Communicated on 5 September 2016
THIRD SECTION
Application no. 11542/15
Patimat PASHAYEVA and Madina MUSAITOVA
against Russia
lodged on 19 February 2015
STATEMENT OF FACTS
The applicants are Ms Patimat (also spelled as Petimat) Pashayeva (“the first applicant”) and Ms Madina Musaitova (“the second applicant”) who were born in 1954 and 1979 and live in Vedeno and Grozny respectively. They are represented before the Court by Materi Chechni, an NGO based in Chechnya.
The first applicant is the mother of Mr Salambek Taysumov who was born in 1985. The second applicant is his cousin.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Salambek Taysumov
At about 6 p.m. on 5 June 2004 Mr Taysumov was on a street in Vedeno, Chechnya, when armed servicemen in balaclavas arrested him, forced him into an UAZ minivan (tabletka) without registration numbers and drove off to an unknown destination.
The whereabouts of Mr Taysumov have remained unknown ever since.
2. Official investigation into the abduction
On 2 September 2004 the Vedeno district prosecutor’s office (Прокуратура Веденского района Чеченской Республики) opened criminal case no 43034 under Article 126 of the Criminal Code (abduction).
On 13 September 2004 the first applicant was granted victim status in the case.
On 2 November 2004 the investigation in the case was suspended for failure to identify the perpetrators. This decision was quashed on 27 November 2006 and the proceedings were resumed. They were again suspended on 27 January 2007 and subsequently resumed on 18 August 2014.
Between February 2008 and June 2009, and again in March 2014, the first applicant and the Materi Chechni NGO complained to various state officials and law-enforcement agencies about the abduction and asked for assistance in the search for Mr Taysumov. In reply they received letters stating that their complaint had been forwarded to yet another law-enforcement agency for further processing or that operational search activities were still in progress to establish Mr Taysumov’s whereabouts.
On 13 February 2014 the first applicant requested that the investigators inform her about progress in the proceedings and grant her access to the criminal case file. The outcome of this request is unknown.
It appears that the investigation is still pending.
3. Proceedings against the investigators
On 14 August 2014 the first applicant lodged a complaint before the Vedeno District Court challenging the decision of 27 January 2007 to suspend the proceedings and the investigators’ failure to take basic steps.
On 22 August 2014 the court rejected the complaint, having found that on 18 August 2014 the investigators had already resumed the proceedings. On 30 September 2014 the Chechnya Supreme Court upheld this decision on appeal.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of the right to life of Mr Taysumov 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 due to 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 complaints under Articles 2 and 5 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 Court after the abduction of their relative, 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 and Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, ECHR 31 May 2016)? The applicants are invited to provide explanations for the delay in lodging their application with the Court, as well as copies of documents reflecting their correspondence 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 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, cited above, §§ 181-84; 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?
2. 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 their disappearance been sufficiently serious to amount as 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 5 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 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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