MACHIGOV v. RUSSIA and 5 other applications
Doc ref: 8417/10;11708/11;32771/14;46403/14;53158/15;3779/16 • ECHR ID: 001-181356
Document date: February 5, 2018
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Communicated on 5 February 2018
THIRD SECTION
Application no. 8417/10 Albert Dzhalaudinovich MACHIGOV against Russia and 5 other applications (see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The applicants complained under Article 2 of the Convention that the State agents had been responsible for their relatives ’ abduction and subsequent disappearance and that the authorities had failed to carry out an effective investigation into the matter. Under Article 3 of the Convention, the applicants complained that they had suffered mentally on account of their relatives ’ disappearance and their inability to ascertain their faith as well as the authorities ’ indifference to their complaints and requests for assistance in elucidating the circumstances of the incidents. Under Article 5 of the Convention, the applicants complained that their relatives ’ unlawful detention violated that provision in its entirety and that, in violation of Article 13 of the Convention, they had no effective domestic remedies against the alleged violations of Articles 2 and 3 of the Convention.
The relevant details regarding the applicants ’ allegations and their version of factual circumstances are reflected in the attached appendices.
The table of appendices:
Appendix
Application number
Name of the case
1.
8417/10
Machigov v. Russia
2.
11708/11
Murtazaliyeva and Others v. Russia
3.
32771/14
Edilsultanova and Others v. Russia
4.
46403/14
Saydayeva and Others v. Russia
5.
53158/15
Magomadov and Others v. Russia
6.
3779/16
Bugayeva and Others v. Russia
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 “excessive or unexplained delays” on the applicants ’ part 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 the investigative activity, which could have an impact on the application of the six-month time-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 Sagayeva and Others v. Russia , nos. 22698/09 and 31189/11, §§ 60-62, 8 December 2015)? 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 their relatives ’ abduction.
2. Having regard to:
- previous judgments in which violations of Article 2 of the Convention were found in respect of both the disappearances of applicants ’ relatives as a result of abduction by members of the security forces, and the failure to conduct an effective investigation (see, among recent examples, Ortsuyeva and Others v. Russia , nos. 3340/08 and 24689/10, 22 November 2016 and Kushtova and Others v. Russia (no. 2), no. 60806/08, 21 February 2017); and
- the similarity of the present applications 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 apprehended by State agents?
(b) If so, can the burden of proof be shifted to the Government to provide a satisfactory and convincing explanation of the circumstances of the applicants ’ relatives ’ abduction and ensuing disappearance (see Varnava and Others , cited above, §§ 183-84)? Are the Government in a position to rebut the applicants ’ allegations concerning the State agents ’ involvement in the abductions by submitting documents which are in their exclusive possession, or by providing by other means a satisfactory and convincing explanation of the events?
3. Has the right to life, as guaranteed by Article 2 of the Convention, been violated in respect of the applicants ’ missing relatives?
4. 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 and Aslakhanova and Others v. Russia , nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 217, 18 December 2012), was the investigation conducted by the domestic authorities into the disappearance of the applicants ’ relatives sufficient to meet their obligation to carry out an effective investigation, as required by Article 2 of the Convention?
5. Has the applicants ’ mental suffering in connection with the disappearance of their close relatives and the authorities ’ alleged indifference in that respect and alleged failure to conduct an effective investigation thereof 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, expect for the applicant in Machigov v Russia (no. 8417/10)?
6. Were the applicants ’ missing relatives deprived of their liberty within the meaning of Article 5 § 1 of the Convention? If so, was such a deprivation compatible with the guarantees of Article 5 §§ 1-5 of the Convention?
7. Did the applicants have at their disposal effective domestic remedies in respect of their complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention?
8. 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 agents;
and , in any event,
(b) a complete list of all investigative actions taken in connection with the applicants ’ complaints regarding the disappearance of their missing relatives, in chronological order, 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.
Appendix No. 1
App No.
Case Title
Information about the applicant
8417/10
Machigov
v. Russia
First name
Surname
Sex
Year of birth
Address
Representative
Kinship to the abducted person(s)
Albert
MACHIGOV
M
1966Grozny, Chechnya
Mr Beslan Dautmerzayev , a human rights defender from NIZAM, a community organisation in Chechnya
Brother
Information about the abducted person(s)
First name
Surname
Sex
Yearof birth
Suspected of terrorist activities
Criminal background
Official employment at the time of abduction
Kazbek
MACHIGOV
M
1974N/A
N/A
Unknown
Information about the circumstances of the abduction/detention of the abducted person(s)
Date of apprehension
Alleged reason thereof
Time and place of apprehension
Narrative of the Facts
Relevant circumstances
Other factors
Alleged nature of operation
Information on abductors ’ identity
Places of detention
Any last known information about the abducted person(s)
29/09/2000
Use of drugs
Vicinity of the Central Market in Grozny
On 29/09/2000 Mr Kazbek Machigov , was arrestedon his way to the market by three officers: Mr A.S., Mr A.G. and Mr V.S. on suspicion of alleged drug use and taken in their UAZ vehicle to the Oktyabrskiy district police station in Grozny. He has gone missing since.
Curfew
Identity check
Officers from the Oktyabrskiy district police station Mr A.S., Mr A.G. and Mr V.S.
Vicinity of the Central Market in Grozny
Taken to the Oktyabrskiy district police station, detained in its temporary detention unit
Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)
Date of introduction of criminal complaint
Dates of decisions to refuse to open the case
Date of the decision to open and the authority
Domestic criminal case number and corresponding article of the criminal code
Initial shortcomings in the investigation
Procedural behaviour of the applicant(s)
Brief description of the criminal investigation
Other relevant domestic proceedings
Between 29/08/2000 and 16/10/2011
N/A
On 17/10/2001 the Grozny prosecutor ’ s office
Criminal case no. 12222 under Article 105 of the Criminal Code (murder).
Belated opening of the criminal case, the information on the suspects was not verified right away.
Maintained contact with the authorities, lodged complaints and requests
21/10/2003 two suspected officer, Mr A.S. and Mr A.G., were put on the wanted list. On 15/07/2004 criminal case no. 12222 was joined with criminal case no. 12260 under the number 12260. In November 2005 a separate case no. 61878 against the two officers was severed from case no. 12260. On 30/10//2005 the investigation in case no. 61878 was suspended. On 22/01/2009, the applicant appealed against the suspension and on 10/02/2009 the investigation was resumed. On 24/05/2009 it was suspended again. The proceedings are still pending
N/A
Appendix No. 2
App No.
Case Title
Information about the applicant(s)
11708/11
Murtazaliyeva and Others
v. Russia
First name
Surname
Sex
Year of birth
Address
Representative
Kinship to the abducted person(s)
Isita
MURTAZALIYEVA
F
1946Grozny, Chechnya
Ms Aza TARAMOVA, a human-rights defender
Mother
Ruslan
MURTAZALIYEV
M
1966Brother
Zainap
EGIYEVA
F
1975Spouse
Information about the abducted person(s)
First name
Surname
Sex
Year of birth
Suspected of terrorist activities
Criminal background
Official employment at the time of abduction
Islam
MURTAZALIYEV
M
1974N/A
N/A
Yes
Information about the circumstances of the abduction/detention of the abducted person(s)
Date of apprehension
Alleged reason thereof
Time and place of apprehension
Narrative of the facts
Relevant circumstances
Other factors
Alleged nature of operation
Information on abductors ’ identity
Places of detention
Any last known information about the abducted person(s)
25/11/2002
N/A
Checkpoint near Khankala , the headquarters of the federal military forces, situated in the vicinity of Grozny
On 25/11/2002 Mr Islam MURTAZALIYEV and his acquaintance Mr Adlan (also known as Beslan ) DAUDOV left Gudermes for Grozny in a silver- colored VAZ-21099 car. They were allegedly stopped at a checkpoint next to Khankala and were taken into the military base stationed in that settlement. Several days later a witness spotted Mr DAUDOV ’ s car, but there were other people, of Slavic appearance, driving it. The witness had a short conversation with the men in Mr DAUDOV ’ s car; after that the vehicle drove off into the premises of the Khankala military base. It was further established that Mr MURTAZALIYEV and Mr DAUDOV had been escorted to Khankala upon the orders of Mr A.K., the head of military unit no. 47477.
Identity check at a checkpoint in Khankala
N/A
Identity check
Mr A.K., head of military unit no. 47477
Khankala , checkpoint, near Grozny
N/A
Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)
Date of introduction of criminal complaint
Dates of decisions to refuse to open the case
Date of the decision to open and the authority
Domestic criminal case number and corresponding article of the criminal code
Initial shortcomings in the investigation
Procedural behaviour of the applicant(s)
Brief description of the criminal investigation
Other relevant domestic proceedings
The criminal case was opened on 05/06/2004, unclear when the applicants lodged their complaint
N/A
05/06/2004 the investigator of the Gudermes District prosecutor ’ s office
No. 35036 under Art. 126 (1)1 of the Criminal Code (abduction)
Failure to question the suspect A.K.
There is gap of communication with the authorities amounting to 5 years
On 23/08/2005 the investigation was suspended; on 31/05/2010 it was resumed; then on 01/06/2010 - suspended again; on 09/07/2010 resumed again; the proceedings are still pending
N/A
Appendix No. 3
App No.
Case Title
Information about the applicant(s)
32771/14
Edilsultanova and Others
v. Russia
First name
Surname
Sex
Year of birth
Address
Representative
Kinship to the abducted person(s)
Yakha
EDILSULTANOVA
F
1964Stariye Atagi , in the Grozny District,
Chechnya
Mothers of Chechnya ( Materi Chechni )
Sister
Roza
KALAYEVA
F
1967Sister
Tamara
KALAYEVA
F
1958Sister
Razet
KALAYEVA
F
1969Sister
Eyza
KALAYEVA
F
1940Mother
Information about the abducted person(s)
First name
Surname
Sex
Year of birth
Suspected of terrorist activities
Criminal background
Official employment at the time of abduction
Isa
KALAYEV
M
1975Suspected terrorist
No
No
Information about the circumstances of the abduction/detention of the abducted person(s)
Date of apprehension
Alleged reason thereof
Time and place of apprehension
Narrative of the facts
Relevant circumstances
Other factors
Alleged nature of operation
Information on abductors ’ identity
Places of detention
Any last known information about the abducted person(s)
05/04/2003
Suspected Terrorist
At about midnight on the night between 5 and 6 April 2003. Mr Isa KALAYEV was abducted from the house of his friend H.A. in Michurino ,, the Urus-Martan District, Chechnya and taken to an unknown destination
The abductors were a group of armed military servicemen in camouflage uniforms
Night time; Uniform; Duration less of than 30 min.
N/A
Suspected terrorist
N/A
N/A
N/A
Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)
Date of introduction of criminal complaint
Dates of decisions to refuse to open the case
Date of the decision to open and the authority
Domestic criminal case number and corresponding article of the criminal code
Initial shortcomings in the investigation
Procedural behaviour of the applicant(s)
Brief description of the criminal investigation
Other relevant domestic proceedings
05/04/2003
N/A
24/04/2003, the Urus-Martan District prosecutor ’ s office
Case no. 34048 under Article 126.6 of the Criminal Code (abduction)
Belated crime-scene examination necessitating repeated examinations; Failure to collect evidence; Failure to verify information concerning the abductors ’ identities; failure to evaluate collected evidence – such as to verify witness statements.
Reporting the incident within short time-frame; submission of statements by the applicants; Gap of communication with authorities amounting to 5 years
The investigation consisted only of examination of witnesses; it was suspended on 24/06/2003, 13/08/2012, 06/10/2012 and resumed accordingly on 13/07/2012, 05/10/2012; 05/10/2012; the victim status was granted to one of the sisters of Mr Isa KALAYEV
Unsuccessful complaint under Art. 125 of the Criminal Procedure Code: final decision of 05/02/2014 the Chechnya Supreme Court
Appendix No. 4
App No.
Case Title
Information about the applicant
46403/16
Saydayeva and Others v. Russia
First name
Surname
Sex
Year of birth
Address
Representative
Kinship to the abducted person(s)
Liliya
SAYDAYEVA
F
1946Serzhen -Yurt, Shali District, Chechnya
Mothers of Chechnya ( Materi Chechni )
Mother
Tumisha
SAYDAYEVA
F
1970Tsa-Vedeno , Vedeno District, Chechnya
Sister
Dzhulieta
SAYDAYEVA
F
1980Chiri -Yurt, Shali District, Chechnya
Sister
Asmalika
MUSAYEVA
F
1984Zavodskoy district, Grozny, Chechnya
Sister
Mata
SAYDAYEVA
M
1968Serzhen -Yurt, Shali District, Chechnya
Brother
Information about the abducted person(s)
First name
Surname
Sex
Year of birth
Suspected of terrorist activities
Criminal Background
Official employment at the time of abduction
Beslan
SAYDAYEV
M
1978No
N/A
Yes
Information about the circumstances of the abduction/detention of the abducted person(s)
Date of apprehension
Alleged reason thereof
Time and place of apprehension
Narrative of the facts
Relevant circumstances
Alleged nature of operation
Information on abductors ’ identity
Places of detention
Any last known information about the abducted person(s)
14/07/2001
Unknown
3.00 a.m. in a house in Serzhen -Yurt
A group of at least a dozen of military servicemen broke into the house.
one of them was in balaclava mask. Mr Beslan SAYDAYEV was forced on the floor, his t-shirt was pulled over his head. The applicants were forced out of their house and locked in their neighbor ’ s bathroom. When they managed to set themselves free, Mr Beslan SAYDAYEV had already been taken away.
A large group of servicemen; they acted with chain of command; were in uniform; used radios and had special military weapons. The abduction lasted for less than 30 min; The abductors spoke unaccented Russian and arrived in military; vehicles
Unclear
They acted openly, without fear of being apprehended, used physical force and were well-organised
The applicants alleged that the officers of DON-2 military unit (located in the field between Serzhen -Yurt and Shali ) were involved in the abduction
N/A
Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)
Date of introduction of criminal complaint
Dates of decisions to refuse to open the case
Date of the decision to open and the authority
Domestic criminal case number and corresponding article of the criminal code
Initial shortcomings in the investigation
Procedural behaviour of the applicant(s)
Brief description of the criminal investigation
Other relevant domestic proceedings
16/07/2001
N/A
12/08/2001, the Shali District prosecutor ’ s office
No. 23175 under Art.126 of the CC of RF (abduction), changed to no. 23178 on 15/02/2013
Proceedings were suspended on 12/10/2001, then on 06/12/2006 (unclear what happened in between), 07/09/2013, 31/01/2014, 11/03/2014; the applicants were questioned only in 2013. In 2013 the first applicant, Ms Liliya SAYDAYEVA, had trouble identifying a military officer at photo-identification parade due to the lapse of time. The investigators refused to allow the applicants to make copies of some case documents. The supervisor ’ s instructions concerning elimination of the shortcomings in the investigation given on 17/02/2014 were not complied with
Reporting the incident within short time-frame; the applicant were especially active as of 2013
Investigation of two criminal cases was joined on 15/02/2013 (the abduction of Mr SHERIPOV and the abduction of Mr SAYDAYEV)
Unsuccessful proceedings under Article 125 of the Criminal Procedure Code: decision of 07/05/2014 of the Chechnya Supreme Court
Appendix No. 5
App No.
Case Title
Information about the applicant(s)
53158/15
Magomadov and Others
v. Russia
First name
Surname
Sex
Year of birth
Address
Representative
Kinship to the abducted person(s)
Lema
MAGOMADOV
M
1965Grozny, Chechnya
Ms Tamila KOVRAYEVA, a lawyer from Mothers of Chechnya ( Materi Chechni )
Brother
Abu
MAGOMADOV
M
1938Father
Sovdat
MAGOMADOVA
F
1940Mother
Ayshat
MAGOMADOVA
F
1981Sister
Information about the abducted person(s)
First name
Surname
Sex
Year of birth
Suspected of terrorist activities
Criminal background
Official employment at the time of abduction
Lechi
MAGOMADOV
M
1964No
No
No
Information about the circumstances of the abduction/detention of the abducted person(s)
Date of apprehension
Alleged reason thereof
Time and place of apprehension
Narrative of the facts
Relevant circumstances
Other factors
Alleged nature of operation
Information on abductors ’ identity
Places of detention
Any last known information about the abducted person(s)
02/04/2004
Unknown
Evening, the neighbourhood known as “ Poselok Michurina ” in the vicinity of Gronzy
Mr MAGOMADOV went to visit his friend ’ s mother in another neighbourhood and never returned home. That evening the neighbours saw a small military vehicle driving around in the vicinity.
Unclear
Unclear
Unclear
Allegedly, detained on the premises of the 6th Counter- Organised Crime Unit of the Ministry of the Interior (RUBOP)
N/A
N/A
Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)
Date of introduction of criminal complaint
Dates of decisions to refuse to open the case
Date of the decision to open and the authority
Domestic criminal case number and corresponding article of the criminal code
Initial shortcomings in the investigation
Procedural behaviour of the applicant(s)
Brief description of the criminal investigation
Other relevant domestic proceedings
16/07/2005
On 19/07/2005 the applicant ’ s request for the opening of the criminal case was refused.
10/08/2005, Deputy Public Prosecutor Of Chechnya
No.42102 under Article 126 of the Criminal Code of Russia (abduction)
No information
The official abduction complaint was lodged in about a year after the incident
No meaningful steps taken during the proceedings; lack of contact with the applicants, multiple suspensions: 10/12/2005 (suspended); 06/02/2006 (suspended); 13/04/2006 (suspended); 08/10/2006 (suspended); 30/09/2007 (suspended); 28/12/14 (suspended).
Unsuccessful proceedings under Article 125 challenging the investigation: final decision of 28/04/2015 the Chechnya Supreme Court a
Appendix No. 6
App No.
Case Title
Information about the applicant(s)
3779/16
Bugayeva and Others v. Russia
First name
Surname
Sex
Year of birth
Address
Representative
Kinship to the abducted person(s)
Raisa
BUGAYEVA
F
1974Oyskhara , Gudermes District, Chechnya
Mothers of Chechnya ( Materi Chechni )
Spouse
Khava
SHAKHMURZAYEVA
F
1998Daughter
Fatima
SHAKHMURZAYEVA
F
1999Daughter
Ayshat
SHAKHMURZAYEVA
F
2001Daughter
Dzhabrail
SHAKHMURZAYEV
M
2003Son
Information about the abducted person(s)
First name
Surname
Sex
Year of birth
Suspected of terrorist activities
Criminal background
Official employment at the time of abduction
Salambek
SHAKHMURZAYEV
M
1971Suspected terrorist
Was sought by the police in the Astrakhan Region since 1992
No
Information about the circumstances of the abduction/detention of the abducted person(s)
Date of apprehension
Alleged reason thereof
Time and place of apprehension
Narrative of the facts
Relevant circumstances
Other factors
Alleged nature of operation
Information on abductors ’ identity
Places of detention
Any last known information about the abducted person(s)
23/02/2003
Unknown
3 a. m., at his home in the Gudermes District
Mr Salambek SHAKHMURZAYEV was detained (together with his nephew) at his house by about 10 armed military servicemen. The abductors drove off in two UAZ cars in the direction of Gudermes .
Night time; More than 4 officers; Duration of less than 30 min
N/A
Unclear
N/A
N/A
N/A
Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)
Date of introduction of criminal complaint
Dates of decisions to refuse to open the case
Date of the decision to open and the authority
Domestic criminal case number and corresponding article of the criminal code
Initial shortcomings in the investigation
Procedural behaviour of the applicant(s)
Brief description of the criminal investigation
Other relevant domestic proceedings
07/03/2005
N/A
17/03/2005, the Gudermes District prosecutor ’ s office
Case no. 45007, Art. 126 of the Criminal Code (abduction)
Unclear
It appears that the applicants lodged the official abduction complaint in 2005. There is a gap in communication with the authorities between May 2009 and July 2014
Investigation was suspended on several occasions without attaining any result.
N/A