Communicated on 5 September 2016
THIRD SECTION
Application no. 70571/13
Baret TEMIRSULTANOVA and Kiysa TEMIRSULTANOVA
against Russia
lodged on 15 October 2013
STATEMENT OF FACTS
The applicants are Ms Baret Temirsultanova and Ms Kiysa Temirsultanova, who were born in 1959 and live in Tsotsi-Yurt (also spelled as Tsotsin-Yurt), Chechnya. They are represented before the Court by Mr Tagir Shamsudinov, an advocate practising in Grozny.
The first applicant is the wife of Mr Khuseyn (also spelled as Khusayn) Temirsultanov, who was born in 1952. The second applicant is the wife of Mr Khasan (also spelled as Khaseyn) Temirsultanov and the mother of Mr Movldi Temirsultanov, who were born in 1956 and 1981 respectively.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of the Temirsultanov brothers and Mr Movldi Temirsultanov
At about 12.15 a.m. on 5 March 2001 (in the documents submitted the date was also indicated as 4 March 2001) a group of about thirty armed servicemen in camouflage uniforms arrived at the applicants’ houses at 50 Gagarina Street in Tsotsi-Yurt in armoured personnel carriers (APCs). The servicemen spoke unaccented Russian and were wearing military helmets; some of them were wearing balaclavas. Having broken into the applicants’ houses, which were located next to each other and shared the same courtyard, the servicemen forced Mr Khuseyn Temirsultanov, Mr Khasan Temirsultanov and Mr Movldi Temirsultanov outside, then put them into one of the APCs and drove off to an unknown destination.
The whereabouts of the applicants’ relatives have remained unknown ever since. Their abduction took place in the presence of the applicants and their neighbours.
2. Official investigation into the abduction
In the morning on 5 March 2001 the applicants went to the Kurchaloy district commander’s office (Комендатура Курчалоевкого района Чеченской Республики) and reported the incident.
On 14 August 2001 the Argun inter-district prosecutor’s office (Аргунская межрайонная прокуратура Чеченской Республики) opened criminal case no. 39058 under Article 126 of the Criminal Code (abduction).
On an unspecified date in 2001 (the date is illegible) the investigators questioned the first applicant. Her statement before the investigators was similar to the account of the events that she provided to the Court.
On 14 October 2001 the investigation was suspended for failure to identify the perpetrators. This decision was quashed on 24 March 2005 and the proceedings were resumed. The investigation was again suspended on 24 April 2005. The applicants were informed about this decision by a letter that stated, in particular, that although the investigation in the case had been suspended, operational search activities to establish the missing persons’ whereabouts were still ongoing. Subsequently, the investigation was resumed on 15 March 2010, suspended on 17 May 2010, again resumed on 26 July 2011 and 13 September 2011, suspended on 26 August 2011 and 13 October 2011, and then again resumed on 24 January 2012.
On 27 March 2005 the investigators inspected the crime scene. No evidence was collected.
Between 27 and 28 March 2005 a number of witnesses, including the applicants, were questioned. The witnesses submitted that on the night of 4‑5 March 2001 they had either heard the sound of heavy military vehicles outside or had seen APCs and a large group of armed servicemen in military uniforms next to the Temirsultanovs’ family houses. The applicants and their daughters, Ms M.T. and Ms K.T., submitted that they had directly witnessed the abduction. Their statements about the circumstances of the event were similar to the accounts that they submitted to the Court.
On 28 March 2005 the second applicant was granted victim status in the case.
On 9 April 2005, and again in March 2010, the investigators requested that a number of law-enforcement agencies and medical institutions inform them of whether they had arrested or detained the applicants’ missing relatives or whether they had provided medical aid to them. No affirmative reply was received.
On 4 March 2010 the first applicant requested that the investigators inform her about the progress made in the criminal proceedings. The outcome of this request is unknown.
On 3 and 4 May 2010 the investigators again questioned the applicants and the first applicant’s daughter Ms M.T. They reiterated their previous statements concerning the circumstances of the abduction.
On 3 May 2010 the investigators seized from the first applicant several items of clothes belonging to her missing husband and ordered that an expert forensic biological examination of the items be carried out. The examination did not yield any genetic traces.
On 8 August 2011 the investigators again inspected the crime scene.
On 24 and 25 August 2011 several witnesses were questioned. The content of their statements is unclear, as the records submitted are incomplete.
On 8 April 2013 the first applicant requested that the investigators inform her about progress in the criminal case. In reply she received a letter stating that she was free to appear at the investigators’ office in person and to familiarise herself with the case material.
It appears that the investigation is still pending.
COMPLAINTS
Relying on Article 2 of the Convention, the applicants complain of a violation of the right to life of Mr Khuseyn Temirsultanov, Mr Khasan Temirsultanov and Mr Movldi Temirsultanov 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 due to the indifference demonstrated by the authorities in respect of the abduction and 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. 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 relatives, and have there been considerable lapses of time or significant delays and lulls in 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 relatives.
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 their 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, cited above, §§ 181-84, 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 their 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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