TABUYEVA AND OTHERS v. GEORGIA

Published on 26 February 2024

SECOND SECTION

Application no. 40279/11
Roza Akhmatovna TABUYEVA and Others
against Georgia
lodged on 23 June 2011
communicated on 6 February 2024

SUBJECT MATTER OF THE CASE

The application concerns the arrest and either subsequent disappearance or a period of acknowledged detention of three prisoners of war (hereinafter “the PoWs”) – R. Ikayev, who was the husband and son of, respectively, the first and second applicants, and S. Lokhov and A. Bazayev, who are the third and fourth applicants in the present case (see the appendix). The PoWs were Russian nationals of Ossetian origin who resided in South Ossetia (a region of Georgia which is currently outside the de facto control of the Georgian Government).

R. Ikayev and the third and fourth applicants were arrested by the Georgian armed forces near Tskhinvali on 8 and 9 August 2008, in the first days of the international armed conflict that had taken place between the Russian Federation and Georgia. The arrested men were members of the South‑Ossetian militia that had participated in the conflict on the side of the Russian military forces (compare Georgia v. Russia (II) [GC], no. 38263/08, § 182, 21 January 2021). Whilst the third and fourth applicants were released and handed over, together with dozens of other Russian prisoners of war, to the Russian side on 24 August 2008 in a prisoner exchange, the whereabouts of R. Ikayev become unknown as of 22 August 2008.

On 6 May 2009 the applicants, represented by a group of Georgian lawyers, addressed the Ministries of the Interior and Defence of Georgia, requesting initiation of criminal investigations into (i) the circumstances surrounding the disappearance of R. Ikayev and (ii) the arbitrary detention of the third and fourth applicants as well as their alleged ill-treatment at the hands of the Georgian authorities in the period between 9 and 24 August 2008. On 20 and 25 May 2009 the authorities replied that they did not possess information about R. Ikayev’s whereabouts and that no criminal investigation into the other issues raised by the applicants had been opened so far.

The applicants’ lawyers then started, as of April 2010, insisting before the Chief Public Prosecutor’s Office (“the CPPO”) that the authority should launch criminal investigations into the unlawful detention and ill‑treatment of applicants nos. 3-4 and disappearance of R. Ikayev. Eventually, after a number of confusing replies from the authority, on 7 December 2010 the CPPO informed the applicants in a clear manner that the authority had been conducting a large-scale criminal investigation into possible breaches of international humanitarian law committed during the Russo‑Georgian hostilities of 8-12 August 2008 and that the specific question of whether or not any war crimes had been committed in relation to R. Ikayev and applicants 3-4 in particular would be examined within the scope of that general investigation.

Subsequently, the applicants’ lawyers filed with the prosecution authority several enquiries about the progress in the investigation, but the CPPO’s standard answer was that the investigation was ongoing and that a number of important measures were still to be undertaken. According to the latest factual update from the applicants, dated 27 October 2015, the criminal investigation into the disappearance of R. Ikayev and arbitrary detention and ill‑treatment of applicants 3-4 was in an early procedural stage and still ongoing.

The first and second applicants complained under Articles 2, 3 and 13 of the Convention, both in their own name and on behalf of their missing relative, about the disappearance of R. Ikayev at the hands of the Georgian authorities and the absence of an effective investigation into the matter. The third and fourth applicants complained under Articles 3, 5 and 13 of the Convention about the unlawfulness of their detention in the period between 9 and 24 August 2008 and the absence of an effective investigation into their allegations of ill-treatment.

QUESTIONS TO THE PARTIES

1.  Having regard to the circumstances surrounding the arrest of R. Ikayev on 8 August 2008 by the Georgian armed forces and his subsequent disappearance, has there been a violation of Articles 2 and 3 of the Convention, these complaints being lodged by applicants nos. 1 and 2 in their own name as well as on behalf of their missing relative (compare, amongst others, Alpatu Israilova v. Russia, no. 15438/05, §§ 46-71, 14 March 2013)?

2.  Were applicants nos. 3 and 4 arbitrarily detained and ill-treated at the hands of the Georgian authorities in the period between 9 and 24 August 2008, in breach of Articles 3 and 5 of the Convention (compare Badalyan v. Azerbaijan, no. 51295/11, §§ 37-48 and 56-57, 22 July 2021)?

3.  Having regard to the procedural obligations under Articles 2 and 3 of the Convention, as well as to the requirements under Article 13 in relation to the relevant applicants’ complaints about the disappearance and ill-treatment during detention, have the competent domestic authorities conducted an effective criminal investigation into the matter (compare, amongst many others, Meryem Çelik and Others v. Turkey, no. 3598/03, §§ 70-78, 16 April 2013)?

APPENDIX

List of applicants: