Communicated on 5 September 2016
THIRD SECTION
Application no. 60905/14
Gazali IBAKOV and others
against Russia
lodged on 18 August 2014
STATEMENT OF FACTS
The applicants are:
1) Mr Gazali Ibakov, who was born in 1952;
2) Mr Umar Ibakov, who was born in 1984;
3) Ms Razyat (also spelled as Razet) Ibakova, who was born in 1950;
4) Mr Alikhan Ibakov, who was born in 1979;
5) Ms Aminat Ibakova, who was born in 1987; and
6) Ms Khulimat Ibakova, who was born in 1993.
The first applicant lives in Naurskaya, Chechnya; he is the brother of Mr Bukhara (also spelled as Bukhar) Ibakov, who was born in 1944. The third applicant lives in Oktyabrskoye, Chechnya; she is the wife of Mr Bukhara Ibakov. The second, fourth, fifth and sixth applicants also live in Oktyabrskoye; they are his children.
The applicants are represented before the Court by Materi Chechni, an NGO based 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 the second applicant and Mr Bukhara Ibakov
At about 2 a.m. on 23 July 2002 Mr Ibakov and his family members, including the second applicant, were at home at 21 Komsomolskaya Street in Oktyabrskoye when a group of twenty to thirty armed servicemen in camouflage uniforms broke into their house. The servicemen spoke unaccented Russian; those of them who were not wearing balaclavas were of Slavic appearance. They searched the premises, then forced Mr Ibakov and the second applicant outside, put them into an UAZ minivan (tabletka) without registration numbers and drove off to an unknown destination.
On 26 July 2002 the second applicant was released on the outskirts of the village of Pravoberezhnoye, Chechnya, and returned home. He was subsequently questioned by the investigators about the circumstances of the abduction (see below).
The whereabouts of Mr Ibakov have remained unknown ever since.
2. Official investigation into the abduction
On 29 July 2002 the head of the Oktyabrskoye local administration reported the abduction to the Chechnya prosecutor and several other law‑enforcement agencies in Chechnya.
On 5 August 2002 the third applicant complained to the authorities about the abduction and asked for assistance in the search for her husband.
On 11 September 2002 the third applicant was interviewed. Her statement about the circumstances of the abduction was similar to the account submitted by the applicants to the Court.
On the same date the applicants’ neighbour, Ms Z.A., was interviewed. She submitted that at night on 22 July 2002 she had seen an UAZ minivan (tabletka) and a group of armed servicemen in camouflage uniforms and balaclavas in the courtyard of the Ibakovs’ family house.
On 23 September 2002 the Grozny district prosecutor’s office (Прокуратура Грозненского района Чеченской Республики) opened criminal case no. 56145 under Article 126 of the Criminal Code (abduction).
On the same date the investigators questioned the first applicant and a witness Mr A.S. Their statements regarding the circumstances of the abduction were similar to the account of the events recounted above. Mr A.S. additionally stated that shortly after the abduction he had gone to the Russian military base in Khankala and spoken to servicemen with whom he was acquainted. They told him that Mr Ibakov and the second applicant had been arrested by agents of a military counterintelligence service who had subsequently transferred them either to the Grozny district prosecutor’s office or to the Grozny district department of the interior (РОВД Грозненского района).
On 23 November 2002 the investigation was suspended for failure to identify the perpetrators. Subsequently, it was resumed on an unspecified date and suspended on 18 January 2007, then resumed on 31 July 2013, suspended on 17 August 2013 and again resumed on 4 April 2014.
On 5 January 2007 and on 7 August 2013 the investigators questioned the fifth and the third applicants respectively. Their statements to the investigators were similar to the account of the events that they provided to the Court.
On 6 January 2007 and again on 5 August 2011 the investigators questioned the second applicant. He submitted that at about 2 a.m. on 23 July 2002 a group of about twenty armed servicemen in camouflage uniforms had broken into his house and arrested him and his father, Mr Ibakov. The servicemen had been of Slavic appearance and spoken unaccented Russian. They had forced them into an UAZ vehicle, put plastic bags over their heads and driven off. The ride had lasted approximately two hours. After they had arrived at an unknown destination, the servicemen had separated him from his father and put him in a basement. On several occasions he had been questioned about the whereabouts of his brother, Mr Y.I., who was on a wanted list at that time, and about whether he was in possession of firearms. After three days servicemen had taken him out of the basement and released him somewhere on the outskirts of the village of Pravoberezhnoye.
In April 2011 the NGO Materi Chechni asked a number of state officials and law enforcement agencies for assistance in the search for Mr Ibakov. In reply it received letters stating that the request had been forwarded to another law enforcement agency for processing or that operational search activities were still in progress in respect of the criminal case.
On 27 May 2013 the investigators again questioned the first applicant, who reiterated his previous statement and submitted additionally that at the time of the abduction Mr Ibakov’s son, Mr Y.I., had been on a wanted list on account of his alleged involvement in illegal armed groups operating in Chechnya.
On 7 August 2013 the investigators inspected the crime scene. No evidence was collected.
On 12 August 2013 the investigators questioned Z.A. She reiterated her previous statement.
It appears that the investigation is still pending.
3. Proceedings against the investigators
On 17 April 2014 the first applicant lodged a complaint before the Grozny District Court challenging the decision of 17 August 2013 to suspend the investigation.
On 4 April 2014 the court rejected the complaint having found that on 3 April 2014 the investigators had already quashed the decision at issue and resumed the proceedings. On 29 April 2014 the Chechnya Supreme Court upheld this decision on appeal.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of the right to life of Mr Ibakov 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.
The applicants complain, invoking Article 3 of the Convention, that they are suffering severe mental distress because of 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 Mr Ibakov and that of the second applicant violates all the guarantees under Article 5 of the Convention.
The applicants complain under Article 13 of the Convention of a lack of an effective remedy in respect of their complaints under Articles 2 and 5 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 on the part of the applicants “excessive or unexplained delays” in submitting their complaints to the Court after the abduction, and have there been considerable lapses of time or significant delays and lulls in investigative activity which could have an impact on the application of the six-month limit (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §§ 162, 165 and 166, ECHR 2009 and Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, ECHR 31 May 2016)? 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 the 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, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012, and Mikiyeva and Others v. Russia, nos. 61536/08, 6647/09, 6659/09, 63535/10 and 15695/11, 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 Mr Bukhara Ibakov and the second applicant were arrested by State servicemen in the course of a security operation?
(b) If so, can the burden of proof be shifted to the Government in respect of providing a satisfactory and convincing explanation of the circumstances of the abduction of the second applicant and Mr Bukhara Ibakov and of the subsequent disappearance of the latter (see, mutatis mutandis, Varnava and Others, cited above, §§ 181-84; Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII)? 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 Mr Bukhara Ibakov?
(d) 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?
2. Has the applicants’ mental suffering in connection with the disappearance of their close relative and the authorities’ alleged indifference in that respect and their alleged failure to conduct an effective investigation into the said disappearance been sufficiently serious as 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?
3. Were Mr Bukhara Ibakov and the second applicant deprived of liberty within the meaning of Article 5 § 1 of the Convention? If so, was the said deprivation compatible with the guarantees under Article 5 §§ 1-5 of the Convention?
4. Did the applicants have at their disposal effective domestic remedies in respect of their complaints under Articles 2 and 5 as required by Article 13 of the Convention?
5. 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 Mr Bukhara Ibakov and the second applicant were abducted by State servicemen;
and, in any event,
(b) a complete list (in chronological order) of all investigative steps taken in connection with the applicants’ complaints about the abduction, 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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