Communicated on 19 September 2016
THIRD SECTION
Application no. 29541/14
Kilsani YUSHAYEVA and others
against Russia
lodged on 31 March 2014
STATEMENT OF FACTS
The applicants are:
1) Ms Kilsani Yushayeva, who was born in 1954;
2) Ms Luiza Yushayeva, who was born in 1978; and
3) Ms Larisa Yushayeva, who was born in 1979.
The first applicant lives in the village of Oyskhar, Chechnya; she is the mother of Mr Kazbek Yushayev, who was born in 1974. The second and third applicants live in Grozny and Ilskhan-Yurt, Chechnya, respectively. They are the sisters of Mr Kazbek Yushayev.
The applicants are represented before the Court by Materi Chechni, an NGO based in Grozny.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Kazbek Yushayev
On 23 February 2003 Mr Yushayev was at his relatives’ house at 21 Sovetskaya Street in the village of Oyskhar, Chechnya, when at approximately 3 a.m. a group of about ten armed servicemen in white camouflage uniforms arrived in two UAZ (tabletka) minivans without registration numbers. The servicemen were of Asian appearance and spoke unaccented Russian; some of them were wearing balaclavas. They made a forced entry into the house, arrested Mr Yushayeva and his relative, Mr S.Sh., put them into one of the vehicles and drove away to an unknown destination.
The whereabouts of Mr Yushayev have remained unknown since the date of his abduction.
2. Official investigation into the abduction
On 7 March 2005 the wife of Mr S.Sh., Ms R.B., informed the authorities of the abduction and requested that a criminal case be opened.
On the same date the police inspected the crime scene and interviewed Ms R.B. Her submission regarding the circumstances of the abduction was similar to the account of the event that the applicants provided to the Court. In addition, she stated that her husband, Mr S.Sh., had been a former member of illegal armed groups and that the police had placed him on a wanted list. She further testified that Mr S.Sh. had already (in June 2002) been arrested by law-enforcement agencies but had been released. Two days before the abduction officers from the Gudermes district department of the interior had visited him at home.
A number of relatives and neighbours, who were interviewed on the same date and then questioned on 24 and 25 March 2005 and in July 2005, attested to the abduction of Mr Yushayev and Mr S.Sh. from the latter’s house by armed servicemen in camouflage uniforms.
On 17 March 2005 the Gudermes district prosecutor’s office (прокуратура Гудермесского района Чеченской Республики) opened criminal case no. 45007 under Article 126 of the Criminal Code (abduction).
On 24 March 2005 the investigators questioned Ms R.B., who confirmed her previous statement and provided details of the abduction similar to those specified above.
On the same date the first applicant was granted victim status in the case and questioned. She submitted that she had not directly witnessed the abduction but had learned about the incident from relatives. Her statement to the investigators regarding the circumstances of the abduction was similar to the account that she submitted to the Court.
On 17 May 2005 the investigation in respect of the case was suspended for failure to identify the perpetrators. This decision was quashed by the supervising authorities on 2 June 2005 and the investigation was resumed. Subsequently, it was again suspended on 2 July 2005, 10 July 2006, 1 August 2007 and 15 May 2008 and resumed on 29 May 2006, 1 July 2007, 7 April 2008 and 10 September 2013.
On 12 June 2006 the investigators again questioned the first applicant. She confirmed her previous statement.
On 28 June 2012 the second applicant was granted victim status in the case.
It appears that the investigation is still pending.
3. Proceedings against the investigators
On an unspecified date in 2013 the second applicant lodged a complaint with the Gudermes Town Court challenging the decision of 15 May 2008 to suspend the proceedings.
On 11 September 2013 the court rejected the complaint, having found that on 10 September 2013 the investigators had already resumed the investigation. On 22 October 2013 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 Yushayev 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 on account of 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 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 domestic authorities and the Court after the abduction of their relative and 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)? The applicants are invited to provide an explanation for the delay in lodging their complaint with the domestic authorities and the Court, and to provide copies of their correspondence (and related documents) 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 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 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, 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 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?
3. 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 the 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?
4. 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 under Article 5 §§ 1-5 of the Convention?
5. 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?
6. 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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