Communicated on 26 September 2016
THIRD SECTION
Application no. 27414/15
Tamara MADAYEVA and Others
against Russia
lodged on 19 May 2015
STATEMENT OF FACTS
The applicants are:
1) Ms Tamara Madayeva, who was born in 1956;
2) Mr Eli Mutalipov, who was born in 1956;
3) Mr Saykhan Mutalipov, who was born in 1982;
4) Mr Amirkhan Mutalipov, who was born in 1983;
5) Mr Isa Mutalipov, who was born in 1988;
6) Mr Musa Mutalipov, who was born in 1989;
7) Ms Milana Umarova, who was born in 1982;
8) Mr Abdul-Vakhid Mutalipov, who was born in 2004; and
9) Mr Magomed-Salekh Mutalipov, who was born in 2005.
The first and second applicants live in the village of Petropavlovskaya, Chechnya; they are the parents of Mr Alikhan Mutalipov, who was born in 1979. The third applicant lives in Tsa-Vedeno, Chechnya, and the fourth, fifth and sixth applicants also live in Petropavlovskaya; they are the brothers of Mr Alikhan Mutalipov. The seventh, eighth and ninth applicants live in Grozny; they are the wife and children of Mr Alikhan Mutalipov.
The applicants are represented before the Court by Materi Chechni, an NGO based in Chechnya.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Alikhan Mutalipov
At night on 1 June 2005 Mr Alikhan Mutalipov and his wife (the seventh applicant) were at home, at 9 Rabochaya Street in the village of Chervlennaya, Chechnya, when at about 2.30 a.m. a group of armed servicemen in camouflage uniforms and balaclavas arrived at their house in an UAZ (tabletka) minivan, two UAZ cars and a VAZ 02199 car. The servicemen, who spoke unaccented Russian, broke into the house, arrested Mr Alikhan Mutaliyev, forced him outside and took him away in one of the vehicles to an unknown destination.
According to the applicants, on the night of the abduction the servicemen seized Mr Alikhan Mutalipov’s mobile phone. Subsequently, information was obtained to the effect that the mobile phone was being used by servicemen from a military unit located in the vicinity of Khankala, Chechnya. It is unclear whether the applicants submitted this information to the investigators.
The whereabouts of Mr Alikhan Mutalipov have remained unknown ever since.
2. Official investigation into the abduction
According to the applicants, immediately after the abduction they informed the authorities thereof and requested that a criminal investigation be opened. However, as can be seen from the documents submitted to the Court, a complaint about the disappearance of Mr Alikhan Mutalipov was lodged with the domestic authorities only on 20 November 2006.
On 22 November 2006 the Shelkovskiy district prosecutor’s office in Chechnya (прокуратура Шелковского района Чеченской Республики) opened criminal case no. 61047 under Article 105 of the Criminal Code (murder). The decision stated, in particular, that Mr Alikhan Mutalipov had disappeared after having left his home at about 2.30 a.m. on 2 June 2005 in the company of unidentified men with whom he had consumed alcohol in the preceding hours.
On the same date (that is to say 22 November 2006) the first applicant was granted victim status in the case.
On an unspecified date (the date is illegible) the investigators questioned a neighbour, Ms Zh.M., who stated that on the morning of 2 June 2005 she had learned from one of the applicants that during the night of 1 to 2 June Mr Alikhan Mutalipov had been abducted from his home by a group of armed men in balaclavas. She further stated that during the night in question she had been at home and had not heard any noise outside.
On an unspecified date the investigation in respect of the case was suspended for failure to identify the perpetrators. That decision was quashed on an unspecified date in 2014 by the supervising authorities, who ordered that the investigation be resumed. Subsequently, the investigation was again suspended on 1 September 2014 and resumed on 26 November 2014.
On 26 April 2011 the first applicant requested that the investigators inform her of progress in the criminal case. In reply, she received a letter stating that the investigation in respect of the case had been suspended but that operational search activities were still in progress to establish Mr Alikhan Mutalipov’s whereabouts.
On 6 February and again on 19 May 2014 the first applicant asked the investigators to grant her access to the criminal case file. She also requested information regarding progress in the investigation. No formal reply was received.
On 21 March 2014 Materi Chechni and the applicants asked a number of State officials and law-enforcement agencies for assistance in the search for Mr Alikhan Mutalipov. 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.
3. Proceedings against the investigators
On 20 August 2014 the first applicant lodged a complaint with the Shelkovskiy District Court in Chechnya challenging her lack of access to the criminal case file. The outcome of those proceedings is unknown.
On 11 November 2014 the first applicant again lodged a complaint with the same court challenging the decision of 1 September 2014 to suspend the investigation and the investigators’ failure to take basic steps.
On 27 November 2014 the court rejected the complaint, having found that the investigators had earlier resumed the investigation. On 28 January 2015 the Chechnya Supreme Court upheld the above decision on appeal.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of Mr Alikhan Mutalipov’s right to life 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. Have the applicants 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 applicants “excessive or unexplained delays” in submitting their complaints to the domestic authorities and the Court after the abduction of their 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 applicants are invited to provide an explanation for the delay in lodging their complaint with the domestic authorities and the Court, and to provide copies of their correspondence (and related documents) with the authorities in connection with the abduction of their 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 applicants’ submissions and the interim results of the investigation,
(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 respect of providing a satisfactory and convincing explanation of the circumstances of the applicants’ relative’s abduction and ensuing disappearance (see, mutatis mutandis, Varnava and Others, §§ 181-84, (cited above), 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 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 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?
3. Has the applicants’ mental suffering in connection with the disappearance of their 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 applicants?
4. 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?
5. 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?
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 applicants’ allegations that their 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 applicants’ complaints about the disappearance of their 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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