CASE OF INDIRBAYEVA AND OTHERS v. RUSSIA

THIRD SECTION

CASE OF INDIRBAYEVA AND OTHERS v. RUSSIA

(Application no. 54931/18)

JUDGMENT
 

STRASBOURG

9 March 2021

This judgment is final but it may be subject to editorial revision.

In the case of Indirbayeva and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 54931/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Russian nationals listed below (“the applicants”), on 8 November 2018;

the parties’ observations;

Having deliberated in private on 9 February 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the abduction and subsequent disappearance of the applicants’ relative in Khasavyurt, Dagestan in 2009 and the ineffectiveness of the ensuing investigation into the matter.

THE FACTS

2.  The applicants are:

1)  Ms Zaira Indirbayeva, who was born in 1986;

2)  Mr Akhmad Chaplayev, who was born in 2005;

3)  Ms Fatima Chaplayeva, who was born in 2006; and

4)  Ms Khava Chaplayeva, who was born in 2010.

The first applicant is the wife of Mr Timur Chaplayev, who was born in 1982; the other applicants are his children. They live in Khasavyurt, Dagestan. The applicants were represented by lawyers from Materi Chechni, an NGO practising in Grozny.

3.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.Abduction of Mr Timur Chaplayev

5.  At the material time the applicants’ relative Mr Timur Chaplayev owned and worked in a mobile phone repair shop in Khasavyurt. Mr Abu B. also worked there.

6.  In the evening on 1 September 2009 a group of five to six unidentified armed men arrived in the area close to the shop where the two men worked. They drove in two civilian VAZ-2110 cars with tinted windows, one of which was a silver-coloured Priora model. One of the cars had an official licence plate containing the digits 95, indicating that the car had been registered in the Chechen Republic. Having found Mr Chaplayev’s car, which was parked nearby in Kirova Street, they waited in the vicinity for Mr Chaplayev and Mr Abu B.

7.  At about 7.30 p.m., when Mr Chaplayev and Mr Abu B. left their shop and went to Mr Chaplayev’s car, the perpetrators attacked the two men and beat Mr Chaplayev and Mr Abu B. unconscious. After that they put both men into their cars and drove off, leaving Mr Chaplayev’s car behind.

8.  A few unidentified local residents witnessed the abduction and called the police after the abductors had left. They informed the police about the incident and provided a description of the abductors’ vehicles, mentioning their official registration plates from Chechnya.Official investigation into the abductionMain steps taken by the investigation

9.  On 2 September 2009 Mr Chaplayev’s mother, Ms R.D., lodged a complaint with the police about his abduction. Her description of the circumstances of the abduction was similar to the submission made by the applicants before the Court. She stated that according to unidentified local residents who had witnessed the abduction, the perpetrators had worn camouflage uniforms and been armed with pistols.

10.  On 7 September 2009 Ms R.D. lodged an abduction complaint with the Khasavyurt prosecutor, in which she stated that her son and Mr Abu B. could have been abducted by individuals from Chechnya.

11.  On 8 September 2009 the investigators of the Khasavyurt Investigations Department opened criminal case no. 910347 under Article 126 § 2 (a) of the Criminal Code (aggravated abduction).

12.  On 9 September 2009 Ms R.D. wrote to the Russian Prosecutor General and the Head of the Russian Investigative Committee asking for assistance in the search for her abducted son. She stated that she had learnt from the eyewitnesses that the abductors had been a group of five persons in civilian clothing, and that they had been armed with pistols. The abductors had spoken Chechen and driven in cars with Chechen registration numbers. She requested that the mobile telephone which her son had been carrying at the time of his abduction be located using mobile phone tower connection signals, which would enable his physical location to be established. No reply was given to that request.

13.  On 20 September 2009 the investigators questioned a local resident, Mr S.S., who lived next to the crime scene and had witnessed the abduction. His statement concerning the circumstances of the abduction was similar to the applicants’ submission before the Court. In addition, he stated that he had seen three of the abductors kicking and beating two men who were on the ground, and then placing one of the men in the boot of a car and the other one in the back seat of another. He had heard the perpetrators speaking Chechen, and they had been armed with pistols and been in civilian clothing.

14.  On 25 September 2009 the investigators questioned Ms R.D., who reaffirmed her description of the circumstances of the abduction as related in her complaints of 2 and 9 September 2009 (see paragraphs 9 and 12 above).

15.  On 8 November 2009 the investigation in the criminal case was suspended for failure to identify the perpetrators. Neither the applicants nor Ms R.D. were informed.

16.  On 16 July 2014 the investigation was resumed following an order by the Khasavyurt prosecutor, who stated that the suspension had been unlawful and premature as the investigators had failed to take such basic steps as verifying whether the abducted men had been arrested by law-enforcement agents.

17.  On 12 August 2014 the investigators granted Ms R.D. victim status in the criminal case and questioned her. She reaffirmed the statements she had previously given concerning the circumstances of the abduction. In addition, she stated that at one point she and her relatives had been contacted by unidentified persons who had demanded a ransom for the release of Mr Chaplayev. She refused to provide any further information on the matter, stating that the persons demanding the ransom were not the perpetrators of her son’s abduction in 2009.

18.  On 13 August 2014 the investigators requested and received court authorisation to obtain information concerning the telephone calls made to and from Mr Chaplayev’s mobile telephone between 20 August and 30 September 2009. No information was obtained as a result which was pertinent to the identification of the perpetrators or to establishing the whereabouts of Mr Chaplayev, as no information concerning the mobile phone tower locations used for those telephone calls was requested, despite Ms R.D.’s request to that end, made four years earlier (see paragraph 12 above).

19.  On 17 August 2014 the investigation was again suspended for failure to identify the perpetrators, and then on 10 June 2015 it was resumed again. From the documents submitted it transpires that, among other steps taken, the investigators repeatedly requested information from the Khasavyurt Federal Security Service and the Centre against Extremism of the Dagestan Ministry of the Interior about the possible involvement of Mr Chaplayev and Mr A.B. in illegal armed groups. No replies were given to those requests.

20.  On 19 February 2016 the first applicant was granted victim status in the criminal case upon her request. On 25 February 2016 she requested permission to access the contents of the case file in the criminal case. Her request was granted on 26 February 2016 and then on the same day the investigation was again suspended.

21.  The documents submitted show that between July 2014 and May 2018 the investigation in the criminal case was suspended and then resumed on several occasions, owing to criticism from the investigators’ superiors of the investigators’ failure to take basic steps. The investigators were given instructions to take those steps.

22.  On 30 November 2018 the investigators yet again questioned Ms R.D., who reaffirmed the statements she had previously given.

23.  On 15 January 2019 the investigators questioned two police officers from the Khasavyurt town police station, who stated that because of the passage of time they could not recall any information pertinent to the abduction, except for the rumour that the abducted men had been taken to Chechnya.

24.  On 5 February 2019 the investigators examined the crime scene. No evidence was collected.

25.  On 15 July 2019 the investigation was resumed again, following criticism from the investigators’ superiors of the investigators’ failure to take basic steps. The investigation is still pending. Neither the whereabouts of Mr Chaplayev nor the identities of the perpetrators have been established to date.Proceedings against the investigators

26.  On 14 June 2017 the first applicant requested the investigators to resume the investigation following its suspension on 11 September 2016 and to provide her with copies of documents from the investigation file, but to no avail. On 10 October 2017 she lodged a complaint with the Khasavyurt Town Court about the investigators’ inaction, stating, among other things, that the investigators had not been providing her with information on the progress of the investigation as, according to them, the investigation file had been lost.

27.  On 20 February 2018 the town court discontinued its examination of the first applicant’s complaint as the suspension of 11 September 2016 had been overruled. At the same time, it issued a special ruling in respect of the investigators, finding that they had failed to take the steps ordered by their superiors on 11 August 2016 and failed to provide the applicant with basic information on the progress in the investigation.

28.  On 28 February 2018 the applicant appealed against the above‑mentioned decision stating that the suspension of 11 September 2016 had not been overruled until after she had complained to the town court. On 8 May 2018 the Supreme Court of the Republic of Dagestan dismissed her appeal as unfounded.

RELEVANT LEGAL FRAMEWORK

29.  For a summary of the relevant domestic law and international materials, see Turluyeva v. Russia (no. 63638/09, §§ 56-74, 20 June 2013).

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

30.  The applicants alleged that their relative Mr Timur Chaplayev had been abducted by State agents and that the authorities had failed to effectively investigate the matter, contrary to Article 2 of the Convention, which reads as follows:

“1.  Everyone’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.

2.  Deprivation 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:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”AdmissibilityThe parties’ submissions

31.  The Government submitted that the application should be dismissed as lodged out of time. In their submission, the applicants, who had taken a passive stance in the proceedings, should have realised at an earlier date that the investigation into the abduction was unproductive.

32.  The applicants stated that they had lodged their application without undue delay.The Court’s assessment

33.  A summary of the principles concerning compliance with the six‑month rule in disappearance cases may be found in Sultygov and Others v. Russia (nos. 42575/07 and 11 others, §§ 369‑74, 9 October 2014).

34.  The documents submitted show that the domestic investigation in the criminal case concerning the disappearance of Mr Chaplayev had been ongoing for about nine years prior to the lodging of the application with the Court. The documents submitted show that the applicants and their relatives complained to the authorities shortly after Mr Chaplayev’s disappearance, they provided detailed statements to the investigators and took other steps, such as making complaints to the investigators’ superiors and applications to the domestic courts in an attempt to expedite the proceedings, in spite of the lack of information from the investigators on the progress in the investigation (see paragraphs 9, 9, 15, 26 and 28 above).

35.  Considering the overall time frame of the lodging of the application with the Court (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 165, ECHR 2009) and the fact of the applicants’ communication with the authorities about the investigators’ failure to provide them with information in a proper manner, the Court does not find that the lack of progress in the investigation of the disappearance of their husband and father should be held against the applicants, or interpreted as a failure on their part to demonstrate the proper diligence or to comply with the six‑month requirement (see, by contrast, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, 31 May 2016).

36.  In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.

37.  The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsAlleged violation of the substantive aspect of Article 2 of the Convention

38.  A summary of the principles concerning the assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents may be found in Sultygov and Others (cited above, §§ 393-96).

39.  The Court has already found the Russian authorities responsible for disappearances of civilians perpetrated in Dagestan (see, for example, Umarovy v. Russia, no. 2546/08, 12 June 2012, and Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013). In doing so, it has taken into account the witness statements and other documents attesting to the presence of security or law-enforcement personnel in the area concerned at the relevant time.

40.  However, in the present case the circumstances in which the events occurred cannot warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative, for the following reasons. As regards the general background, the events complained of took place in September 2009, not in Chechnya, but in Dagestan, and there was neither a curfew in place nor any restrictions on driving in civilian vehicles. Furthermore, from the documents submitted it appears that the applicants’ version of the events was based on the statements of the sole witness, Mr S.S., according to whom the perpetrators had been in civilian clothing and driven in ordinary cars. In addition, the Court notes that Mr Chaplayev’s mother, Ms R.D., told the investigators that she had received ransom demands, but refused to specify whom she had suspected or the nature of the demands received (see paragraph 17 above). In such a situation, the Court has little evidence from which to draw the conclusions of State involvement, as the factual circumstances of the incident as presented by the applicants do not include any evidence corroborating this to a decisive extent.

41.  Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a security operation was carried out in respect of Mr Chaplayev.

42.  To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Chaplayev; nor does the Court consider that the burden of proof can be entirely shifted to the Government (see also Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012; Mutayeva and Ismailova v. Russia, no. 33539/12, § 51, 21 June 2016; and Salikhova and Magomedova v. Russia, no. 63689/13, § 70, 26 January 2016).

43.  As noted above, the domestic investigation failed to produce any tangible results as to the identities of the persons responsible for the alleged abduction of Mr Chaplayev. The applicants have not submitted persuasive evidence to support their allegations that State agents were the perpetrators. The Court has already found above that, in the absence of unequivocal evidence, it is unable to find that State agents were implicated in Mr Chaplayev’s disappearance (see paragraph 42 above). Neither has it established that Mr Chaplayev was deprived of his life by State agents.

44.  In such circumstances the Court finds no violation of the substantive limb of Article 2 of the Convention.Alleged violation of the procedural aspect of Article 2 of the Convention

45.  For a summary of the general principles reflecting the Court’s approach to the examination of allegations of a violation of the procedural aspect of Article 2 of the Convention, see Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015) and Mazepa and Others v. Russia (no. 15086/07, §§ 69-70 and 74, 17 July 2018).

46.  The Court notes that a number of the most basic and urgent steps were not taken from the beginning of the investigation. For instance, the crime-scene examination was carried out nine and half years after the incident (see paragraph 24 above). Moreover, none of the local residents, save for Mr S.S., were questioned about the abduction, and Mr S.S. was not questioned until almost three weeks after the incident (see paragraph 13 above). No steps were taken to request and obtain the wider mobile phone information concerning the mobile phone tower locations which could have received the signal from Mr Chaplayev’s mobile telephone (see paragraphs 12 and 18 above). Such significant delays in taking those basic steps show the investigation’s inability to take timely and effective steps to have the crime resolved, as is confirmed by the criticism from the investigators’ superiors, who had pointed out those failures (see 16, 21 and 25 above). The documents submitted also show that the investigators failed to provide the applicant with information on the progress in the investigation (see paragraphs 15 and 26 above).

47.  Given the shortcomings of the investigation as indicated above, and that the Government did not provide any comments on the matter, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Mr Timur Chaplayev.

48.  There has therefore been a violation of Article 2 of the Convention in its procedural aspect.ALLEGED VIOLATIONS OF ARTICLES 3, 5 and 13 OF THE CONVENTION

49.  The applicants complained of violations of Articles 3 and 5 of the Convention on account of the mental suffering caused by the disappearance of their close relative, who they claimed had been unlawfully detained. They also argued that, contrary to Article 13 of the Convention, they had no available domestic remedies against the violations alleged under Articles 2, 3 and 5. Articles 3, 5 and 13 of the Convention read, in so far as relevant:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

50.  The Government did not comment on either the admissibility or merits of these complaints.

51.  The applicants reiterated their submissions.

52.  The Court has not found that the State bears responsibility for the disappearance of Mr Timur Chaplayev (see paragraph 44 above). Accordingly, in such circumstances, it finds that the situation does not disclose a violation of Articles 3 or 5, as alleged by the applicants (see Dobriyeva and Others v. Russia, no. 18407/10, § 88, 19 December 2013). These complaints must, therefore, be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

53.  As to the applicants’ complaint under Article 13, the Court reiterates its findings above in respect of Articles 3 and 5 of the Convention. The applicants have no arguable claim in respect of those complaints. Thus, the complaint under Article 13 taken in conjunction with Articles 3 and 5 is likewise manifestly ill‑founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

54.  As regards the reference to Article 13 taken in conjunction with Article 2 of the Convention, the Court observes that the relevant complaint has already been examined in the context of the procedural obligation under Article 2 (see paragraph 48 above). Having regard to the finding of a violation of Article 2 in its procedural aspect, the Court considers that although this complaint is admissible, there is no need for a separate examination of it on its merits (see Dobriyeva and Others, cited above, § 89).APPLICATION OF ARTICLE 41 OF THE CONVENTION

55.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

56.  The applicants claimed jointly 98,149 euros (EUR) in compensation for pecuniary damage caused by the loss of financial support from Mr Timur Chaplayev, who had been the breadwinner of their family.

57.  The Government submitted that the claim should be rejected as unsubstantiated.

58.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

59.  The applicants claimed jointly EUR 100,000 in compensation for non‑pecuniary damage.

60.  The Government left the amount of compensation to the Court’s discretion.

61.  The Court reiterates that whenever it finds a violation of the Convention, it may accept that the applicants have suffered non-pecuniary damage that cannot be compensated for solely by the finding of a violation, and make a financial award. Having regard to the principle set out above, the parties’ submissions and the violation found, the Court awards the applicants jointly EUR 26,000, plus any tax that may be chargeable to them on that amount.Costs and expenses

62.  The applicants claimed EUR 5,477 in respect of costs and expenses related to their legal representation before the Court. The applicants provided an estimate of the costs for services rendered and referred to a legal representation contract with their representatives. However, they submitted neither a copy of the contract referred to nor the documents justifying the amounts of the expenses claimed.

63.  The Government submitted that the applicants had failed to substantiate their claim and that the amount claimed did not reflect the actual extent of the legal services rendered.

64.  Given that the applicants did not submit documents showing that they had paid or were under a legal obligation to pay the fees billed by their representatives or the expenses incurred by them (see Merabishvili v. Georgia [GC], no. 72508/13, § 327, 28 November 2017), the Court is not in a position to assess the claim. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicants have actually been incurred by them.

65.  It follows therefore that the claim must be rejected.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaints under Article 2 and Article 13 in conjunction with Article 2 of the Convention admissible and the remainder of the application inadmissible;Holds that there has been no violation of Article 2 of the Convention under its substantive limb in respect of Mr Timur Chaplayev;Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Mr Timur Chaplayev disappeared;Holds that no separate issue arises under Article 13 in conjunction with Article 2 of the Convention;Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, EUR 26,000 (twenty-six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 9 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Darian Pavli
Deputy RegistrarPresident

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