Communicated on 19 September 2016
THIRD SECTION
Application no. 59203/13
Khava DEMELKHANOVA
against Russia
lodged on 8 July 2013
STATEMENT OF FACTS
The applicant is Ms Khava Demelkhanova, who was born in 1970 and lives in Urus-Martan, Chechnya. She is represented before the Court by Mr Said Mushayev, a lawyer practising in Grozny.
The applicant is the wife of Mr Abdula (also spelled as Abdul) Demelkhanov, who was born in 1970.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Abduction of Mr Abdula Demelkhanov
In the afternoon of 28 March 2004 Mr Demelkhanov was at the junction of P. Musorova Street and 8 Marta Street in Grozny, Chechnya, when a group of armed servicemen in camouflage uniforms arrived in armoured personnel carriers (APCs), arrested him and took him away to an unknown destination.
The whereabouts of Mr Abdula Demelkhanov have remained unknown ever since.
2. Official investigation into the abduction
On 28 March 2004 the sister of Mr Abdula Demelkhanov, Ms S.D., informed the authorities of the disappearance of her brother and requested that an investigation be opened.
On an unspecified date between April 2004 and July 2005 the Oktyabrskiy district department of the interior in Grozny (Отдел внутренних дел Октябрьского района г. Грозный) refused to open a criminal investigation into the disappearance.
On 9 August 2005 the Oktyabrskiy district prosecutor’s office in Grozny (Прокуратура Октябрьского района г. Грозный) opened criminal case no. 42094 under Article 105 of the Criminal Code (murder).
On 16 August 2005 the applicant was granted victim status in the case.
On 9 November 2005 the investigation in respect of the case was suspended for failure to identify the perpetrators. It was resumed on 17 May 2011 and again suspended on 6 June 2011.
On 30 May 2011 the investigators questioned the applicant. She did not provide any pertinent information concerning the alleged abduction of her husband.
On 4 June 2011 and 7 February 2012 the investigators questioned eyewitnesses Ms R.K. and Ms T.D., who submitted that at about 5 p.m. on 28 March 2004 they had been in front of 8 Marta Street in Grozny and seen a group of five to six servicemen in camouflage uniforms arrive in an APC, request Mr Abdula Demelkhanov to produce identity documents, then force him into the APC and drive off. The servicemen had spoken unaccented Russian; some of them had been wearing balaclavas.
It appears that the investigation is still pending.
3. Proceedings before the domestic courts
On 28 January 2013 the applicant lodged a claim for compensation for non-pecuniary damage sustained as a result of the alleged abduction of her husband.
On 12 March 2013 the Urus-Martan Town Court granted the applicant’s claim and awarded her 1,000,000 Russian roubles (RUB), (13,203 euros (EUR)) in compensation.
On 28 May 2013 the Chechnya Supreme Court quashed the above decision on appeal and dismissed the claim as unfounded.
COMPLAINTS
Relying on Article 2 of the Convention, the applicant complains of a violation of the right to life of Mr Abdula Demelkhanov and submits that the circumstances of his abduction indicate that the perpetrators were State agents. The applicant further complains that no effective investigation into the matter has been conducted.
The applicant complains, invoking Article 3 of the Convention, that she is suffering severe mental distress on account of the indifference demonstrated by the authorities in respect of the abduction and subsequent disappearance of her close relative and the State’s failure to conduct an effective investigation into the incident.
The applicant submits that the unacknowledged detention of her relative violates all the guarantees under Article 5 of the Convention.
The applicant complains under Article 13 of the Convention of the lack of an effective remedy in respect of her complaints under Articles 2, 3 and 5 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant 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 applicant “excessive or unexplained delays” in submitting her complaints to the domestic authorities and the Court after the abduction of her 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 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)? The applicant is invited to provide an explanation for the delay in lodging her complaint with the domestic authorities and the Court, and to provide copies of her correspondence (and related documents) with the authorities in connection with the abduction of her 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 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 applicant’s submissions and the interim results of the investigation,
(a) Has the applicant made out a prima facie case that her 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 in respect of providing a satisfactory and convincing explanation of the circumstances of the applicant’s relative’s abduction and ensuing disappearance (see, mutatis mutandis, Varnava and Others (cited above), §§ 181-84, and Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII))? Are the Government in a position to rebut the applicant’s 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 applicant’s missing relative?
(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 applicant’s missing relative sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?
3. Has the applicant’s mental suffering in connection with the disappearance of her close relative and the authorities’ alleged indifference in that respect and their alleged failure to conduct an effective investigation into the 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 applicant?
4. Was the applicant’s missing relative 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?
5. Did the applicant have at her disposal effective domestic remedies in respect of her complaints under Articles 2, 3 and 5 of the Convention, as required by Article 13 of the Convention?
6. 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 applicant’s allegations that her missing relative was abducted by State servicemen;
and, in any event,
(b) a complete list (in chronological order) of all investigative steps taken in connection with the applicant’s complaints about the disappearance of her missing relative, 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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