Communicated on 21 June 2019
THIRD SECTION
Application no. 38889/17
Mariya Abubakarovna MALAYEVA
against Russia
lodged on 22 May 2017
STATEMENT OF FACTS
The applicant, Ms Mariya Malayeva, is a Russian national, who was born in 1950 and lives in Karpinskiy kurgan, Chechnya. She is represented before the Court by lawyers from the Committee Against Torture, an NGO based in Nizhniy Novgorod.
The applicant is the mother of Mr Aslambek Saidakhmadov (also spelled as “Aslanbek”) who was born in 1986.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Abduction and subsequent disappearance of Aslambek Saidakhmadov
1. Abduction on 3 August 2009
According to the applicant, on 3 August 2009 she was at home with her son, Aslambek, in their flat in the block of flats in Grozny.
Around 7 p.m. two Chechen men knocked on their door and asked for Aslambek and his identity documents. After he had shown them his passport at their request, they asked him to leave with them. They said that the applicant could follow them. One of the men stayed in the flat and looked around while the other took her son outside. Then, by the time the applicant herself went down to the courtyard, both men and her son were gone. The neighbours said that they had left in a black-coloured civil car VAZ-21174 (“Priora” model) with the registration number B522ME95РУС. Another car VAZ-21099 (dark green) followed the black Priora. The applicant also learned from the neighbours that there had been two more men in camouflage uniforms who had arrived with the Chechen men.
According to the applicant, between 3 August and 22 September 2009 she had no information about her son’s whereabouts.
On 22 September 2009 around 11 a.m. a group of about twenty armed men wearing green camouflage uniforms with insignia of OMON (special police force unit) searched the applicant’s flat. They told the applicant that her son had absconded.
On 23 September 2009 a group of fifteen armed men, allegedly from the OMON, entered the house of the applicant’s mother and abducted Mr M.Kh., the applicant’s nephew. He was released in several hours. Mr M.Kh. stated that the abductors had asked him about Aslambek Saidakhmadov.
In November 2009 the applicant learned from her sister, Ms Sh.K., that Aslambek was in Astrakhan. Ms Sh.K. told the applicant that in the beginning of October 2009 he had arrived to her house in a taxi. He had lost a lot of weight, but he had no visible injuries. Aslambek had told Ms Sh.K. that on 21 September 2009 he had run away from the Chechen OMON headquarters in Grozny where he had been held since his abduction on 3 August 2009. He had been beaten and asked about members of illegal armed groups. Ms Sh.K. rented a flat for him in Astrakhan and regularly checked on him.
According to the applicant, Ms Sh.K. told their sister, Ms T.Kh., that Aslambek Saidakhmadov had asked her to obtain a document required for the application for the Russian foreign passport. The applicant’s sister was able to obtain the document and passed it to someone who worked on the Grozny-Astrakhan train, so Mr Saidakhmadov could pick it up from that person on 25 December 2009. However, her son did not show up for the pick up.
2. Disappearance on 5 January 2010
In the beginning of January 2010 the applicant went to the investigators of the Leninskiy Inter-District Investigations Department in Grozny who told her that on 5 January 2010 her son had been brought to them for questioning and then released. They also told her that on 7 January 2010 he had bought a train ticket to Rostov.
The applicant learned from her neighbour, Ms I.T., that her relative, Mr M., an officer of the OMON, had been arrested after the applicant’s son had absconded from the OMON headquarters. According to the neighbour, the abductors believed that Mr M. had helped Aslambek to run away and held him in detention on their premises until Aslambek Saidakhmadov had been abducted in Astrakhan and taken back to them.
B. Official investigation into the alleged abduction and disappearance
1. Criminal case opened into the abduction on 3 August 2009
On 3 August 2009 the applicant lodged a complaint about the abduction with various authorities.
On 14 August 2009 the investigators of the Leninskiy Inter-District Investigation Department in Grozny opened criminal case no. 66063 into the abduction of Aslambek Saidakhmadov under Article 126 of the Criminal Code of Russia (“the CC”).
On 31 August 2009 the applicant was granted victim status. She was questioned on the same day.
On 18 December 2009 the Chechen Ministry of the Interior informed the investigators that Mr Saidakhmadov’s whereabouts had been established and that according to their operative information, he had intended to leave Russia.
On 23 December 2009 the investigators issued a decision ordering that Mr Saidakhmadov be brought to them by the police.
On 31 December 2014 the investigation was suspended.
On 4 December 2015 the investigators’ superior quashed the decision as premature and ordered, in particular, to question the applicant’s relatives and neighbours.
On 11 January 2016 the criminal case was suspended for the failure to identify the perpetrators.
In September 2016 the applicant complained against the suspension of 11 January 2016 to the Leninskiy District Court. She contended, in particular, that neither the OMON officer M. nor Mr I.U., who allegedly had been also held in the OMON headquarters at the same time as Aslambek, had been questioned by the investigators.
On 19 September 2016 the court discontinued the proceedings into the applicant’s complaint as the investigation had been resumed on 16 September 2016. On 22 November 2016 the Chechnya Supreme Court upheld that decision.
2. Criminal case opened into the abduction on 5 January 2010
On unspecified date in January or February 2010 the applicant lodged a complaint about her son’s disappearance on 5 January 2010.
On 24 February 2010 the investigators opened criminal case no. 20007 into the events of 5 January 2010 under Article 105 of the CC (murder). According to the decision, on 5 January 2010 around 6.40 p.m. Mr Saidakhmadov had left the building of the investigations department in Grozny. Around 8 p.m. he was last seen by a local resident Mr I.A. at the crossroads of Malgobekskaya and Guchina Streets of Grozny.
On the same day, 24 February 2010, a plan for investigative measures was drawn up. According to the plan, the investigators were to verify several theories: whether Mr Saidakhmadov had been arrested by law-enforcement officers, whether he had been abducted by members of illegal armed groups, whether he had been killed, or that he was a member of an illegal armed group and had gone into hiding.
On 5 May 2010 the investigators requested from the Chechnya Minister of the Interior that he informed them about the police officers who had been sent on a mission to Astrakhan as well as assisted them in ensuring the arrival of the Head of the Chechen OMON, Mr Ts., for questioning.
On 12 May 2010 the investigators requested that the Head of the Criminal Police, Mr D., arrived for questioning.
On 24 June 2010 the investigation of the criminal case was suspended.
On 27 September 2011 the investigation was resumed and several investigative steps were ordered. In particular, the investigators were to question the witness Mr I.A. and investigator M. who had questioned Mr Saidakhmadov on 5 January 2010.
On 27 October 2011 the investigation was again suspended.
On 4 November 2011 the investigators received a police report concerning the mission of their officers to Astrakhan. According to the report, on 2 January 2010 three police officers, R.I., A.B., R.Ch., and two OMON officers, A.Kh. and R.M., had left Grozny for Astrakhan on the ground of the investigator’s order of 23 December 2009 to bring Mr Saidakhmadov to Grozny. On 4 January 2010 they had stopped Mr Saidakhmadov near the house where he had stayed and asked him to go with them. Mr Saidakhmadov had gone with them on his own free will and had told the officers that he had left Grozny because of a fight with his family. On 5 January 2010 they had arrived in Grozny, Mr Saidakhmadov had been questioned by the investigators, and then he had left.
On 11 November 2011 the investigation was again suspended.
On 8 June 2012 the applicant complained to the investigators’ superiors against the suspension of 27 October 2011 and asked to resume the investigation. On 11 June 2012 her complaint was dismissed as unsubstantiated.
On 30 June 2012 the applicant lodged a complaint with the Leninskiy District Court against the suspensions of 27 October 2011 and 11 June 2012. The outcome of the proceedings is unknown.
On 13 August 2012 the applicant’s representative lodged a similar complaint with the Leninskiy District Court. On 16 October 2012 the Leninskiy District Court discontinued the proceedings as the case had been resumed on 9 October 2012 (see below).
On 9 October 2012 the investigators’ superiors resumed the investigation ordering that, in particular, the whereabouts of witness Mr I.A. and the investigator M. be established.
On 19 November 2012 the investigation was suspended again.
On 7 March 2013 the suspension of 19 November 2012 was overruled by the investigators’ superiors.
On 30 April 2013 the applicant complained of the investigators’ inaction to the Leninskiy District Court. The applicant stated, in particular, that Mr Ts. had not been questioned.
On 28 May 2013 the court allowed the complaint finding the investigators’ inaction unlawful.
C. 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 applicant complains under Article 2 of the Convention about the disappearance of her son Aslambek Saidakhmadov and the failure of the domestic authorities to conduct an effective investigation into the events.
Relying on Article 3 of the Convention the applicant complains that she is suffering severe mental distress due to the indifference demonstrated by the authorities in respect of the abduction and subsequent disappearance of her son and the failure to conduct an effective investigation into the disappearance.
Relying on Article 13 of the Convention the applicant complains that no effective remedy was available in respect of the alleged violation of Article 2 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant made out a prima facie case that Mr Aslambek Saidakhmadov 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’ relative’s abduction and ensuing 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 applicant’s submissions that State agents were involved in the abduction and subsequent disappearance 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 Aslambek Saidakhmadov? 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 applicant’s mental suffering in connection with the disappearance of her son and the authorities’ alleged indifference in that respect and 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 applicant?
4. Has the applicant had at her disposal effective domestic remedies in relation to the alleged violation of Article 2 of the Convention in respect of her son, as required by Article 13 of the Convention?
5. The Government are requested to submit a copy of the entire investigation file in criminal cases nos. 66063 and 20007 instituted in relation to the abduction of Aslambek Saidakhmadov. 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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