Communicated on 19 September 2016
THIRD SECTION
Application no. 51119/15
Abdulbek GADAYEV and others
against Russia
lodged on 2 October 2015
STATEMENT OF FACTS
The applicants are:
1) Mr Abdulbek Gadayev, who was born in 1959;
2) Ms Asmalik Ezhiyeva, who was born in 1961;
3) Mr Aslan Gadayev, who was born in 1987;
4) Ms Tanzila Gadayeva, who was born in 1998; and
5) Ms Rayana Gadayeva, who was born in 2003;
The applicants live in Mesker-Yurt, Chechnya. They are represented before the Court by Materi Chechni, an NGO based in Grozny.
The first and second applicants are the parents of Mr Anzor Gadayev, who was born in 1983. The third, fourth and fifth applicants are his brother and sisters.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Anzor Gadayev
At about 10 p.m. on 5 August 2008 a group of armed servicemen in civilian clothes arrived at the applicants’ house at 1 Tsvetochnaya Street in Mesker-Yurt, Chechnya in three vehicles: a white VAZ 2107 car with the registration numbers containing the digits 327 07 RUS; a VAZ 2112; and an UAZ jeep (the Hunter model) without registration numbers. The servicemen entered the courtyard of the applicants’ house, apprehended Mr Gadayev (a former member of illegal armed groups), forced him into the VAZ 2107 car and drove off in the direction of the Shali-Argun motorway.
The first applicant saw the servicemen taking his son away and tried to intervene; however, one of the perpetrators threatened him with firearms and fired several warning shots into the ground.
According to the applicants, shortly after the abduction the white VAZ 2107 car was seen parked on the premises of the Argun department of the interior (Аргунский отдел внутренних дел) (hereinafter “the OVD”). The car allegedly belonged to Mr Su.I., who was also abducted on 5 August 2008 by a group of armed servicemen in camouflage uniforms. According to the applicants’ version of the event, the servicemen seized Mr Su.I.’s VAZ 2107 car, changed its registration plate and drove to Mesker-Yurt, where they carried out the abduction of Mr Gadayev.
The whereabouts of Mr Gadayev have remained unknown ever since.
2. Official investigation into the abduction
Immediately after the abduction the first applicant informed the authorities thereof and requested that a criminal case be opened.
On 6 August 2008 a police officer from the Shali inter-district investigations department of the Chechnya Investigations Committee (Шалинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре РФ) (hereinafter “the Shali inter-district investigations department”) inspected the crime scene. Nothing was seized as evidence.
On 18 August 2008 the Shali inter-district investigations department opened criminal case no. 45018 under Article 126 § 2 of the Criminal Code (aggravated abduction).
On 18 September 2008 the first applicant was granted victim status in the case and questioned. His statement concerning the circumstances of the abduction was similar to the account of the event that the applicants submitted to the Court. He submitted additionally that immediately after the abduction he had reported the incident to the police. The police had arrived on the scene and seized a bullet casing left by the perpetrators. On the following day he had examined the area and found another casing, which he had later taken to the police.
On 22 September 2008 the investigators questioned Mr Sa.I., the father of Mr Su.I. (see above). He submitted that his son had been abducted during the evening of 5 August 2008 in Argun and that the perpetrators had taken his white VAZ 2107 car away. He further stated that in searching for his son, he had gone to the Argun OVD, where he had seen the above car parked on the OVD premises.
On 5 October 2008 the investigators questioned a neighbour, Mr L.S., who testified that late in the evening on 5 August 2008 he had been at home and had heard noises coming from outside of the house. He had gone outside and seen a white VAZ 2107 car and a VAZ 2112 car driving away in the direction of the Argun-Shali motorway.
Between 4 and 6 November 2008 the investigators questioned two eyewitnesses, Ms Kh.Z. and Mr A.G.
Ms Kh.Z. (the wife of Mr Gadayev) submitted that at about 10 p.m. on 5 August 2008 she and her husband had been at home when the brother of Mr Gadayev, Mr A.G., had arrived and told him that acquaintances of Mr Gadayev had been waiting for him in the courtyard. Mr Gadayev had gone outside. Several minutes later, she (that is to say Ms Kh.Z.) had also gone outside and seen unidentified men in a white VAZ 2107 car and a VAZ 21112 car forcibly taking her husband away.
Mr A.G. testified that at about 10 p.m. on 5 August 2008 an unidentified man had knocked on the gates of their house’s courtyard and introduced himself as Musa. The man had told him (that is to say Mr A.G.) that he and Mr Gadayev had been in prison together and that he wanted to talk to him. When Mr Gadayev had gone outside to speak to the man called Musa, two armed men in civilian clothes had entered the courtyard and told Mr Gadayev that someone named Salakh had been waiting for him on the street, outside the gates to the courtyard. Mr Gadayev had followed the men. Once they had left the courtyard, the men had forced Mr Gadayev into one of the vehicles waiting nearby and driven off.
On 18 November 2008 the investigation in the case was suspended for failure to identify the perpetrators. It was resumed on several occasions and again suspended, including suspensions on 26 December 2008, 17 March and 30 April 2009, and 25 April 2014. The investigation was resumed on 14 January 2015.
On 6 May 2011 the NGO Materi Chechni asked a number of state authorities and law-enforcement agencies to assist in the search for Mr Gadayev. In reply they received letters stating either that their request had been forwarded to yet another law-enforcement agency for further processing or that operational search activities were still in progress to establish Mr Gadayev’s whereabouts.
On 19 July 2013 the first applicant requested that the investigators grant him access to the case file. The outcome of this request is unknown.
It appears that the investigation is still pending.
3. Proceedings against the investigators
On 26 March the first applicant lodged a complaint with the Shali Town Court challenging the investigators’ decision to suspend the investigation and their failure to take basic steps. The outcome of those proceedings is unknown.
On 16 December 2014 the applicant lodged a similar complaint before the same court.
On 27 January 2015 the court rejected the complaint, having found that the investigators had earlier resumed the criminal investigation. On 5 May 2015 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 Gadayev 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 on account 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 their relative violates all 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 complaint under Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Having regard to:
- the Court’s many judgments finding violations of Article 2 of the Convention in respect of both the disappearance 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 many examples, Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012, and Khava Aziyeva and Others v. Russia, no. 30237/10, 23 April 2015); 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 respective investigations:
(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 in order to provide a satisfactory and convincing explanation for the circumstances of the abduction and ensuing disappearance of the applicants’ relative (see, mutatis mutandis, Varnava and Others [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 a satisfactory and convincing explanation of the events by other means?
(c) Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of the applicants’ 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 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, the authorities’ alleged indifference in that connection and their 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?
3. Was the applicants’ 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?
4. 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?
5. Further to 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 has been abducted by State agents;
and, in any event,
(b) a complete list of all investigative actions taken in connection with the applicants’ complaints about 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 documents from the investigation file that are relevant for the establishment of the factual circumstances of the allegations and the evaluation of the effectiveness of the criminal investigation.
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