucasus of 25\u00a0August 2000 where she provided a detailed account of the circumstances of her husband’s alleged detention and contended that he had been apprehended while queuing at a centre of distribution of foodstuffs. The application read as follows:<\/span><\/p>\n \u201cI … ask you for help in searching for my husband, the father of my children, Magomed Uvaysovich Dzhabayev, born in 1953, a resident of Grozny.<\/span><\/p>\n During the attack at Grozny and the military campaign my husband… stayed at home in Grozny at the address Oktyabrskiy district, Tobolskaya Street, 50, Apt. 1 (Okruzhnaya District). I saw him for the last time on 2 March 2000. He passed all the checks by the federal [forces] and was entitled to receive foodstuffs at the centre located at Saykhanova Street. On 10 March 2000 at 10 a.m. my husband … went to the centre to receive foodstuffs, and there he saw [officers of federal forces] bullying a man. He came towards them, showed his passport and asked, what the man had done wrong. Having checked his papers, [the officers of federal forces] grabbed my husband and threatened him with execution. A woman who was also queuing at the centre rushed to their help, but [the officers of federal forces] threatened to execute her as well. After that [the officers of federal forces] took my husband and the other man, [Mr T.], born in 1951 and handicapped. They took them to a destroyed house and started bullying them. They put machine guns on their necks, put glasses on them and took photos. [The officers] told them to stand like rebel fighters. Then they called somebody by portable radio transmitter and said that … they were bringing two more [men]. After that they placed sacks on the head of my husband and [Mr T.] and started to beat and kick them…, they beat their heads against an armoured personnel-carrier and when they lost consciousness put them in [a military car] and drove to an unknown destination. According to a witness, they were officers of the Moskovskiy SOBR [Special Fast Deployment Team] together with officers of the Oktyabrskiy ROVD [District Department of the Interior<\/span>]. I have witnesses to confirm these facts.<\/span><\/p>\n At the time I was not at home, I was in Ingushetia together with the children. On 11\u00a0March 2000 [Ms H.A.], the wife of [Mr T.] applied to the Military Commander’s Office located at the railway hospital asking for assistance in searching for her husband. The Military Commander’s Office ordered that she be taken to her husband. [Ms H.A.] was taken to the Oktyabrskiy ROVD, however, [upon arrival] she was told that neither [my husband] nor [Mr T.] were there. Then they arrested [Ms H.A.] and held her at the Oktyabrskiy ROVD until 6 p.m. When [Ms H.A.] began to make a fuss and call for the Head [of the ROVD], she heard her husband’s voice from the adjacent room. They were in the Oktyabrskiy ROVD and my husband asked her to tell somebody that he had been taken away. On 11\u00a0March 2000 I came to Grozny and asked a relative, an officer of the Special Police Unit, to help with the search.<\/span><\/p>\n When we checked at the Oktyabrskiy ROVD they told us that [my husband and Mr\u00a0T.] had been detained as a result of a passport check and had been released shortly afterwards at checkpoint no. 26. However, it appeared that checkpoint no. 26 did not exist. At the Oktyabrskiy ROVD my relative was also shown my husband’s explanatory note that later disappeared. I checked all possible places my husband might have been detained, in vain. Since 11 March 2000 my husband… has been a missing person.<\/span><\/p>\n …I ask you to assist in the search for my husband…\u201d<\/span><\/p>\n 2.\u00a0\u00a0The Government’s account<\/span><\/p>\n 9.\u00a0\u00a0The Government submitted that an investigation into the disappearance of Mr Magomed Dzhabayev had been instituted. However, the circumstances in which he had disappeared had not yet been established since there were no eyewitnesses to the events in question.<\/span><\/p>\n B.\u00a0\u00a0The search for Mr Magomed Dzhabayev and the investigation<\/span><\/p>\n 1.\u00a0\u00a0Information and documents submitted by the applicant<\/span><\/p>\n 10.\u00a0\u00a0According to the applicant, following her husband’s disappearance she had applied to various State authorities, including the Ministry of the Interior and Prosecutor’s Office of the Chechen Republic, in order to initiate the search. However, the applicant did not enclose copies of her applications apart from the one quoted in paragraph 8 above.<\/span><\/p>\n 11.\u00a0\u00a0On an unspecified date the Head of the Oktyabrskiy VOVD provided her with a certificate stating that between 10 and 12 March 2000 Mr\u00a0Dzhabayev had not been taken to the premises of the VOVD.<\/span><\/p>\n 12.\u00a0\u00a0On 7 November 2000 the Head of the Oktyabrskiy VOVD forwarded the case file concerning the applicant’s application to the Head of the Karabulak Department of the Interior in order to gather information about the time and place of Mr\u00a0Dzhabayev’s apprehension and the existing witnesses. In the letter he noted that Mr\u00a0Dzhabayev had not been taken to the Oktyabrskiy VOVD and no records of his detention had been retained.<\/span><\/p>\n 13.\u00a0\u00a0On 18 December 2000 the Deputy Prosecutor of Grozny instituted criminal investigation file no. 12365 into abduction of Mr T. on 10\u00a0March\u00a02000 by unknown persons dressed in camouflage.<\/span><\/p>\n 14.\u00a0\u00a0On an unspecified date the applicant obtained the following certificate signed by investigator G. of the Grozny Prosecutor’s Office, which was neither on a letterhead nor dated:<\/span><\/p>\n \u201cOn 10 March 2000 officers of the Oktyabrskiy VOVD of Grozny and servicemen of the Federal Forces, during a \u201csweeping\u201d operation [\u0437\u0430\u0447\u0438\u0441\u0442\u043a\u0430<\/span>], apprehended [Mr\u00a0T.] and Magomed Uvaysovich Dzhabayev at their homes and took them to an unknown destination.<\/span><\/p>\n On 27 May 2000 Oktyabrskiy VOVD opened search file no. 017\/00 concerning Magomed Uvaysovich Dzhabayev.<\/span><\/p>\n On 18 December 2000 the Grozny Prosecutor’s Office instituted criminal investigation no. 12365 into [the abduction]. The whereabouts of the above-mentioned persons have not yet been established.\u201d<\/span><\/p>\n 15.\u00a0\u00a0On 25 June 2001 assistant prosecutor B. of the Grozny Prosecutor’s Office issued the applicant with a certificate stating that on 10 March 2000 unidentified persons in camouflage uniforms had apprehended Mr\u00a0Magomed Dzhabayev and taken him to an unknown destination. The Grozny Prosecutor’s Office instituted a criminal case in connection with the events.<\/span><\/p>\n 16.\u00a0\u00a0On 19 July 2001 the applicant was granted victim status in case no.\u00a012365.<\/span><\/p>\n 17.\u00a0\u00a0The applicant provided copies of the documents referred to in paragraphs 11-16 above.<\/span><\/p>\n 2.\u00a0\u00a0Information and documents submitted by the Government<\/span><\/p>\n 18.\u00a0\u00a0The Government submitted the following information on the progress of the investigation.<\/span><\/p>\n 19.\u00a0\u00a0On 20 September 2000 the Prosecutor’s Office of the Chechen Republic received the applicant’s application concerning the disappearance of her husband after he had allegedly been apprehended in the Oktyabrskiy district of Grozny on 10 March 2000 and then held at the Oktyabrskiy VOVD until 12 March 2000.<\/span><\/p>\n 20.\u00a0\u00a0On 30 September 2000 the Prosecutor’s Office of the Chechen Republic forwarded the application to the department of the Ministry of the Interior in the Chechen Republic to seek to organise a search for the applicant’s husband.<\/span><\/p>\n 21.\u00a0\u00a0On 4 November 2000 the Grozny Prosecutor’s Office received Ms\u00a0H.A.’s application, according to which on 10 March 2000 unidentified men dressed in camouflage had apprehended her husband, Mr T., and Mr\u00a0Magomed Dzhabayev and had taken them to the Oktyabrskiy VOVD. At 11 a.m. on 10\u00a0March 2000 A.H. had come to the VOVD where she had also been detained and held until late evening. The next day she had come to the VOVD with warm clothes for her husband. However, they had told her that he had been released with Mr Magomed Dzhabayev on 10\u00a0March 2000. She had applied to the operative brigade in Mozdok, the military commander of the Oktyabrskiy district of Grozny and the military commander of the Chechen Republic. She had been told that her husband’s name was not on the lists of detained persons.<\/span><\/p>\n 22.\u00a0\u00a0On 12 December 2000 the applicant applied to the Karabulak Department of the Interior (GOVD) with a request for a search for her husband and Mr T. The application was sent back to the GOVD three times by the Prosecutor’s Office of the Chechen Republic for lack of information required to place the persons concerned on the wanted list. On 12\u00a0July 2001 it was finally accepted by the Prosecutor’s Office of the Chechen Republic and enclosed in the investigation file.<\/span><\/p>\n 23.\u00a0\u00a0On 17 December 2000 the Oktyabrskiy VOVD handed the search case in respect of Mr T. over to the Grozny prosecutor.<\/span><\/p>\n 24.\u00a0\u00a0According to the Government, on 18 December 2000 the Grozny Prosecutor’s Office instituted criminal investigation no. 12365 into the abduction of the applicant’s husband and Mr T. However, from a copy of the decision submitted to the Court it follows that the investigation was instituted only in respect of Mr T.<\/span><\/p>\n 25.\u00a0\u00a0On 30 December 2001 the investigation file was transmitted to the Prosecutor’s Office of the Chechen Republic.<\/span><\/p>\n 26.\u00a0\u00a0On 17 January 2001 Ms H.A. was granted victim status and questioned. She submitted that on 10 March 2000 at 10 a.m., when she had gone to the market with her daughter, her husband, Mr T., and their neighbour, Mr\u00a0Magomed Dzhabayev, had been apprehended by unidentified persons in camouflage uniforms and taken to the Oktyabrskiy VOVD. She had learned of the events from her neighbours. In the morning of 11\u00a0March\u00a02000 she had gone to the VOVD together with the applicant and her neighbours. In the VOVD she had been told that neither Mr T. nor Mr\u00a0Magomed Dzhabayev had been held there. On 15 May 2000 her relative residing in Nazran had told her that he had learned from a TV programme that her husband had been held in a remand prison in the village of Chernokozovo. However, officials of the remand prison denied that Mr T. had been held there.<\/span><\/p>\n 27.\u00a0\u00a0On 19 July 2001 the applicant was granted victim status and questioned. She submitted that at the end of 1999 she had left for the Republic of Ingushetia. On 11 March 2000 she had learned from her husband’s relatives that he and his neighbour had been apprehended by servicemen and taken to the Oktyabrskiy VOVD. In the evening of 11\u00a0March 2000 Mr D., her husband’s relative, after visiting the Oktyabrskiy VOVD, had stated that her husband had been held there and that he had been shown an \u201cexplanation\u201d written by Mr Magomed Dzhabayev. The next day Mr D. had again gone to the VOVD where he had been told that Mr\u00a0Magomed Dzhabayev had been released. Subsequently officers of the VOVD had refused to confirm the information concerning the detention of Mr Magomed Dzhabayev and Mr T. According to Mr T.’s wife, she knew that they had been apprehended by servicemen near the food distribution centre, beaten, put in a UAZ car and taken away. Mr H.A. herself and the applicant’s neighbour, Ms Z., had witnessed the events. The next day Mr\u00a0H.A. had come to the Oktyabrskiy VOVD where she had been placed in a solitary cell. There she had heard her husband’s voice from the adjacent cell. Her husband had said that Mr\u00a0Magomed Dzhabayev was also in the cell. Then Mr H.A. had been released. Ms Z. had moved and the applicant did not know her whereabouts.<\/span><\/p>\n 28.\u00a0\u00a0In the course of the investigation it appeared impossible to identify Ms Z. and to establish her whereabouts in order to carry out investigative measures with her participation.<\/span><\/p>\n 29.\u00a0\u00a0On 22 July 2001 the investigating authorities sent a request for information to the remand prison in Chernokozovo. According to the response, neither Mr T. nor Mr Magomed Dzhabayev had been held there.<\/span><\/p>\n 30.\u00a0\u00a0On the same date the investigating authorities sent a request for information to the Oktyabrskiy VOVD concerning passport checks possibly conducted on 10 March 2000 in Tobolskaya street in Grozny. According to the response, no passport checks had been conducted. The whereabouts of Mr T. and Mr Magomed Dzhabayev were not established.<\/span><\/p>\n 31.\u00a0\u00a0On 28 July 2001 the head of the Oktyabrskiy VOVD stated that Mr\u00a0Magomed Dzhabayev had not been brought to the VOVD between 10\u00a0and 12 March 2000.<\/span><\/p>\n 32.\u00a0\u00a0On 3 August 2001 the investigating authorities questioned Mr D., who submitted that he held the post of deputy head of the special police unit (OMON) in the Chechen Republic. On 12 March 2000 he had come to the Oktyabrskiy VOVD where he had met high-ranking officers of the VOVD whose names he could not recall. They had shown him an \u201cexplanation\u201d by Mr Magomed Dzhabayev and stated that Mr T. and Mr\u00a0Magomed Dzhabayev had been released on 11 March 2000. On the fourth day after Mr\u00a0Magomed Dzhabayev’s detention he had again come to the VOVD. He had not found the names of Mr\u00a0Magomed Dzhabayev and Mr T. in the VOVD register. At the same time he had been told that Mr Magomed Dzhabayev’s \u201cexplanation\u201d had been lost.<\/span><\/p>\n 33.\u00a0\u00a0On 10 August 2001 a request to conduct operational-search measures aimed at identification of persons involved in the offence were sent to the Oktyabrskiy VOVD and the Oktyabrskiy District Department of the Interior (ROVD). According to the response, measures were being taken.<\/span><\/p>\n 34.\u00a0\u00a0On 26 December 2001 a request was sent to the military commander of the Oktyabrskiy District of Grozny to provide information on Khanty-Mansiysk police officers deployed in Grozny in 2000-2001. A similar request was sent to the Oktyabrskiy VOVD.<\/span><\/p>\n 35.\u00a0\u00a0On 30 December 2001 and 4 January 2002 instructions were sent to the prosecutor of the Khanty-Mansiysk district and the head of the Khanty-Mansiysk police to seize documents relating to the Khanty-Mansiysk police officers commissioned to Grozny in 2000-2001.<\/span><\/p>\n 36.\u00a0\u00a0In January 2002 the investigating authorities questioned Mr Sadykov (Sadykov v. Russia<\/span>, application no. 41840\/02) and Mr K., who during a certain period in spring 2000 were held in one cell in the Oktyabrskiy VOVD.<\/span><\/p>\n 37.\u00a0\u00a0On 8 and 21 January 2002 Mr Sadykov was questioned. He submitted that from 5 March to 24 May 2000 he had been held in the temporary detention centre of the Oktyabrskiy VOVD. On 10 March 2000 two men had been placed in the adjacent cell. At 9 or 10 p.m. on that date a woman had been placed in his cell. She had introduced herself as Ms H.A. and had stated that she had come to inquire after her husband, Mr T. She had stayed in the cell for three or four hours. She had talked to her husband through the wall. He had asked her to bring warm clothes and to look after their daughter. On 11\u00a0March\u00a02000 police officers had entered the adjacent cell and started beating the detainees. In the morning of 12 March 2000 Mr\u00a0Sadykov had been taken out of his cell. When he returned there was nobody in the adjacent cell.<\/span><\/p>\n 38.\u00a0\u00a0On 21 January 2002 Mr K. was questioned. He submitted that from 10 March to 8 May 2000 he had been held in the temporary detention centre of the Oktyabrskiy VOVD. On 10 March 2000 two men had been placed in the adjacent cell. It was forbidden to talk to them. They [he and Mr\u00a0Sadykov<\/span>] had not found out their names. On the same date a woman had been placed in their cell. She had come to the VOVD to hand over her husband’s documents. She had not said anything about herself, apart from that she lived in the village of Okruzhnoy in the Oktyabrskiy district. A man had called her from the adjacent cell and they had realised that it was her husband. Then the woman had been released. On 11\u00a0March\u00a02000 police officers had entered the adjacent cell and had started beating the detainees. When the police officers left they had heard moaning from the cell. In the morning of the next day he and Mr Sadykov had been taken out of their cell. In some five hours they had been placed in the cell where the two men had been previously held. However, they had been no longer there.<\/span><\/p>\n 39.\u00a0\u00a0On 30 January 2002 the applicant was questioned. She confirmed her previous statement.<\/span><\/p>\n 40.\u00a0\u00a0On the same date Ms H.A. was questioned. She submitted that on 10\u00a0March 2000 at 5.30 p.m. she had returned home and had learned that her husband, Mr T., had been apprehended by officers of the Oktyabrskiy VOVD dressed in camouflage uniform and masks. Mr Magomed Dzhabayev had been apprehended with him. She had gone immediately to the Oktyabrskiy VOVD where they had told her to come tomorrow. On 11\u00a0March 2002 she had gone again to the VOVD. They had let her in and then had placed her in a cell with two men. She had shouted to the officer on duty to let her out when she had heard her husband’s voice from the adjacent cell where he had been held with Mr Magomed Dzhabayev. After approximately eight hours she had been released and had returned home. On 12 March 2002 she had been told at the VOVD that her husband had also been released. She did not state who had given her this information.<\/span><\/p>\n 41.\u00a0\u00a0On 9 August 2002 the investigating authorities instructed the deputy prosecutor of the Khanty-Mansiysk District to question fifteen officers of the Khanty-Mansiysk police. Nine officers questioned submitted that the names of Mr Magomed Dzhabayev and Mr T. were unfamiliar to them.<\/span><\/p>\n 42.\u00a0\u00a0On 18 November 2002 requests for information were sent to Departments of the Interior in the North-Caucasus Region. According to the replies, Mr Magomed Dzhabayev had not been charged with any criminal offences.<\/span><\/p>\n 43.\u00a0\u00a0On 25 November 2002 a request to question and seize photographs of four officers of the Khanty-Mansiysk police was sent to the prosecutor of the Khanty-Mansiysk District.<\/span><\/p>\n 44.\u00a0\u00a0On 16 January 2003 requests were sent to the prison authorities of the North Caucasus Region to inform whether Mr Magomed Dzhabayev and Mr T. had been held in custody. The replies were negative.<\/span><\/p>\n 45.\u00a0\u00a0On 27 January 2003 a similar request was sent to the remand prison of the Federal Security Service (FSB) department in the Krasnodar Region and the penitentiary authority in the Stavropol Region. The replies were negative.<\/span><\/p>\n 46.\u00a0\u00a0On the same date a request to establish the place of residence of Mr\u00a0Magomed Dzhabayev’s parents in Urus-Martan and to seize his photograph was sent to the prosecutor of the Urus-Martan District.<\/span><\/p>\n 47.\u00a0\u00a0On 12 February 2002 M., an officer of the Khanty-Mansiysk police, was questioned. He submitted that since February to May 2000 he served as a doctor at the Oktyabrskiy VOVD, where he provided medical service to residents and persons placed in the temporary detention centre. He could not remember whether he had provided medical aid to Mr\u00a0Magomed Dzhabayev and Mr T. or whether they had been held at the detention centre. Mr D. had not applied with questions in respect of their whereabouts or any medical aid provided to them. M. did not know him.<\/span><\/p>\n 48.\u00a0\u00a0From March to May 2003 a number of officers of the Khanty-Mansiysk police were questioned and Mr Magomed Dzhabayev’s photograph was shown to them for identification. All officers questioned stated that the names of Mr Magomed Dzhabayev and Mr T. were unfamiliar to them and that they did not recognise Mr\u00a0Magomed Dzhabayev. The Government did not disclose the names of the officers and designated them by capital letters. Since some letters were similar, it is not clear whether they referred to the same person or different persons. Likewise, it is unclear why their statements could have been relevant. They might have served at the\u00a0Oktyabrskiy VOVD at the relevant time, however, no precise information has been provided in this respect.<\/span><\/p>\n 49.\u00a0\u00a0On unspecified dates photographs of all officers of the Khanty-Mansiysk police commissioned to the Chechen Republic at the relevant time were seized.<\/span><\/p>\n 50.\u00a0\u00a0On 21 February 2007 Mr Sadykov was again questioned. He submitted that in the morning of 10 March 2000, when he had been held at the temporary detention centre of the Oktyabrskiy VOVD, two men had been placed in the adjacent cell. One of them had been wearing a dark coat and the other a dark anorak. On 11 March 2000 at approximately 10 a.m. a woman was placed in the cell where he had been held with Mr K. The woman had said that she had been detained for having a document with the symbol of illegal armed groups. She had been held in the cell for about four hours. From the conversation between the woman and the man in the dark coat which they had had through the cell’s wall Mr Sadykov had understood that they were spouses. The man had asked her why she had come. Then the woman had been released. Later Mr Sadykov met her at the Prosecutor’s Office of the Chechen Republic where she came in connection with her husband’s disappearance. On 11 March 2000 at approximately 11 p.m. to 12\u00a0midnight two men had entered Mr Sadykov’s and Mr K.’s cell and had started beating Mr Sadykov Then they had left, after which Mr Sadykov and Mr K. had heard screaming, moaning and swearing from the adjacent cell. The next morning, on 12 March 2000, he and Mr K. had been taken out of their cell and taken to an adjacent building of the VOVD for approximately six hours.<\/span><\/p>\n 51.\u00a0\u00a0According to the Government, the investigation was repeatedly suspended and resumed due to the necessity to carry out additional investigative measures.<\/span><\/p>\n C.\u00a0\u00a0Proceedings before domestic courts<\/span><\/p>\n 1.\u00a0\u00a0Proceedings to declare Mr Magomed Dzhabayev a missing person<\/span><\/p>\n 52.\u00a0\u00a0On 18 April 2002 the Oktyabrskiy District Court of Grozny examined the applicant’s application and declared Mr\u00a0Magomed Dzhabayev a missing person. The court stated, in particular:<\/span><\/p>\n \u201cThe fact that Mr\u00a0Dzhabayev has been missing from his place of residence for more than a year is corroborated by the evidence in the case. In particular, [the applicant’s] neighbours [Ms Sh.] and [Ms I.] have stated that they have not seen [Mr\u00a0Magomed Dzhabayev] at his place of residence since March 2000 and have no information concerning his whereabouts. However, on 10 March 2000 at around 10 a.m. they saw, in the street not far from their place of residence, Russian servicemen apprehending [Mr\u00a0Magomed Dzhabayev] without giving any explanations. According to the certificate of 25 June 2001 of the Grozny Prosecutor’s Office, on 10 March 2000 [Mr\u00a0Magomed Dzhabayev] had been apprehended and taken to an unknown destination by unidentified persons in camouflage uniform and a criminal case was opened in connection with the events. From a certificate [issued by] an investigator of the Grozny Prosecutor’s Office it follows that on 27 May 2000 the Oktyabskiy VOVD opened [a search file] no. 017\/00 in connection with [Mr\u00a0Magomed Dzhabayev’s] apprehension.<\/span><\/p>\n The court has no reason to doubt the credibility of the witnesses’ account of the facts.\u201d<\/span><\/p>\n 2.\u00a0\u00a0Proceedings for compensation of non-pecuniary damage<\/span><\/p>\n 53.\u00a0\u00a0On an unspecified date the applicant made a claim against the Ministry of Finance for compensation for non-pecuniary damage caused by the abduction of her husband by servicemen of the Russian Armed Forces.<\/span><\/p>\n 54.\u00a0\u00a0On 7 February 2003 the Basmanniy District Court of Moscow refused to accept the claim for examination on account of lack of jurisdiction. The court noted that damage had been caused to the applicant by actions of servicemen and officers of the Office of the Interior located in Chechnya. Since under Article 28 of the Code of Civil Procedure a claim for damages should be brought before a court having territorial jurisdiction at the wrongdoer’s location, the claim should be brought before a competent court in the Chechen Republic. The applicant appealed.<\/span><\/p>\n 55.\u00a0\u00a0On 12 August 2003 the Moscow City Court quashed the ruling of 7\u00a0February 2003 and remitted the claim for a fresh examination. The court noted that the claim had been lodged against the Ministry of Finance, and under Articles 1069, 1070, 1071 of the Civil Code damage caused by unlawful actions of State authorities should be compensated at the expense of the State treasury represented by respective financial authorities.<\/span><\/p>\n 56.\u00a0\u00a0On 29 August 2003 the Basmanniy District Court of Moscow stayed the proceedings concerning the applicant’s claim, because she had not paid the court fees. It ordered the applicant to pay the fees by 1 October 2003. The applicant lodged a complaint against the ruling, stating that the court should have exempted her from paying the fees due to the nature of her claim.<\/span><\/p>\n 57.\u00a0\u00a0On 6 April 2004 the Moscow City Court upheld the ruling. The court held that Article 89 of the Code of Civil Procedure provided for exemption from court fees in respect of claims for pecuniary damage caused by an offence, whereas the applicant had claimed in respect of non-pecuniary damage.<\/span><\/p>\n 58.\u00a0\u00a0On 8 April 2004 the Basmanniy District Court of Moscow dismissed the applicant’s claim for damages. The court noted that, according to a certificate of an investigator of the Grozny Prosecutor’s Office, enclosed in the case file, on 10 March 2000 officers of the Oktyabrskiy VOVD and servicemen of the federal forces, in the course of the counter-terrorist operation in the Chechen Republic, had apprehended Mr Magomed Dzhabayev at his home and taken him to an unknown destination. At the same time on 18 April 2002 the Oktyabrskiy District Court of Grozny established that Mr Magomed Dzhabayev had been apprehended by unidentified persons in camouflage uniform and an investigation was pending into these events. The court found that from the materials available it did not follow that there was any connection between the disappearance of Mr Magomed Dzhabayev and any allegedly unlawful actions by the State authorities.<\/span><\/p>\n D.\u00a0\u00a0The Court’s request for the investigation file<\/span><\/p>\n 59.\u00a0\u00a0Despite a specific request by the Court, the Government did not submit a copy of the investigation file into Mr\u00a0Magomed Dzhabayev’s disappearance. They submitted twenty pages of case file materials containing decisions to institute, suspend and resume the investigation. Ten of the twenty pages are unreadable due to the poor quality of the copies. The Government also submitted nine pages containing copies of court decisions in respect of the applicant’s claims. They 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 witnesses or other participants in the criminal proceedings.<\/span><\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/span><\/p>\n 60.\u00a0\u00a0For a summary of the 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 regarding non-exhaustion of domestic remedies<\/span><\/span><\/p>\n A.\u00a0\u00a0The parties’ submissions<\/span><\/p>\n 61.\u00a0\u00a0The Government contended that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation of the disappearance of Mr Magomed Dzhabayev had not yet been completed.<\/span><\/p>\n 62.\u00a0\u00a0The applicant contested that objection. She stated that the criminal investigation had proved to be ineffective and that their complaints to that effect, including the application to the court, had been futile.<\/span><\/p>\n B.\u00a0\u00a0The Court’s assessment<\/span><\/p>\n 63.\u00a0\u00a0The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia<\/span>, no. 60272\/00, \u00a7\u00a7\u00a073-74, 12\u00a0October 2006).<\/span><\/p>\n 64.\u00a0\u00a0The Court observes that the applicant complained to the law enforcement authorities after the abduction of her husband and that the criminal proceedings have been pending since 18 December 2000. The applicant and the Government dispute the effectiveness of the investigation into the complaint.<\/span><\/p>\n 65.\u00a0\u00a0The Court considers that the Government’s objection raises issues concerning the effectiveness of the criminal investigation which are closely linked to the merits of the applicant’s complaint. Thus, it considers that the objection should be joined to the merits of the complaint and falls to be examined below under the substantive provisions of the Convention.<\/span><\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/span><\/p>\n 66.\u00a0\u00a0The applicant complained under Article 2 of the Convention that her husband had disappeared after having been detained by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:<\/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
\n<\/span><\/p>\n
<\/span><\/p>\n
\n<\/span> Nina Vaji\u0107,
\n<\/span> Anatoly Kovler,
\n<\/span> Khanlar Hajiyev,
\n<\/span> Dean Spielmann,
\n<\/span> Giorgio Malinverni,
\n<\/span> George Nicolaou, judges,<\/span><\/span>
\n<\/span>and S\u00f8ren Nielsen, Section Registrar<\/span><\/span>,<\/span><\/p>\n