CCPR/C/125/D/2524/2015
For example, after his disappearance Mr. Magomadov’s mother had a stroke, was
bedridden for 7 years and died after 10 years of waiting for news about her son. The author
herself suffered from the indifference of the State party authorities to the fate of her brother.
The occurrences of killings, torture and mistreatment at the hands of the law enforcement
agencies in Russia are well known.
5.5
As for the admissibility of the communication, the author submits that the remedies
offered under the domestic procedures are ineffective. That can be proven by the fact that
after so many years, the investigation has not yet been completed. Moreover, the
Committee has long held that the exhaustion requirement for domestic remedies does not
apply if the procedures are unreasonably prolonged. The author does not have any means of
forcing the authorities to conduct a thorough investigation into the disappearance and filing
a cassation appeal or a supervisory appeal would not remedy the situation.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claims contained in a communication, the Human Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
6.2
The Committee has ascertained, as required under article 5, paragraph 2 (a), of the
Optional Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3
The Committee takes note of the State party’s argument that the author has failed to
exhaust all available domestic remedies by not filing cassation and supervisory review
appeals regarding the decisions dated 9 September and 19 October 2011 (paras. 4.1, 4.2
above). The Committee notes that the cassation and the supervisory review procedures
concern the revision, on points of law only, of court decisions that have entered into force.
The decisions on whether to refer a case for hearing by the cassation court or a supervisory
appeals court are discretionary in nature, do not have a time limit and are made by one
single judge. Those characteristics lead the Committee to believe that such cassation and
supervisory review requests contain elements of an extraordinary remedy. In accordance
with the Committee’s long-standing jurisprudence, therefore, the State party must show that
there is a reasonable prospect that such a procedure would provide an effective remedy in
the circumstances of the case. 10 In the absence of any clarification from the State party on
the effectiveness of the cassation and supervisory review procedures in cases similar to the
present one, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional
Protocol from examining the present communication for purposes of admissibility.
6.4
In the Committee’s view, the author has sufficiently substantiated, for the purposes
of admissibility, her claims of violations of her rights under article 7 and her brother’s
rights under articles 6 (1) and 9 (1) and (5) of the Covenant. The Committee therefore
declares them admissible and proceeds with the consideration of the merits. The Committee
notes that the claims as presented by the author also seem to raise issues under article 6 (1)
read in conjunction with article 2 (3).
Consideration of the merits
7.1
The Committee has considered the present communication in the light of all the
information submitted by the parties, in accordance with article 5 (1) of the Optional
Protocol.
7.2
The Committee first notes the author’s claim that on 9 January 1995, her brother was
arrested and detained in the city of Grozny in the Chechen Republic, and was allegedly
killed at the hands of Russian military forces (para. 3.1 above). To prove her claims, the
Committee further notes several documents presented by the author showing that Mr.
10
See Schumilin v. Belarus (CCPR/C/105/D/1784/2008), para. 8.3; and Dorofeev v. the Russian
Federation (CCPR/C/111/D/2041/2011).
5