Communicated on 5 September 2016
THIRD SECTION
Application no. 62822/15
Larisa IZHAYEVA and others
against Russia
lodged on 1 December 2015
STATEMENT OF FACTS
The applicants are:
1) Ms Larisa Izhayeva, who was born in 1973;
2) Mr Khamzat Gerikhanov, who was born in 1998;
3) Ms Madina Gerikhanova, who was born in 2001;
4) Ms Nura Ilyasova, who was born in 1951; and
5) Ms Aset Kasumova, who was born in 1948.
The applicants live in Grozny; they are represented before the Court by Materi Chechni, an NGO based in Chechnya.
The first applicant is the wife of Mr Ruslan Gerikhanov, who was born in 1974. The second and third applicants are his children, and the fourth and fifth applicants are his sisters.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Abduction of Mr Ruslan Gerikhanov
At about 4.30 a.m. on 14 July 2003 a group of ten to twelve armed servicemen in camouflage uniforms and balaclavas arrived at the applicants’ house at 94 Voronezhskaya Street in Grozny in two UAZ minivans (tabletka) and a Volga car. The vehicles’ registration numbers were covered with mud. The servicemen spoke unaccented Russian and used portable radio sets. They broke into the applicants’ house, forced all those present onto the floor and searched the premises. Having checked Mr Gerikhanov’s passport, they forced him outside, put him into one of the UAZ minivans and drove off to an unknown destination.
One of the servicemen lost a bullet while reloading his machine gun in the courtyard of the applicants’ house during the operation. The applicants found the bullet and submitted it to the investigators (see below).
The whereabouts of Mr Gerikhanov have remained unknown ever since.
2. Official investigation into the abduction
Immediately after the abduction the first applicant informed the authorities of the abduction and requested that criminal proceedings be opened.
On 14 July 2003 investigators from the Zavodskoy district prosecutor’s office (Прокуратура Заводского района г. Грозный) examined the crime scene. The bullet found in the courtyard of the applicants’ house was seized as evidence.
On 26 July 2003 the prosecutor’s office opened criminal case no. 30124 under Article 126 of the Criminal Code (abduction).
On 6 August 2003 the first applicant was granted victim status and questioned. Her statement to the investigators was similar to that which she gave to the Court.
On 7 August 2003 the investigators questioned an eyewitness, Mr M.K. He gave the investigators an account of the events that was similar to that detailed above.
On 26 September 2003 the investigation in the case was suspended for failure to identify the perpetrators. Subsequently the investigation was resumed and suspended on numerous occasions: it was resumed on 28 June 2004, 14 June 2005, 13 April 2006, 8 November 2007, 30 October 2008, 5 August 2013 and 27 April 2015, and suspended on 28 July 2004, 28 July 2005, 14 May 2006, 12 December 2007, 30 November 2008, and 20 January 2015.
On 21 July 2004 and on 11 December 2007 the investigators again questioned the first applicant. She reiterated her previous statement.
On 14 and 22 June 2005 and again on 17 April 2006 the investigators informed the father of the disappeared man – Mr B.G. – that an investigation and operational search activities were underway to establish his son’s whereabouts.
On 28 July 2005 the investigators questioned Mr B.G., who gave a statement regarding the circumstances of the abduction that was similar to that given by the applicants. Mr B.G. additionally stated that about a year after the abduction he had learned from unidentified sources that his missing son had been shown in a TV programme broadcast on the Russian television channel NTV. In the programme he had been depicted as among those members of certain illegal armed groups that were due to be included in an amnesty.
On 24 February 2006 and on 27 August 2008 Mr B.G. asked a number of State officials for assistance in the search for his son. In reply he was informed, in particular, that in the light of flaws in the investigation of the abduction, the investigators had been ordered to resume the proceedings and to remedy those failures.
On 16 March 2011 and on 23 July 2013 the first applicant asked the investigators to grant her access to the criminal case file and to resume proceedings in the case. The outcome of those requests is unknown.
On 6 May 2011 the Materi Chechni NGO asked a number of State officials and law-enforcement agencies for assistance in the search for Mr Gerikhanov. In reply they received letters stating that their request had been forwarded to yet another law-enforcement agency for further processing.
On 20 January 2015 the fourth applicant was granted victim status in the case.
It appears that the investigation is still pending.
3. Proceedings against the investigators
On 25 July 2013 the first applicant lodged a complaint before the Zavodskoy District Court in Grozny challenging the decision of 30 November 2008 to suspend the investigation and the investigators’ failure to take basic investigative steps. The outcome of those proceedings is unknown.
On 16 April 2015 the fourth applicant challenged before the same court the decision of 20 January 2015 to suspend the criminal proceedings.
On 30 April 2015 the court rejected the complaint, having found that on 27 April 2015 the investigators had already resumed the proceedings. On 2 June 2015 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 Gerikhanov 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 due to 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 Court after the abduction of their relative, 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 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 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 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; 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. Have 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 Articles 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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