Communicated on 4 June 2019
THIRD SECTION
Applications nos. 46935/18 and 54931/18
Idris Islanbekovich YELKHOROYEV against Russia
and Zaira Ramazanovna INDIRBAYEVA and Others against Russia
lodged on 12 September 2018 and 8 November 2018 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Idris Yelkhoroyev, is a Russian national, who was born in 1947 and lives in Karabulak, Ingushetia. He is not legally represented before the Court. The applicant is the father of Ms Zalina Yelkhoroyeva, who was born in 1980.
The applicants in the second case are:
(1) Ms Zaira Indirbayeva, who was born in 1986,
(2) Mr Akhmad Chaplayev, who was born in 2005,
(3) Ms Fatima Chaplayeva, who was born in 2006, and
(4) Ms Khava Chaplayeva, who was born in 2010.
The applicants in the second case are Russian nationals and live in Khasavyurt, Dagestan. They are represented before the Court by Ms T.K. Gadayeva, residing in Grozny. The first applicant is the wife of Mr Timur Chaplayev, who was born in 1982, and the other applicants are their children.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Yelkhoroyev v Russia (no. 46935/18)
1. Abduction of Ms Zalina Yelkhoroyeva
On 22 December 2010 Ms Zalina Yelkhoroyeva went to see her brother Mr T.Ye. in the remand prison in Vladikavkaz, North Ossetia-Alania (North Ossetia), about forty five kilometres away from Karabulak. She drove there with his wife Ms L.E. At the prison they found out that Mr T.Ye. had been placed into a military hospital.
On their way back to Karabulak, Ingushetia, the two women drove on the “Kavkaz” highway. Around 4 p.m. near the village of Novoye in the Prigorodnyy district in North Ossetia, about twenty-five kilometres from Karabulak, their car was blocked by four armoured UAZ vehicles and one silver-coloured VAZ-2114 vehicle. A group of armed men in camouflage uniforms and balaclavas emerged from the vehicles. They spoke unaccented Russian. Their uniforms had the traffic police insignia (ГАИ).
The men ordered everyone to get out of the car and asked for documents. As they learned who Zalina Yelkhoroyeva was, they put her in a VAZ-2114 and drove away. Other men ordered Ms L.E. to drive to checkpoint “Chermenskiy Krug” located on the border between Ingushetia and North Ossetia and wait for Ms Yelkhoroyeva there. To the question who they were, the men answered that they were from the Federal Security Service (“FSB”) and the military intelligence (Главное разведывательное управление Министерства обороны РФ).
Shortly thereafter Ms L.E. lodged a complaint with the nearby Mayskoye police department in North Ossetia, on the border with Ingushetia, about the abduction of Ms Yelkhoroyeva.
2. Official inquiry into the abduction
In the following days after the abduction and throughout January 2011 the applicant and Ms L.E. lodged several complaints with the Russia Prosecutor General, the Ingushetia prosecutor and the FSB.
On 7 February 2011 investigators of the Investigations Department in the Prigorodnyy District in the North Ossetia opened criminal case no. 21/1648 under Article 126 § 1 of the Russian Criminal Code (“the CC”) (abduction).
On 10 February 2011 the applicant was granted victim status in the criminal case.
(a) First suspension of the criminal case
On 7 September 2011 the investigation was suspended for the failure to identify perpetrators. The applicant was not informed thereof.
On 4 January and 3 March 2012 the applicant requested information about the investigation and measures taken to establish Ms Yelkhoroyeva’s whereabouts.
On 18 April 2012 the applicant lodged a complaint with the Prigorodnyy District Court in the North Ossetia that he had not been provided with the information by the investigators.
By the final decision of 24 July 2012 the court allowed his complaint and ordered that the investigators re-examined the requests for information.
(b) Second suspension of the criminal case and the court complaints against the investigators
On 17 August 2012 the criminal was again suspended for the failure to identify perpetrators. The applicant was not informed thereof.
(i) First complaint
On 1 October and 9 November 2012 the applicant requested information about the investigation and asked the investigators to requalify the charges under Article 126 § 2 of the CC, that is aggravated abduction, perpetrated by an organised group and with the use of violence.
On 29 November 2012 his request to requalify the charges was dismissed on the grounds that “the evidence did not show that acts of violence had been committed against Ms Yelkhoroyeva”.
On 19 February 2013 the applicant again requested the investigators to requalify the charges. His request was dismissed on 28 February 2013 on the same grounds.
On 11 March 2013 the applicant lodged a complaint with the Prigorodnyy District Court against the refusal to requalify the charges. On 26 April 2013 the court discontinued the proceedings as the charges had been requalified on 24 April 2013 (see below).
On 24 April 2013 the investigators requalified the charges under Article 126 § 2 of the CC.
(ii) Second complaint
On 26 June 2013 the applicant requested the investigators to inform him whether they had made information requests to law-enforcement agencies in Ingushetia and North Ossetia. On 25 July 2013 the applicant complained to the Prigorodnyy District Court about the inactivity of the investigators.
On 9 August 2013 the court partly allowed the complaint finding that the investigators had forwarded information requests to law-enforcement agencies but had failed to inform the applicant thereof.
On 5 September 2013 the applicant requested the investigators to inform him whether officers, who had been on-duty on the “Chermenskiy Krug” checkpoint at the time of the incident, had been questioned.
On 13 September 2013 the applicant was informed that he could familiarise himself with the officers’ statements in the investigators’ office.
(iii) Third complaint
On 11 February 2015 the applicant requested the investigators to inform him about the progress in the investigation and provide him with copies of certain documents.
On 24 February 2015 the investigators partly granted his request.
On 24 March 2015 the applicant complained to the Prigorodnyy District Court against the investigator’s decision to grant the request in part.
On 17 April 2015 the court dismissed his complaint.
On 8 May 2015 the applicant appealed against the court’s decision to the Supreme Court of North Ossetia. The outcome of the proceedings is unknown.
(iv) Complaints to the investigators’ superiors
On 8 May 2015 the applicant requested the investigators to inform him about the steps taken by the investigation.
On 1 June 2015 he was informed that there no new information had been obtained to have the crime resolved.
On 28 July and 18 September 2015 the applicant complained to the investigators’ superior asking to compel the investigators to take steps to find his daughter. On 2 September and 22 October 2015 he was informed that the investigation had been suspended and that all necessary investigative steps had been taken.
On 2 March 2016 the applicant complained to the Chief of the Russia Investigative Committee, Mr Bastrykin, that the investigation was ineffective. On 6 April 2016 he received a reply similar to the one before.
(v) Proceedings against the suspension of the investigation
On 6 June 2017 the applicant complained to the investigators’ superior of the decision of 17 August 2012 to suspend the investigation. On 16 June 2017 his complaint was dismissed as unfounded.
On 4 August 2017 the applicant appealed against the suspension to the Prigorodnyy District Court. On 14 August 2017 the court dismissed his complaint as unsubstantiated.
On 6 September 2017 the applicant appealed against the above decision to the Supreme Court of North Ossetia. On 9 October 2017 his complaint was returned for the failure to comply with the time-limits.
On 23 October 2017 the applicant complained to the President of the Supreme Court about the return of his appeal.
On 14 February 2018 the applicant again complained to the President of the Supreme Court that his complaint of 23 October 2017 had not been examined.
On 12 September 2018 the applicant was informed that his appeal against the decision of 14 August 2017 had been lodged out of time and that he could have made a request to restore the time limit.
From the documents submitted it transpires that the investigation is still pending and the perpetrators of Ms Yelkhoroyeva’s abduction have not been established.
B. Indirbayeva and Others v Russia (no. 54931/18)
1. Abduction of Mr Timur Chaplayev
At about 7.30 p.m. on 1 September 2009 a group of unidentified armed men abducted Timur Chaplayev and Mr A.B. in Kirova Street in Khasavyurt, Dagestan. The abductors forced them into a civilian VAZ-2110 silver-coloured vehicle (“Priora” model) and drove off in unknown direction.
2. Official inquiry into the abduction
On 2 September 2009 Mr Chaplayev’s mother, Ms R.D., lodged a complaint with the police about his abduction.
On 8 September 2009 the investigators of the Khasavyurt Investigations Department opened criminal case no. 910347 under Article 126 § 2 (a) of the CC (aggravated abduction).
(a) First suspension
On an unspecified date between 2009 and 2014 the criminal case was suspended. The applicants and their relatives were not informed thereof.
On 16 July 2014 the investigation in the criminal case was resumed.
(b) Second suspension
On 17 August 2014 the investigation was again suspended for the failure to identify perpetrators.
On 10 June 2015 the investigation was resumed. From the documents submitted it transpires that among other steps, the investigators repeatedly requested information from the Khasavyurt FSB and the Centre against Extremism in Dagestan (“the CPE”) (Центр по Борьбе с Экстремизмом МВД по Республике Дагестан (ЦПЭ)) about possible involvement of Timur Chaplayev and Mr A.B. in illegal armed groups, but to no avail.
(c) Third suspension
On 10 July 2015 the investigation in the criminal case was again suspended.
On an unspecified date the proceedings were resumed and on 19 February 2016 the first applicant was granted victim status in the criminal case.
(d) Fourth suspension
On 19 March 2016 the investigation was suspended again. The FSB and the CPE had informed the investigators that they had not pertinent information on Timur Chaplayev and Mr A.B.
On 11 August 2016 the decision of 19 March 2016 to suspend the investigation was quashed by the supervising prosecutor, who ordered that the investigators analysed connections made from mobile phones of Timur Chaplayev and Mr A.B.
(e) Fifth suspension
On 11 September 2016 the investigation was again suspended and on 22 September 2016 it was resumed.
On 19 February 2018 the decision of 11 September 2016 was quashed by the investigators’ superior, who ordered several investigative steps.
3. Proceedings against the investigators
On 14 June 2017 the first applicant requested the investigators to provide her with copies of documents from the investigation file, but to no avail.
On 10 October 2017 she lodged a complaint with the Khasavyurt Town Court about the investigators’ inaction, stating, amongst other things, that the investigators had told her that the investigation file had been lost.
On 20 February 2018 the court discontinued the proceedings as the suspension of 11 September 2016 had been overruled. At the same time, the court issued a special ruling in respect of the investigators finding that they had failed to take steps ordered by their superior on 11 August 2016.
On 28 February 2018 the applicant appealed against the above decision stating that the suspension of 11 September 2016 had been overruled only after she had complained to the court.
On 8 May 2018 the Supreme Court of Dagestan dismissed her appeal as unfounded.
C. 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
The applicants complain under Article 2 of the Convention about the disappearance of Ms Zalina Yelkhoroyeva and Mr Timur Chaplayev as a result of actions of State agents and the failure of the domestic authorities to conduct an effectively investigate the matter.
Relying on Article 3 of the Convention the applicants complain that they suffer severe mental distress due to the indifference demonstrated by the authorities in respect of the abductions and subsequent disappearance of their relatives and the failure to conduct an effective investigation into the disappearances.
Under Article 5 of the Convention the applicants complain about the unlawfulness of their relatives’ detention.
Relying on Article 13 of the Convention the applicants complain that no effective remedy was available in respect of the alleged violations of Articles 2, 3 and 5 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants made out prima facie cases that Ms Zalina Yelkhoroyeva and Mr Timur Chaplayev disappeared as a result of State servicemen’s actions? 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’ disappearance (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 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 disappearances by submitting documents which are in their exclusive possession or by providing by other means a satisfactory and convincing explanation of the events?
2. Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of Ms Zalina Yelkhoroyeva and Mr Timur Chaplayev? 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 cases by the domestic authorities been sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?
3. Has the applicants’ mental suffering in connection with the disappearance of their relatives and the authorities’ alleged indifference in that respect and alleged failure to conduct an effective investigation into the matter been sufficiently serious 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?
4. Were Ms Zalina Yelkhoroyeva and Mr Timur Chaplayev 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?
5. Have the applicants had at their disposal effective domestic remedies in relation to the alleged violation of Article 2, 3 and 5 of the Convention, as required by Article 13 of the Convention?
6. The Government are requested to submit copies of the entire investigation files in criminal cases nos. 21/1648 and 910347 instituted in relation to the disappearance of Ms Zalina Yelkhoroyeva and Mr Timur Chaplayev. They are also invited to include a list of steps, in chronological order, reflecting the actions taken by the authorities in the criminal proceedings to date.
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