Communicated on 23 September 2016
THIRD SECTION
Application no. 9782/08
Boris OZDOYEV and Zurab TSECHOYEV
against Russia
lodged on 4 February 2008
STATEMENT OF FACTS
The applicants are Mr Boris Ozdoyev (“the first applicant”) and Mr Zurab Tsechoyev (“the second applicant”), who respectively were born in 1944 and 1963 and live in the town of Malgobek and the village of Troitskaya, Ingushetia. They are represented before the Court by the Memorial Human Rights Centre.
The first applicant is the father of Mr Rashid Ozdoyev, who was born in 1975. The second applicant is the brother of Mr Tamerlan Tsechoyev, who was born in 1962.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Rashid Ozdoyev and Mr Tamerlan Tsechoyev and the applicants’ attempts to locate their whereabouts
At the material time, Mr Rashid Ozdoyev was an assistant prosecutor at the Ingushetia prosecutor’s office. Being in charge of the supervision of the Federal Security Service in Ingushetia (Федеральная Служба Безопасности) (hereinafter “the FSS”), he on several occasions officially criticised unlawful activity engaged in by the FSS, including arbitrary detentions, torture and extrajudicial executions. At the beginning of 2004, while on a business trip to Moscow, he reported on the above practices to the federal authorities.
Mr Tamerlan Tsechoyev was a director of a local NGO and an opposition activist.
During the evening of 11 March 2004 Mr Rashid Ozdoyev and Mr Tamerlan Tsechoyev were driving from Nazran to Malgobek in the former’s dark-green VAZ 21099 car when, in the vicinity of the village of Verkhniye Achaluki, a white Niva car without registration numbers collided with them and blocked the road. A group of eight to ten armed servicemen in camouflage uniforms got out of the Niva car and two more vehicles parked nearby (a Gazel minivan with registration numbers containing the digits “26” – indicating that it had been registered in the Stavropol Region – and a silver VAZ 21099 car). The servicemen opened fire, apprehended Mr Rashid Ozdoyev and Mr Tamerlan Tsechoyev, placed them in the Gazel minivan and took them to the premises of the FSS in Magas, Ingushetia. Mr Rashid Ozdoyev’s dark-green VAZ 21099 car was also taken away.
According to the applicants, later (at about 10 p.m.) on the same date, armed men (presumably the same as those that had apprehended Mr Ozdoyev and Mr Tsechoyev) in a white Niva car without registration numbers and a silver VAZ 21099 car abducted Mr Rasukhan Yevloyev and Mr Ibragim Izmaylov at the traffic police checkpoint located at the intersection of the Malgobek-Mayskoye and Nazran-Kantyshevo motorways in Ingushetia (also known as the “Kantyshevskiy intersection”) (see Yevloyeva and Tomova v. Russia no. 14667/09). The applicants submitted this information to the investigators (see below).
As submitted by the applicants, at about 11 p.m. on 11 March 2004 the FSS officers Mr M.Kh. and Mr I.B. saw the white Niva car and two VAZ 21099 cars (silver and dark-green, respectively) entering the premises of the FSS headquarters in Magas. Before letting the cars in, they were instructed by the head of the FSS in Ingushetia, General S.K., to allow the cars to enter the premises. Mr I.B. recognised the driver of the Niva car as the FSS officer Mr R.S. The applicants also submitted this information to the investigators (see below).
Unidentified agents of a law-enforcement agency who did not wish to disclose their identity (because they feared for their lives) told the first applicant that at about 3 a.m. on 12 March 2004 Mr Rashid Ozdoyev and the other three men arrested in the course of the special operation in the evening of 11 March 2004 had been taken from the FSS premises and allegedly brought to Vladikavkaz, North Ossetia, on the orders of General S.K. and Mr A.K. (the then Minister of Internal Affairs in Ingushetia).
In the search for his missing relative, the second applicant interviewed residents of Verkhniye Achaluki (in the vicinity of which the abduction had allegedly taken place). According to the second applicant, one of the residents, who (fearing for his life) wished to keep his identity secret, had directly witnessed the abduction. He (the resident) provided him with details of the abduction, which were similar to those specified above.
The whereabouts of Mr Rashid Ozdoyev and Mr Tamerlan Tsechoyev have remained unknown ever since.
2. Official investigation into the abduction
As can be seen from the documents furnished to the Court, the investigation into the abduction is taking place within the framework of two different set of criminal proceedings regarding Mr Rashid Ozdoyev and Mr Tamerlan Tsechoyev, respectively.
(a) Criminal proceedings regarding the abduction of Mr Rashid Ozdoyev
Immediately after the abduction the first applicant informed the authorities thereof and requested that a criminal investigation be opened.
On 14 March 2004 the Ingushetia prosecutor’s office (Прокуратура Республики Ингушетия) opened criminal case no. 04800001 under Article 126 of the Criminal Code (abduction).
On 15 March 2004 the investigators questioned the first applicant. He testified that during the morning of 11 March 2004 he and Mr Rashid Ozdoyev had left home to go to work. He had never seen him again. On 13 March 2004 an unidentified man had telephoned him and told him that Mr Rashid Ozdoyev’s VAZ 21099 car was standing covered with canvas on the premises of the FSS. On the following day he had learnt from his son (Mr R.O. – an FSS officer at the material time) that on 11 or 12 March 2004 Mr Rashid Ozdoyev’s car had allegedly collided with a Niva car and a VAZ 2107 car at the Kantyshevskiy intersection in Ingushetia and that gunfire broken out thereafter. He further submitted that shortly before his disappearance, Mr Rashid Ozdoyev had written a report criticising the head of the Ingushetia FSS, General S.K., for engaging in misconduct in the course of his professional activities. Consequently, he (Mr Ozdoyev) might have been abducted by law-enforcement agencies acting on General S.K.’s orders.
On the same date the investigators questioned Mr R.O. (the son of the first applicant), who submitted, in particular, that on the morning of 11 March 2004 Mr Rashid Ozdoyev had left home for work and had not returned. He further stated that during the night of 13-14 March 2004 an unidentified man had called him and told him that at about 11 p.m. on 11 March 2004 he had seen a VAZ 21099 car (with registration numbers indicating that it belonged to Mr Rashid Ozdoyev) blocking the passage of a white VAZ 2107 car at the Kantyshevskiy intersection, next to the traffic police checkpoint. At the same moment, a white Niva car had approached the VAZ 2107 and collided with it. Several men had got out of the Niva car and the VAZ 21099 car, apprehended two men in the VAZ 2107 car and driven away with them in the direction of Nazran. Police officers on duty at the traffic police checkpoint had tried to intervene; however, one of the men from the Niva car had introduced himself as a FSS officer and ordered them to stay away.
On 18 and 20 March 2004 the investigators questioned the police officers who had been on duty on 11 March 2004 at the traffic police checkpoint (Lieutenant M.D. and police officers A.A. and I.I.); these three officers had witnessed the apprehension of the two men (apparently Mr Rasukhan Yevloyev and Mr Ibragim Izmaylov) in the VAZ 2107 car (see also Yevloyeva and Tomova, cited above). They confirmed the circumstances of the event, as specified above; however, they submitted that the VAZ 21099 car had had no registration numbers. According to Lieutenant M.D. and officer I.I., the car had been light-coloured, whereas officer A.A. submitted that the colour had been dark-grey metallic (цвет «мокрый асфальт»).
On an unspecified date the first applicant was granted victim status in the case. He was questioned on 8 October 2004 and provided the investigators with a detailed description – allegedly obtained from the FSS officer Mr R.S., who had directly participated in his son’s abduction – of the circumstances of that abduction. The applicant testified that he had learned from officer R.S. that a special operation in respect of Mr Rashid Ozdoyev’s abduction had been conceived on the orders of the head of the FSS in Ingushetia, General S.K. It had been carried out with the participation of agents from the mobile unit of the Ministry of the Interior (Мобильный отряд МВД России) and the FSS’s Joint Coordination Directorate in Pyatigorsk, Stavropol Region (Объединенное координационное управление ФСБ России в Пятигорске, Ставропольский край). The circumstances of the abduction – according to officer R.S., as summarised by the first applicant – were similar the account of the event that the applicants submitted to the Court. In addition, the applicant provided the investigators with an audiotape recording of officer R.S.’s account of the event. He further submitted that, at his request, the latter had recounted the circumstances of the event in the presence of several witnesses.
On 9 September 2004 and again on 19 December 2005 the investigators seized from the first applicant copies of the audiotape referred to above. It contained a recording of a conversation between several men, including, presumably, the first applicant and officer R.S., who stated, in particular, that on an unspecified date in the evening, on the orders of General S.K. he, with a group of other officers, had taken part in the apprehension and arrest of two men in a dark-green VAZ 21099 car in the vicinity of the village of Achaluki in Ingushetia.
On 14 March 2005 the investigation in respect of the case was suspended for failure to identify the perpetrators. This decision was quashed on an unspecified date in November 2005 following criticism by (and on the orders of) the supervising authorities, and on 6 December 2005 the investigation was resumed. It was again suspended on 6 January 2006.
On 21 December 2005 the investigators questioned Mr S.O., who submitted that he had learned from officer R.S. that the latter had taken part in the arrest of Mr Rashid Ozdoyev in the vicinity of the village of Achaluki, in Ingushetia. He (Mr S.O.) provided the investigators with an account of the circumstances of the abduction which was similar to the account that the applicants submitted to the Court.
On 31 December 2005 the investigators again questioned Mr R.O. He confirmed his previous statement and additionally submitted that some time after the abduction, on 13 or 14 March 2014, some of his colleagues from the FSS had told him that Mr Rashid Ozdoyev’s dark-green VAZ 21099 car and a white Niva car without registration numbers had been parked in the underground garage on the premises of the FSS. On the following day he had gone to the garage, but the VAZ 21099 car had no longer been there. He had seen the Niva car in the garage. The car had been without registration numbers; its left part had been damaged – presumably as a result of a collision with another car; there had been traces of dark-green paint on its damaged parts. He further testified that he had immediately submitted this information to the investigators and had asked them to examine the car as evidence. The investigators had refused his request, stating that nobody would allow them to do that. He also submitted that at the end of March 2004, from a conversation with the FSS officer R.S., he had learned of the circumstances of the special operation regarding Mr Rashid Ozdoyev’s abduction, which had been carried out on the orders of General S.K. by law‑enforcement agencies, including the FSS in Ingushetia. His account of the events was similar to the account that the applicants provided to the Court.
On 16 February 2006 the FSS in Ingushetia, in reply to the investigators’ request to be provided with the CCTV video recordings made on the FSS premises in March 2004, submitted that it was impossible to provide them, as the recordings had not been preserved.
On 28 June 2006 the investigators refused a request submitted by the first applicant to be granted access to the case file and for the investigation to be resumed.
On numerous occasions between 2004 and 2006 the first applicant complained to various State officials and law-enforcement agencies about the abduction and requested assistance in the search for his son. In reply he received letters stating that an investigation in respect of the criminal case was in progress and that operational search measures were being taken to establish his son’s whereabouts.
It appears that the investigation is still pending.
(b) Criminal proceedings regarding the abduction of Mr Tamerlan Tsechoyev
As can be seen from the contents of the application form, on 20 March 2004 the wife of Mr Tamerlan Tsechoyev (Ms P.T.) lodged an official complaint with the domestic authorities alleging that her husband, together with Mr Rashid Ozdoyev, had been abducted on 11 March 2004.
On 2 April 2004 the Ingushetia prosecutor’s office opened criminal case no. 04500012 under Article 126 of the Criminal Code (abduction).
On 14 June 2004 the criminal case was joined with criminal case no. 04500010 (opened on 17 March 2004 in respect of the abduction of Mr Rasukhan Yevloyev and Mr Ibragim Izmaylov) (see Yevloyeva and Tomova, cited above).
On 13 October 2004 the second applicant was granted victim status in the case. The reasoning for that decision stated that Mr Tamerlan Tsechoyev had been abducted at about 10 p.m. on 11 March 2004 at the Volga-14 traffic police checkpoint located at the Kantyshevskiy intersection in Ingushetia by a group of ten armed men wearing camouflage uniforms and balaclavas. The decision further stated that Mr Tamerlan Tsechoyev had been abducted along with Mr Rasukhan Yevloyev and Mr Ibragim Izmaylov.
On 17 December 2004 the investigation in respect of the case was suspended for failure to identify the perpetrators. The investigation was resumed on 1 April 2005, suspended on 1 May 2005, then again resumed on 1 December 2006 and suspended on 31 December 2006.
On 5 December 2005 the Ingushetia Ministry of the Interior issued a report stating, in particular, that Mr Tamerlan Tsechoyev was on a wanted list on suspicion of illegal possession of firearms.
On 25 April, 14 August and 11 September 2006 and again on 28 March 2007 the second applicant requested that the investigators inform him of progress made in the investigation. He also asked them to take certain investigative steps in respect of the case. In reply to the first request the investigators informed him that the investigation in respect of the case had been suspended. His second request was refused.
It appears that the investigation is still pending.
3. Proceedings before domestic courts
On 9 August 2006 the first applicant lodged a complaint with the Nazran District Court in Ingushetia challenging his lack of access to the criminal case file and the investigators’ failure to take basic steps.
On 4 October 2006 the court rejected the applicant’s complaint. On 21 November 2006 the Ingushetia Supreme Court upheld this decision on appeal.
On 1 November 2006 and 16 May 2007 the second applicant lodged a complaint with the same court challenging the decisions of 1 May 2005 and 31 December 2006 to suspend the investigation and the investigators’ inaction in respect of the criminal case.
On 4 December 2006 and 13 June 2007 the court rejected the second applicant’s complaint On 4 August 2007 the Ingushetia Supreme Court upheld that ruling on appeal.
On 2 April 2008 the Malgobek Town Court in Ingushetia declared Mr Rashid Ozdoyev dead at the request of the first applicant and members of his family.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of the right to life of Mr Rashid Ozdoyev and Mr Tamerlan Tsechoyev and submit that the circumstances of their 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 the subsequent disappearance of their close relatives and the State’s failure to conduct an effective investigation into the incident.
The applicants submit that the unacknowledged detention of their relatives 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 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 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 relatives were 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’ relatives’ abduction and ensuing disappearance (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, §§ 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 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 relatives?
(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 relatives 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 relatives 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?
3. Were the applicants’ missing relatives 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. 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 relatives were 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 relatives, 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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