Communicated on 19 September 2016
THIRD SECTION
Application no. 4887/14
Alpatu BASHKUYEVA and Malika ARSAYEVA
against Russia
lodged on 17 December 2013
STATEMENT OF FACTS
The applicants are Ms Alpatu Bashkuyeva (“the first applicant”) and Ms Malika Arsayeva (“the second applicant”), who were both born in 1965 and live in Elistanzhi and Grozny respectively. They are represented before the Court by Mr Suleyman Khadzhimuratov, a lawyer practising in Grozny.
The applicants are the mothers of Mr Bayali (also spelled as Bay-Ali) Bashkuyev and Mr Umar Arsayev, who were born in 1987 and 1986 respectively.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Bayali Bashkuyev and Mr Umar Arsayev
During the early hours of 31 March 2004 a group of armed servicemen in camouflage uniforms arrived in the village of Elistanzhi, Chechnya, in armoured personnel carriers (APCs) without registration numbers. The servicemen spoke unaccented Russian and were of Slavic appearance. Between midnight and 1.15 a.m. on that date they made a forced entry into the applicants’ houses, arrested Mr Bashkuyev and Mr Arsayev, put them in the military vehicles, and drove off to an unknown destination.
The whereabouts of Mr Bashkuyev and Mr Arsayev have remained unknown ever since. Their abduction took place in the presence of the applicants and several of their neighbours.
2. Official investigation into the abduction
On 31 March 2004 an officer of the Vedeno district department of the interior (Отдел внутренних дел Веденского района (РОВД)) (hereinafter “the ROVD”) submitted a report stating that at about 2 a.m. on 31 March 2014 a group of military servicemen in two APCs had apprehended Mr Bashkuyev and Mr Arsayev and taken them away. A similar report was submitted to the head of the ROVD on 1 April 2004.
On the same date, 31 March 2004, the crime scene was inspected. Nothing was seized as evidence.
On 1 April 2004 the Vedeno district prosecutor’s office (Прокуратура Веденского района Чеченской Республики) opened criminal case no. 43017 under Article 126 of the Criminal Code (abduction).
On 8 April 2004 the investigators questioned a number of military servicemen. The content of their statements is unclear since the records furnished to the Court are incomplete.
On 16 July 2004 the applicants were granted victim status in the case. They were questioned on unspecified dates and provided the investigators with details of the abduction that were similar to those specified above.
On 1 June 2004 the investigation in respect of the case was suspended for failure to identify the perpetrators. On 24 July 2007 the supervising authorities quashed this decision as unlawful and ordered the investigation to be resumed. Subsequently, the investigation was suspended on 24 August 2007 and 27 January 2011, resumed on 21 December 2010, 10 September 2012 and 16 September 2013, and again suspended on 28 November 2013.
In December 2010 the investigators asked a number of law-enforcement agencies to inform them whether any information existed in respect of the suspected involvement of the applicants’ missing relatives in illegal armed groups. No reply in the affirmative was received.
On 28 January 2011 the investigators, in their summary of investigative measures taken in the case, concluded by stating, in particular, that grounds existed for believing that the abduction had been perpetrated by military servicemen and that the criminal case should therefore be transferred to a military prosecutor’s office for further investigation.
On several occasions between 2009 and 2013 the applicants complained to various law-enforcement agencies about the abduction and the inefficiency of the ensuing investigation. In reply they received letters stating either that their complaint had been forwarded to yet another law‑enforcement agency for further processing or that operational search activities were still in progress in respect of the case.
It appears that the investigation is still pending.
3. Proceedings before domestic courts
On an unspecified date in September 2013 the applicants lodged a complaint with the Vedeno District Court challenging the investigators’ failure to take basic steps.
On 18 September 2013 the court rejected the complaint, having found that the investigators had earlier resumed the criminal investigation. In a separate ruling adopted on the same date the court pointed to certain procedural flaws in the criminal case.
On unspecified dates in 2015 the applicants lodged claims against the Ministry of Finance of Russia for compensation for non-pecuniary damage sustained as a result of the abduction.
On 12 May 2015 the court, in decisions adopted separately with respect to each of the applicants, dismissed the claims as unfounded. On 7 and 16 July 2015 the Chechnya Supreme Court upheld the above decisions on appeal.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of the right to life of Mr Bayali Bashkuyev and Mr Umar Arsayev and submit that the circumstances of their 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 due to the indifference demonstrated by the authorities in respect of the abduction and subsequent disappearance of their close relatives and the State’s failure to conduct an effective investigation into the incident.
The applicants submit that the unacknowledged detention of their relatives violates all of the guarantees under 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 complaints under Articles 2 and 5 of the Convention.
QUESTIONS TO THE PARTIES
1. 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 their 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 their relatives 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 applicants’ relatives’ abduction and ensuing disappearance (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, §§ 181-84, ECHR 2009, and 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 the applicants’ missing relatives?
(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 relatives 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 relatives and the authorities’ alleged indifference in that respect and their alleged failure to conduct an effective investigation into their 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 the applicants’ missing relatives deprived of liberty within the meaning of Article 5 § 1 of the Convention? If so, was such a 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, 3 and 5 of the Convention, 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 their missing relatives 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 disappearance of their missing relatives, 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.
Full & Egal Universal Law Academy