Communicated on 21 June 2019
THIRD SECTION
Application no. 41358/12
Zhanna Askerovna ISMAILOVA and Arslan Dzhabrailovich ISMAILOV
against Russia
lodged on 3 July 2012
STATEMENT OF FACTS
The applicants are:
(1) Ms Zhanna Ismailova and
(2) Mr Arslan Ismailov,
The applicants are Russian nationals, who were born in 1957 and 1977 respectively and live in Makhachkala and Khosrekh. They are represented before the Court by lawyers from the Memorial Human Rights Centre, an NGO based in Moscow, practising in Moscow and London.
The first applicant is the mother of the second applicant, of Mr Rashid Ismailov (born in 1985) and Mr Ruslan Ismailov (born in 1980), who is not the applicant before the Court.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Background information
On 3 May 2012 two vehicles equipped with explosives blew up near “Alaska-30”, a stationary checkpoint of the Dagestan Traffic Police in Makhachkala. Thirteen persons were killed and over 100 were injured.
On 4 May 2012 criminal case no. 26853 was opened into the terrorist act, unlawful possession of explosives and illicit manufacturing of arms under Articles 205, 222 and 223 of the Criminal Code of Russia (“the CC”).
B. Events of 8 May 2012
1. Abduction of Rashid Ismailov
On 8 May 2012 around 10.30 a.m. in Akushinskaya Street in Makhachkala, a group of unidentified armed men in masks abducted Rashid Ismailov near his house. The men arrived on two civilian VAZ-21703 cars (“Lada-Priora” model), one black with the registration number K845РУ05 РУС and another silver-coloured with the registration number К945ЕО05 РУС.
According to the Mr Ismailov’s wife, Ms S.I., who was at home, two men knocked at the door and told her that her husband was being abducted. While she was running outside, she heard a gunshot. She saw several armed men in balaclavas, pushing her husband into the black Priora-car. According to her, soon after the abduction a police officer arrived at the scene and collected cartridges and a holster, left behind by the perpetrators.
Official investigation of the abduction
On 9 May 2012 the first applicant lodged a criminal complaint with the Prosecution Office of Dagestan about the abduction of Rashid Ismailov and the second applicant’s kidnapping and ill-treatment (see below).
On 17 May 2012 the first applicant lodged a complaint about Rashid Ismailov’s abduction with the Head of the Kirovskiy Investigation Department in Makhachkala.
On 21 May 2012 criminal case no. 258367 was opened into the Mr Ismailov’s abduction.
On 22 May 2012 the investigators requested that the Center against Extremism of the Dagestan Ministry of the Interior (“Центр по борьбе с экстремизмом МВД по РД”), the Dagestan Federal Security Service (“the FSB”) and the police department of the Sovetskiy district in Makhachkala informed them whether Rashid Ismailov had been arrested by their officers. The investigators also requested that the Dagestan traffic police provided information on the registration numbers of the cars used by the abductors.
On 25 May 2012 the investigator examined the crime scene. Nothing was collected.
On 28 May 2012 the investigators requested the Head of the Dagestan FSB, the Head of the Center against Extremism and the Head of the Criminal Investigation Department of the Dagestan Ministry of the Interior (“УУГ МВД по РД”) to inform them whether Ismailov was suspected of membership in illegal armed groups.
On 28 and 30 May 2012, the investigators requested that the police assisted them by taking steps, in particular, to check whether Ismailov had been taken to the temporary detention facility (“IVS”) in the Kizlyarskiy district and establish the whereabouts of the VAZ-vehicles and their owners.
The investigator forwarded various information requests to a number of law-enforcement agencies in Dagestan, concerning possible detention of Ismailov or discovery of his body.
On 29 May 2012 the applicant’s wife was granted victim status. She was questioned on the same day. Her statement was similar to the applicants’ submission before the Court.
On 1 June 2012 the FSB informed the investigator that their officers had not arrested Rashid Ismailov.
On 6 June 2012 the investigator questioned the first applicant. Her statement was similar that of Ms S.I. and the applicants’ submission before the Court.
On 8 June 2012 the traffic police informed the investigators that the registration number K845РУ05 РУС was assigned to a UAZ vehicle (snow‑coloured “Patriot” model) belonging to the military unit no. 51410. As for the registration number К945ЕО05 РУС, it had been removed from their registry in 2009 due to the termination of property rights and then assigned to a VAZ-21093 (black) vehicle owned by Mr Kh.-M.A.
On 20 June 2012 the investigators requested the Dagestan Department of the Federal Migration Service whether Rashid Ismailov had a foreign passport.
On 22 June 2012 the investigators requested the Head of the Kirovskiy police department in Makhachkala to stop and check vehicles with K845РУ05 РУС and К945ЕО05 РУС registration numbers.
On the same day the Dagestan FSB informed the investigators that according to their database, Rashid Ismailov was a member of extremist religious group acting in Makhachkala. The department had no information about his whereabouts.
On 25 June 2012 the investigators made various information requests to law-enforcement agencies in the neighbouring region of Ingushetia.
On 26 June 2012 the investigators were informed that Rashid Ismailov had not been detained in the IVS in Kizlyar.
On 27 June 2012 the Center against Extremism informed the investigators that they had no information concerning Rashid Ismailov’s involvement in extremist activities.
2. Kidnapping of the second applicant
At about 3 p.m. on 8 May 2012 a group of unidentified men, some of them in balaclavas and camouflage uniforms, arrived at Kizlyarskaya street in Makhachkala in two, black and light-coloured, VAZ-21703 cars (“Lada‑Priora” model). They grabbed the second applicant on the street near his workplace, knocking him to the ground, twisting his arms behind his back and handcuffing him with plastic handcuffs. Then they forced him in one of the cars and drove in the direction of the Krivaya Balka village.
According to the applicant, they arrived at a house, where the abductors, who addressed each other by numbers, subjected him to ill-treatment. They punched and kicked him, suffocated him with a plastic bag, subjected to electric shocks and asked questions about explosive devices. They also asked him about his brothers. During the ill-treatment one of the abductors mentioned that the applicant’s brother, Rashid, was also “lying down there”, without specifying the place. When the applicant said that he wanted to see Rashid, the abductors replied that he would see him in court, at the trial “when he would be sentenced to 20 years”. Then the perpetrators continued to beat the applicant.
Later in the evening, the abductors blindfolded the applicant and put him in a car. According to the applicant, on the way they stopped at a checkpoint and the perpetrators said to the manning officer that they were from the FSB. Then they stopped near a railway, where the perpetrators pointed at a place in the ground and forced him to dig out a pistol with silencer and a grenade that had been hidden there. After that one of the perpetrators walked him to the road and put him in a taxi. The applicant arrived home around 10 p.m.
Investigation into the second applicant’s apprehension and ill-treatment
On the following day, 9 May 2012, the second applicant was examined by a doctor. He was diagnosed with a craniocerebral injury, fracture of his nose, periorbital hematomas, and hematomas on his neck, bruises and abrasions on his body.
On 10 May 2012 the applicant was examined by a forensic medical expert. According to the examination report no. 1172, the applicant had injuries described by the doctor on 9 May 2012, which had been inflicted by a hard blunt object and an object with uneven surface. The injuries were qualified as minor harm to his health.
On 14 May 2012 the Dagestan Prosecution Office informed the first applicant that her complaint about the second applicant’s abduction and ill‑treatment by unidentified persons had been forwarded to the Leninskiy district prosecutor in Makhachkala.
On 15 May 2012 the Leninskiy district prosecutor forwarded the applicant’s complaint to its Investigative Department.
There is no further information about the investigation of the second applicant’s kidnapping and ill-treatment.
C. Other relevant information
At about 7 p.m. on 22 June 2012 Ruslan Ismailov was detained by the officers of the police in the suburbs of Makhachkala. His arrest record was drawn up on 23 June 2012 at 8.10 p.m.
Ruslan Ismailov was charged with the commission of the terrorist act on 3 May 2012.
D. Proceedings before the Court
On 3 July 2012 the applicants lodged their application with the Court and requested that the Court indicated to the Russian Government under Rule 39 that the following steps be taken: taking of prompt and effective measures to protect Rashid Ismailov against the risk of enforced disappearance and informing the applicants of his whereabouts and the charges against him; reducing the risk of the repeated abduction and ill-treatment for the second applicant; protecting Ruslan Ismailov against ill-treatment and providing him with medical assistance, as well as securing his access to a lawyer. Under Rules 40 and 41 they requested the Court to urgently inform the Russian authorities of the introduction of the application and to grant it priority.
On 6 July 2012 the Court requested the relevant information from the Government.
On 27 July 2012 the Government submitted, inter alia, that the investigation of the abduction was in progress and that they had no information concerning the whereabouts of Rashid Ismailov.
On 23 October 2012 the Court decided not to indicate to the Government the requested interim measures.
E. 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
1. Without directly invoking Article 2 of the Convention the applicants complain about the disappearance of Rashid Ismailov and the failure of the domestic authorities to conduct an effective investigation into the events.
2. The second applicant complains under Article 3 of the Convention that he was ill-treated by law-enforcement Sate agents and that no effective investigation was carried out into the matter.
3. Under Article 5 of the Convention the applicants complain about the unlawfulness of the second applicant’s and Rashid Ismailov’s detention.
4. Relying on Article 13 of the Convention the applicants complain that no effective remedy was available in respect of the alleged violations of the Convention.
QUESTIONS TO THE PARTIES
1. The Government are requested to inform the Court whether on 8 May 2012 Mr Rashid Ismailov was arrested near his house in Akushinskaya Street in Makhachkala, Dagestan. If so, have the persons who detained him been identified and questioned in the context of the investigation into his abduction? If Rashid Ismailov had been arrested, what were legal grounds for his arrest and what happened to him afterwards?
2. The Government are requested to inform the Court whether on 8 May 2012 the second applicant was arrested near his workplace in Kizlyarskaya Street in Makhachkala, Dagestan, by law-enforcement officers.
3. Given the arrest and prosecution of Mr Ruslan Ismailov for the terrorist act committed on 3 May 2012, is there a connection between his arrest, Rashid Ismailov’s abduction and the second applicant’s apprehension?
4. Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of Rashid Ismailov? 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?
5. Was the second applicant subjected to treatment proscribed by Article 3 of the Convention? Having regard to the procedural obligation under this provision (see Lyapin v. Russia, no. 46956/09, §§ 125-40, 24 July 2014), have the domestic authorities carried out an effectively investigation into the matter? Has the second applicant exhausted available domestic remedies in respect of the violations alleged?
6. Were Rashid Ismailov and the second applicant deprived of their liberty, within the meaning of Article 5 § 1 of the Convention? If such detention took place, was it in compliance with the guarantees of Article 5 §§ 1 – 5 of the Convention?
7. 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 Rashid Ismailov and Article 3 of the Convention in respect of the second applicant, as required by Article 13 of the Convention?
8. The Government are requested to submit a copy of the entire investigation file in criminal case no. 258367 instituted in relation to the abduction of Rashid Ismailov, as well as a copy of the entire investigation file and/or the preliminary inquiry/operational search file concerning the second applicant’s ill-treatment and apprehension. They are also invited to include a list of steps, in chronological order, reflecting the actions taken by the authorities in the respective criminal proceedings to date.
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