KHACHUKAYEVY v. RUSSIA

FIRST SECTION

Application no. 34576/08
KHACHUKAYEVA and Others
against Russia
lodged on 2 July 2008

STATEMENT OF FACTS

The applicants are the following Russian nationals:

-Elita Khachukayeva, born in 1972, lives in Goyty, Chechnya;

-Khadizhat Khachukayeva, born in 1998, lives in Alkhan-Yurt, Chechnya;

-Kheda Khachukayeva, born in 2001, lives in Urus-Martan, Chechnya.

They are represented by the lawyers of NGO Stichting Russia Justice Initiative (SRJI), assisted by NGO Astreya.

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Disappearance of Islam Deniyev

The applicants are the wife and daughters of Islam Deniyev, born in 1966. At the material time they lived in the village of Alkhan-Yurt in the Urus-Martan District of Chechnya. The applicants were not the eye-witnesses of Islam Deniyev’s abduction, but submitted the following.

The village is situated along major highway “Kavkaz”, or the Rostov-Baku road, on which in 2000 there were located several permanent road blocks manned by military and security servicemen. These roadblocks ensured that in 2000 no vehicle could have passed along the highway without being examined and information about it being entered into a registration log. According to the applicants, one permanent road block was situated about three kilometres to the east from Alkhan-Yurt, at the junction with the road towards Grozny. This road block was commonly referred to as the “Chernorechensky”, by the name of the Grozny suburb situated nearby.

Another road block was situated on the bridge over river Terek in the village Chervlenaya, about 20 kilometres to the north of Grozny.

On 24 November 2000 the applicants’ husband and father Islam Deniyev travelled to Gudermes together with his friends Sayd-Akhmed S., a resident of Martan-Chu, and Khizir A., a resident of Alkhan-Yurt, in the latter’s car Toyota Land Cruiser. The car had number plates A 999 BK 95, and thus was easily noticeable because of the three nines.

At about 11 a.m. on 24 November 2000 a group of Alkhan-Yurt residents travelled through the “Chernorechenskiy” roadblock by bus and noticed Khizir A.’s car at the roadblock. The three men were standing outside of the vehicle, surrounded by the military, in the presence of armoured vehicles (“BMP”) and UAZ cars. The first applicant did not point to any witnesses in particular, but referred to this information in her submissions to the domestic authorities and the Court.

The first applicant submits that Islam Deniyev’s and Khizir A.’s relatives later talked to the unnamed servicemen of the military unit which had manned the “Chernorecehenskiy” road block. The unit was known to be under the command of “General Shamanov” [Major-General Vladimir Shamanov, one of the senior military commanders of the operation in Chechcnya in 2000]. They also found two unnamed witnesses who had been detained at the same time as the three men and saw Khizir A. and two other men at the military unit’s headquarters in the village of Tangi-Chu.

It appears that no other reliable information about the presumed detention of the three men has been found.

In support of their complaints, the applicants submitted the first applicant’s statements addressed to various State authorities and to the Court, witness statement by Mr R.V. dated July 2007, and copies of documents from the criminal investigation file.

B. Search for Islam Deniyev, finding of the remains and investigation

1. Information about the detained men and the car

Having learnt from the bus passengers about the detention of Islam Deniyev and two other men at the “Chernorechye” roadblock on 24 November 2000, the first applicant and her family at first were not worried since they presumed that men had been stopped for a routine check. They were also reassured by Mr R.V., at that time the head of administration of Alkhan-Yurt, that there were no reasons to fear since all three had been law-abiding citizens.

In the end of November 2000 Mr R.Sh. saw Khizir A.’s Toyota car in the military convoy, passing through the roadblock over the Terek river in the village of Chervlenaya. Mr R.Sh. was later questioned by the prosecutor’s office.

At some point in 2001 another friend of the missing men has spotted the number plate from Khizir A.’s car on a military Niva vehicle. The serviceman driving the car was questioned by the prosecutor’s office; he apparently testified that he had recovered the number plates near the Chervlenaya village. No transcript of that questioning has been provided.

In August 2001 the applicants learned that the blown-up carcass of a Toyota Land Cruiser vehicle has been found in the north of Chechnya, in the Naurskiy District. It appears that the car was identified as the one belonging to Khizir A. although no documents to this effect have been submitted.

2. Opening of the criminal investigation

The applicant and other relatives eventually complained about the abduction to law enforcement bodies and an official investigation was instituted on 6 February 2001 by the Zavodskoy District Prosecutor’s Office of Grozny (“the district prosecutor’s office”). The case file was assigned no. 13023.

It was opened upon complaint lodged by Islam Deniyev’s brother. The decision and subsequent documents produced by the district prosecutor’s office referred to the facts as follows: “On 24 November 2000, at about 11 a.m., at the Rostov-Baku highway near the former road block of the Chernorechenckiy post of the [traffic police] unknown persons detained and drove in unknown direction [Islam Deniyev, Khizir A. and Sayd-Akhmed S.].” Subsequent decisions to adjourn and reopen the proceedings referred to the absence of information about the perpetrators or the whereabouts of the missing men.

On 4 March 2002 the deputy prosecutor of Grozny strongly criticised the investigation:

“The examination of the case file shows that the investigation has been carried in extremely superficial manner and without any plan. ... Until now not a single relative of the victims of the crime had been questioned or granted the procedural status, [the investigator] has contended himself to sending formal requests to various bodies and receiving equally formal replies. ...

It’s necessary to question the family members and close friends about the missing men’s life, work and social life ... to receive a reply from the military prosecutor’s office of the [Northern Caucasus Military Circuit], to question more in details witness [K.I.] who had found the missing car in the forest ... to question once again witness [R.Sh.] who had seen the vehicle in a convoy of military vehicles going over the bridge “Terek” in Chervlenaya village ... to take all steps to identify the military unit which had travelled through the bridge at that time. The witness had pointed to the large number of vehicles in the convoy, therefore it appears quite possible to clarify this question. If positive answers are obtained, one should preview a visit to the location of the military unit, in order to find out more about the fate of the missing car”.

Similar directions were contained in the decisions of the Zavodskoy District prosecutor of 28 April 2003 and deputy prosecutor of Chechnya of 6 June 2003. It does not appear that most of these actions, with the exception of granting victim status to some of the relatives, have been taken.

3. Finding and identification of the remains

On 21 November 2002 fragments of three bodies and clothes were found in the forest near the village Darbankhi, near the road Darbankhi‑Vinogradnoye in the north of the Grozny district. A relative of Sayd‑Akhmed S. had taken part in the collection of the remains, he recognised some items of clothing as belonging to him.

On 28 November 2002 the district prosecutor’s office of the Grozny District opened criminal investigation into murder. This file was assigned number 56184.

Within these proceedings, a genetic expert report was commissioned by the investigators. Blood samples were collected from the relatives of Islam Deniyev, Khizir A. and Sayd-Akhmed S.

On 30 November 2004 the genetic expert report concluded that the remains had belonged to Islam Deniyev, Khizir A. and Sayd-Akhmed S. No copy of that report has been submitted to the Court, however other documents of the criminal investigation file refer to this conclusion.

Despite this report, it appears that until 25 March 2008 the initial investigation into the alleged abduction of the three men (no. 13023) continued as before, referring to them as “missing”.

4. Subsequent developments

On 18 December 2006 the first applicant was granted the status of victim in the criminal proceedings no. 13023 concerning the disappearance of her husband.

On 25 March 2008 the investigations opened into the abduction and murder of the three men were joined together; the case file was assigned no. 13023 and the Grozny department of the investigative committee was put in charge of it. The first applicant was informed of this decision on 26 March 2008.

These proceedings, after having been suspended and resumed on several occasions, remain pending, without any apparent progress.

C. The first applicant’s appeal to the court

In March 2007 the first applicant wrote to the Zavodskoy District Court of Grozny. Under Article 125 of the Criminal Procedural Code she sought a ruling obliging the investigators to provide her with unrestricted access to the investigation file no. 13023, to resume the adjourned investigation and to conduct it thoroughly and effectively. She also asked to be appointed free legal advisor to assist her in the proceedings.

On 27 February 2008 the Supreme Court of Chechnya, in the final instance, granted the first applicant’s request to obtain full access to the case file and to take copies. Her request for free legal assistance was dismissed, for lack of grounds in the domestic law.

D. Other relevant developments

It follows from the documents submitted by the applicants that in September 2003 the Urus-Martan Town Court had declared Islam Deniyev missing person, upon request by his sister Mrs A.D.

It also follows from the documents submitted to the Court that in November 2006 Mrs A.D. had been appointed as the legal guardian of the second and third applicants.

COMPLAINTS

1. The applicants complain about the violation of the right to life of their relative Islam Deniyev and submit that the circumstances of his detention indicate that he had been abducted by State agents. The applicants further complain that no effective investigation was conducted into their relative’s disappearance and murder.

2. Referring to Article 3 of the Convention, the applicants complain that they suffer severe mental distress due to the indifference demonstrated by the national authorities in connection with the disappearance of their close relative and the failure to conduct an effective investigation in that respect.

3. The applicants submit that the unacknowledged detention of their relative violates the guarantees of Article 5 of the Convention.

4. The applicants complain under Article 13 of the Convention that they did not have an effective remedy in respect of their complaints under Articles 2 and 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Having regard to:

- the Court’s numerous previous judgments in which violations of Article 2 were found in respect of both 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 others, Bazorkina v. Russia, no. 69481/01, 27 July 2006; Imakayeva v. Russia, no. 7615/02, ECHR 2006‑XIII (extracts); Luluyev and Others v. Russia, no. 69480/01, ECHR 2006‑XIII (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Elsiyev and Others v. Russia, no. 21816/03, 12 March 2009; Asadulayeva and Others v. Russia, no. 15569/06, 17 September 2009; Medova v. Russia, no. 25385/04, ECHR 2009‑... (extracts)); and

- the similarity of the present application to the cases cited above, as can be derived from the applicants’ submissions and the interim results of the respective investigations:

(a) Did the applicants make out a prima facie case that their relative Islam Deniyev had been detained by State servicemen?

(b) If so, can the burden of proof be shifted to the Government in order to provide a satisfactory and convincing explanation of the circumstances of the applicants’ relative’s abduction and ensuing disappearance (see, mutatis mutandis, Varnava and Others v. Turkey, nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 184, 10 January 2008, with further references)? Is 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 Islam Deniyev?

(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 and murder 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 respect 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 of 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 3, 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 Islam Deniyev had been abducted by State servicemen;

and, in any event,

(b) a complete list of all investigative actions taken in connection with the applicants’ complaints about the disappearance and murder, in the 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 in criminal case no. 13023, such as, in particular:

(i) the initial complaints about the disappearance of their relative which had prompted the opening of the investigation;

(ii) record(s) of any interviews of State servicemen (such as, for instance, military servicemen, local administration and police officers, servicemen at roadblocks and checkpoints, employees of other law enforcement agencies, etc.) held in connection with the abduction;

(iii) statements of the eye witnesses to the abductions, if any;

(iv) if crime scene(s) were examined, expert and/or forensic examinations were ordered in the course of the investigation, copies of all the relevant expert reports and findings;

(v) any other documents relevant for the establishment of the factual circumstances of the allegations and the evaluation of the effectiveness of the criminal investigations.

 

Full & Egal Universal Law Academy