Communicated on 5 April 2017
THIRD SECTION
Application no. 49112/15
Kaypa ALIYEVA and Others
against Russia
lodged on 15 September 2015
STATEMENT OF FACTS
The applicants are:
(1) Ms Kaypa Aliyeva, who was born in 1965;
(2) Ms Kheda Aliyeva, who was born in 1999;
(3) Ms Tanzila Aliyeva, who was born in 2001; and
(4) Mr Vakha Aliyev, who was born in 1986.
The first, second and third applicants live in Alkhazurovo, Chechnya; they are respectively the sister and daughters of Mr Zayndi (in the documents submitted also spelled Zendi) Aliyev, who was born in 1971. The fourth applicant lives in Grozny and is the nephew of Mr Zayndi Aliyev.
The applicants are represented before the Court by the non-governmental organisation (NGO) Materi Chechni, practising in Chechnya.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Zayndi Aliyev
At about 2 p.m. on 30 July 2002 Mr Aliyev was at the bus stop located at the intersection of Revolutsii Avenue and Chernyshevskogo Street in Grozny when a group of about twenty armed servicemen in military camouflage uniforms arrived in a Gazel minivan, a Barguzin vehicle and a Zhiguli car with registration numbers C 671 XH, 971, and X 194 XH respectively. The servicemen spoke unaccented Russian, and some of them were in balaclavas. They opened fire and shot Mr Aliyev in the leg, then arrested him, put him into one of the vehicles, and drove off to an unknown location.
The whereabouts of Mr Aliyev have remained unknown ever since. His abduction took place in the presence of numerous witnesses – passers-by and customers at nearby cafés.
According to the applicants, at least ten other Grozny residents were abducted at the same time and place under similar circumstances (see also Ozdamirova and Bakriyeva v. Russia no. 59117/11; Ismailovy v. Russia no. 2664/12; Magomadova v. Russia 67274/13; and Sambiyeva and Eskiyev v. Russia no. 49097/15).
2. Official investigation into the abduction
On 9 August 2002 the wife of Mr Aliyev, E.E., informed the authorities of the abduction and asked for assistance in the search for her husband.
On 19 August 2002 the Grozny town prosecutor’s office (Прокуратура г. Грозный Чеченской Республики) opened criminal case no. 50130 under Article 126 of the Criminal Code (abduction).
On 19 December 2002 the investigation in the case was suspended for failure to identify the perpetrators. The investigation was resumed on 22 September 2003 and suspended on 22 October 2003. Subsequently, the investigation was resumed on 05 May 2014, then suspended on 5 June 2014 and resumed again on 4 February 2015.
On 26 May 2014 the first applicant was granted victim status in the case and questioned. Her statements to the investigators were similar to her account submitted to the Court.
On 7 July 2014 the first applicant asked the investigators to grant her access to the criminal case material. The outcome of that request is unknown.
Between 14 and 17 July 2014 the NGO Materi Chechni asked a number of law-enforcement agencies and state officials to provide assistance in the search for Mr Aliyev. In reply, they received letters informing them that their request had been transferred to yet another law-enforcement agency for further examination.
Between 4 and 8 August 2015 the investigators questioned eyewitnesses to the abduction – Kh.Y., A.T. and T.T. Their statements were similar to those of the applicants.
It appears that the investigation is still ongoing.
3. Proceedings against the investigators
On 22 January 2015, before the Zavodskoy District Court of Grozny (Заводской районный суд г. Грозный), the first applicant challenged the investigators’ decision of 5 June 2014 to suspend the proceedings and their failure to take basic investigative steps.
On 24 February 2015 the court rejected the complaint, having found that on 4 February 2015 the investigators had already resumed the proceedings. On 1 April 2015 the Chechnya Supreme Court (Верховный Суд Чеченской Республики) dismissed the first applicant’s complaint on appeal.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of Mr Zayndi Aliyev’s right to life, and submit that the circumstances of his abduction indicate that the perpetrators were State agents. The applicants further complain that no effective investigation into the matter has been conducted.
Invoking Article 3 of the Convention, the applicants complain that they are suffering severe mental distress due to the indifference demonstrated by the authorities in respect of the abduction and subsequent disappearance of their close relative and the State’s failure to conduct an effective investigation into the incident.
The applicants submit that the unacknowledged detention of their relative violates all the guarantees of Article 5 of the Convention.
The applicants complain under Article 13 of the Convention of the lack of an effective remedy in respect of their complaint under Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? In particular, were there “excessive or unexplained delays” on the applicants’ part in submitting their complaints to the Court after the abduction of their relative, and have there been considerable lapses of time or significant delays and lulls in the investigative activity, which could have an impact on the application of the six-month time-limit (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 162, 165 and 166, ECHR 2009)? The applicants are invited to provide explanations for the delay in lodging their application with the Court, as well as copies of documents reflecting their correspondence with the authorities in connection with the abduction of their relative.
2. Having regard to
‑ the Court’s numerous previous judgments in which violations of Article 2 of the Convention were found in respect of both the disappearances of applicants’ relatives as a result of detention by unidentified members of the security forces, and the failure to conduct an effective investigation (see, among recent examples, Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, 18 December 2012, and Mikiyeva and Others v. Russia, nos. 61536/08 and 4 others, 30 January 2014); and
‑ the similarity of the present application to the cases cited above, as can be seen from the applicants’ submissions and the interim results of the investigation:
(a) Have the applicants made out a prima facie case that their relative was arrested by State servicemen in the course of a security operation?
(b) If so, can the burden of proof be shifted to the Government to provide a satisfactory and convincing explanation of the circumstances of the applicants’ relative’s abduction and ensuing disappearance (see, mutatis mutandis, Varnava and Others (cited above)? Are the Government in a position to rebut the applicants’ submissions that State agents were involved in the abduction by submitting documents which are in their exclusive possession, or by providing by other means a satisfactory and convincing explanation of the event?
(c) Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of the applicants’ missing relative?
3. Having regard to the procedural protection of the right to life under Article 2 of the Convention (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the investigation conducted by the domestic authorities into the disappearance of the applicants’ missing relative sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?
4. Has the applicants’ mental suffering in connection with the disappearance of their close relative and the authorities’ alleged indifference in that respect and alleged failure to conduct an effective investigation into the disappearance been sufficiently serious to amount to inhuman and degrading treatment, within the meaning of Article 3 of the Convention? If so, has there been a breach of Article 3 of the Convention in respect of the applicants?
5. Was the applicants’ missing relative deprived of his liberty within the meaning of Article 5 § 1 of the Convention? If so, was such a deprivation compatible with the guarantees of Article 5 §§ 1-5 of the Convention?
6. Did the applicants have at their disposal effective domestic remedies in respect of their complaint under Article 2 of the Convention, as required by Article 13 of the Convention?
7. In accordance with the provisions of Article 38 of the Convention, the Government are requested to provide the following information:
(a) any information, supported by relevant documents, which is capable of rebutting the applicants’ allegations that their missing relative was abducted by State servicemen;
and, in any event,
(b) a complete list of all investigative actions taken in connection with the applicants’ complaints regarding the disappearance of their missing relative, in chronological order, indicating dates and the authorities involved, as well as a brief summary of the findings;
as well as:
(c) copies of those documents in the investigation file that are necessary for establishing the factual circumstances of the allegations and evaluating the effectiveness of the criminal investigation.
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