Communicated on 28 June 2019
THIRD SECTION
Application no. 38984/18
Aslambek Murzabekovich KHUTIYEV and others
against Russia
lodged on 3 August 2018
STATEMENT OF FACTS
The applicants are:
(1) Mr Aslambek Khutiyev, who was born in 1940,
(2) Ms Zarema Khutiyeva, who was born in 1972, and
(3) Ms Yelizaveta Tangiyeva, who was born in 1946,
The applicants are Russian nationals and live in Nazran, Ingushetia. The first applicant is the father of Mr Mukhamed Khutiyev (also spelled as “Mukhkhamed”, “Mukhammed” and also known as “Magomed”) and the second applicant is his wife. The third applicant is the mother of Mr Magomed Khashagulgov. The applicants are not legally represented before the Court.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Disappearance of Mukhamed Khutiyev and Magomed Khashagulgov
At the material time Mukhamed Khutiyev and his family lived in Nazran, Ingushetia. He worked in a construction company, with head office in Makhachkala, Dagestan.
On 20 October 2010 Mr Khutiyev and Mr Khashagulgov left Nazran for a business trip to the company’s head office in Makhachkala in Mr Khutiev’s Toyota car (steel-coloured “Corolla” model) with the registration number C999TO06.
At 6.14 p.m. the second applicant called her husband and he told her that they were heading back home. Mr Khashagulgov also called the third applicant and told her that they were driving back to Ingushetia. Later in the evening they stopped answering their telephones.
The applicants have not seen Mukhamed Khutiyev and Magomed Khashagulgov since 20 October 2010.
According to the applicants, on that day a mobile checkpoint equipped with military vehicles was installed in Makhachkala at the crossroads of Akushinskaya Street and motorway “Kavkaz”.
B. Official investigation into the disappearance
On 5 November 2010 the first applicant complained to the Investigation Department of the Kirovskiy district of Makhachkala about the disappearance of his son, Mukhamed Khutiyev.
On the same day, 5 November 2010, the investigators opened criminal case no. 058696 into the disappearance of Mukhamed Khutiyev and Magomed Khashagulgov under Article 105 (murder) of the Criminal Code of Russia (“the CC”).
On 8 November 2011 the second applicant was granted victim status.
On 11 January 2011 the Criminal Investigations Department of Dagestan Ministry of the Interior (the police) informed the second applicant that it had been established that her husband’s car had been stopped on the stationary checkpoint “Lava-20” for a check, and that traffic police officers had been questioned about the events. No information concerning the contents of the statements was given.
On 18 January 2011 the Federal Service for the Execution of Sentences informed the second applicant that her husband Mukhamed Khutiyev was not detained in their facilities.
On 4 May 2011 the second applicant requested the investigators’ superiors to inform her about the progress of the investigation. On 5 August 2011 she was informed that the investigation was pending.
On 23 November 2011 the criminal case was suspended for the failure to identify perpetrators.
On 25 December 2012 the investigators refused to grant the first applicant victim status since the second applicant had been granted the status and granting victim status to the first applicant was unnecessary.
On 25 March 2013 the second applicant submitted to the investigators that on 9 December 2012 an unknown man in civilian clothes, allegedly a law-enforcement officer, had approached the first applicant on the market in Nazran and told him that Mukhamed Khutiyev had been abducted by officers of the Ingushetia Centre against Extremism and the Federal Security Service (“the FSB”) for his alleged participation in an unauthorised demonstration on the motorway on 18 October 2010. The applicant requested that the investigators, among other things, identified the Ingushetia law-enforcement officers who had been on mission in Dagestan on 20 October 2010.
On 17 April 2013 the criminal case was suspended for the failure to identify perpetrators.
On 12 August 2013 the second applicant resubmitted her request of 25 March 2013 to the investigators.
On 24 February 2015 the investigators allowed the second applicant’s request for information on the progress of the investigation, having provided her with copies of a few documents.
On 2 November 2015 the second applicant again requested information about the investigation.
On 25 September 2017 the second applicant made another request to the investigators which was partly allowed on 11 October 2017.
C. Proceedings against the investigators
1. The first set of proceedings
On 19 January 2012 the first applicant lodged a complaint with the Kirovskiy District Court about the investigators’ inactivity.
On 28 February 2012 the court dismissed his complaint as unsubstantiated. On 3 April 2012 the Supreme Court of Dagestan upheld the court decision.
2. The second set of proceedings
On 12 March 2013 the Kirovskiy District Court dismissed the first applicant’s complaint against the refusal of 25 December 2012 to grant him victim status.
3. The third set of proceedings
On 13 May 2013 the second applicant lodged a complaint with the Kirovskiy District Court about the investigators’ failure to examine her request of 25 March 2013.
On 24 May 2013 the court dismissed the applicant’s complaint on procedural grounds.
4. The fourth set of proceedings
On 23 October 2013 the second applicant lodged a complaint with the Kirovskiy District Court about the investigators’ inactivity.
On 8 May 2014 the second applicant lodged a complaint with the President of the Kirovskiy District Court that her complaint of 23 October 2013 had not been examined by the court.
On 6 December 2013 the court dismissed the applicant’s complaint of 23 October 2013.
On 22 July 2014 the Supreme Court of Dagestan dismissed the applicant’s appeal finding that on 1 September 2013 the investigators had requested information from the Ingushetia Ministry of the Interior and the Ingushetia FSB whether any officers had been sent on mission to Dagestan and, if so, when and in what circumstances. Similar requests had been sent to the Dagestan law-enforcement bodies. In November 2013 the investigators had resubmitted the requests. The information had not been received to date.
5. The fifth set of proceedings
On 1 April 2016 the second applicant lodged a complaint with the Kirovskiy District Court stating that the investigators failed to inform her about the progress in the investigation.
On 26 May 2016 the court returned her complaint for the failure to comply with procedural rules.
6. The sixth set of proceedings
On 9 March 2017 the second applicant challenged the suspension of the investigation of 17 April 2013 before the Kirovskiy District Court.
On 18 March 2017 the court dismissed the complaint finding that all possible investigative steps had been taken.
7. Subsequent proceedings
On 3 November 2017 the court discontinued the proceedings into the applicant’s complaint against the decision of 11 October 2017.
On 27 December 2017 the Supreme Court of Dagestan dismissed the applicant’s appeal against the decision of 3 November 2017.
On 16 April 2018 the second applicant received a copy of the court decision of 27 December 2017.
D. Relevant domestic law and practice
For a summary of the relevant domestic law see Turluyeva v. Russia, no. 63638/09, §§ 56-64, 20 June 2013.
COMPLAINTS
The applicants complain under Article 2 of the Convention about the disappearance of Mr Mukhamed Khutiyev and Mr Magomed Khashagulgov and the failure of the domestic authorities to conduct an effective investigation into the events.
Relying on Article 3 of the Convention the applicants complain 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 relatives and the failure to conduct an effective investigation into the disappearance.
Relying on Article 13 of the Convention the applicants complain that no effective remedy was available in respect of the alleged violation of Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants made out a prima facie case that Mr Mukhamed Khutiyev and Mr Magomed Khashagulgov disappeared as a result of State servicemen’s actions? 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’ disappearance (Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 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 disappearances by submitting documents which are in their exclusive possession or by providing by other means a satisfactory and convincing explanation of the event?
2. Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of Mr Mukhamed Khutiyev and Mr Magomed Khashagulgov? Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), has the investigation in the present case by the domestic authorities been sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?
3. Has the applicants’ mental suffering in connection with the disappearance of their relatives and the authorities’ alleged indifference in that respect and alleged failure to conduct an effective investigation into the matter 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?
4. Have the applicants had at their disposal effective domestic remedies in relation to the alleged violation of Article 2 of the Convention in respect of their relatives, as required by Article 13 of the Convention?
5. The Government are requested to submit a copy of the entire investigation file in criminal case no. 058696 instituted in relation to the disappearance of Mr Mukhamed Khutiyev and Mr Magomed Khashagulgov. They are also invited to include a list of steps, in chronological order, reflecting the actions taken by the authorities in the criminal proceedings to date.
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