Lexploria

Communicated on 9 January 2018

THIRD SECTION

Application no. 26220/15 Sheykha MIDAYEV and Others against Russia and four other applications (see list appended)

STATEMENT OF FACTS

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

26220/15

Midayevy v. Russia

2

37575/15

Kanayeva and Others v. Russia

3

28770/16

Yandarbiyeva v. Russia

4

35838/16

Yeseyeva v. Russia

5

37221/16

Mukhayeva and Taysumova 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, Ort s uyeva 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?

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(s)

26220/15

Midayevy v. Russia

First Name

Surname

Sex

Year of Birth

Address

Representative

Kinship to the abducted person(s)

Sheykha

MIDAYEV

M

1949Gudermes , Chechnya

Mothers of Chechnya ( Materi Chechni )

Father

Nagapu

MIDAYEVA

F

1954Gudermes , Chechnya

Mother

Bek -Khan

MIDAYEV

M

1972Gudermes , Chechnya

Brother

Rodimkhan

MUSAYEVA

F

1974Kurchaloy , Chechnya

Sister

Anzhela

DZHAMALUYEVA

F

1987Zimovniki , Rostov Region

Sister

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

Idris

MIDAYEV

M

1976N/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)

26/07/2002

Preparation of a terrorist act in the town

5 pm, in his own house, Gudermes

15-20 armed military men, in camouflage and balaclavas surrounded the house and stormed it. The person ’ s hands were tied and eyes blindfolded.

More than 4 officers (15-20); 4 special vehicles with obscured number plates; special operation announcement; Russian language spoken

N/A

Sweeping

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 Intro of Criminal Complaint

Dates of Decisions to refuse to open the case

Date of the Decision to Open and the Authority

Domestic Criminal Case No. 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

29/07/2002

N/A

6/08/2002, by the Gudermes district prosecutor ’ s office

No.57061 under Art 126 of the CC of RF (abduction)

Belated opening: 11 days after the applicants ’ request, 14 days after the incident; failure to evaluate collected evidence (witness statements).

Reporting the incident within short time-frame (3 days after); mostly maintained contact with authorities and obtained the victim status. Lack of correspondence with the authorities between 2003 and 2010

Several witnesses questioned. The investigation was suspended and resumed on several occasions without attaining tangible results. The applicants were not informed of the progress in the proceedings

Proceedings under Art 125 CCrP : 17/12/2014 Appeal to the Chechnya Supreme Court, negative outcome

Appendix No. 2

App No.

Case Title

Information about the applicant(s)

37575/15

Kanayeva and Others v. Russia

First Name

Surname

Sex

Year of Birth

Address

Representative

Kinship to the abducted person(s)

Khakimat

KANAYEVA

F

1963Grozny, Chechnya

Mr ITSLAYEV, Dokka

Wife

Lalita

DASHAYEVA

F

1995Daughter

Marina

DASHAYEVA

F

2002Daughter

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

Daud

DASHAYEV

M

1956No

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)

04/12/2003

Unknown

Evening, taxi parking place near Central Market of Grozny

The abducted person took 2 passengers as a taxi driver, later all 3 of them disappeared. One witness, found much later, had seen all 3 taken out of the car by military men in uniforms and balaclavas who had driven around in an armoured personnel carrier (APC).

Uniform, balaclavas, military vehicle.

N/A

Unclear

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 Intro of Criminal Complaint

Dates of Decisions to refuse to open the case

Date of the Decision to Open and the Authority

Domestic Criminal Case No. 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

28/03/2004

N/A

11/05/2004 by the Zavodskoy district prosecutor ’ s office in Grozny

No. 31043 under Art 126 of the CC of RF (abduction)

Belated opening: time gap between 28/03/2004 (the applicants ’ complaint) and 11/05/2004, when the criminal case was opened.

The applicant reported the abduction almost 4 months later (on 28/03/2004). The applicant maintained contact with the authorities, victim status granted.

The investigation was suspended and resumed on several occasions without attaining tangible results. The applicants were not informed of the progress in the proceedings

Proceedings under Art 125 of the CCrP RF, 15/04/2015 appeal to the Chechnya Supreme Court, negative outcome.

Appendix No. 3

App No.

Case Title

Information about the applicant(s)

28770/16

Yandarbiyeva v. Russia

First Name

Surname

Sex

Year of Birth

Address

Representative

Kinship to the abducted person(s)

Zargan

YANDARBIYEVA

F

1969Starye Atagi , Chechnya

Mr SHAMSUDINOV, Tagir

Sister

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

Magomed

MUZAYEV

M

1986No

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)

02/11/2004

Unknown

In the evening, from the abducted person ’ s house at 17, Klubnaya Street in Noviye Atagi

A group of armed men in uniform, some of them in balaclavas, arrived in a NIVA a car with license plates no. 850 and a UAZ car to the applicant ’ s house. One of the abductor grabbed the victim and forced him in one of the cars. The victim ’ s wife tried to stop the abductor by getting in the car, but one of the abductors forced her out. There were 4-5 abductors in that car.

More than 4 officers; Uniform; Special vehicles; Russian spoken; checkpoints in the vicinity

Day time

Unclear

Acted openly, without fear of being apprehended, used physical force and were well-organised

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 Intro of Criminal Complaint

Dates of Decisions to refuse to open the case

Date of the Decision to Open and the Authority

Domestic Criminal Case No. 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

3/11/2004

N/A

30 November 2004 by the Shali District Prosecutor ’ s office

No. 36138 under Art 126 of the CC of RF (abduction)

Belated opening (time-frame between lodging of the official complaint - 27 days); Failure to verify information concerning certain officers; Failure to take steps requested by the supervising prosecutor and the applicant; Failure to evaluate collected evidence, such as witness statements and collect vehicle tire prints

Reporting the incident within short time-frame; Submission of evidence by the applicants (physical evidence and witness statements); Maintained contact with the authorities - victim status obtained, info requests and complaints under Art 125 of the CCrP lodged

The investigation was suspended and resumed on several occasions without attaining tangible results. The applicant was not informed of the progress in the proceedings

N/A

Appendix No. 4

App No.

Case Title

Information about the applicant(s)

35838/16

Yeseyeva v. Russia

First Name

Surname

Sex

Year of Birth

Address

Representative

Kinship to the abducted person(s)

Petimat

YESEYEVA

F

1982Urus-Martan , Urus-Martan District, Chechnya

Mr LATYSHOV, Yury

Wife

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

Badruddin

YESEYEV

M

1977No

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)

29/03/2004

Unknown

in the afternoon, Central Market of Grozny, in the vicinity of Pobeda Avenue and Mira Street

A group of armed men in uniform and balaclavas grabbed the applicant and his acquaintance Mr Yusup DAUTMERZAYEV in the street and forced them in a khaki- colored UAZ car. Sacks were pulled over their heads. Mr DAUTMERZAYEV stated that he had been placed in a cellar where he had been beaten unconscious. Then he had been left in a street near the Grozny Central market.

Chain of command; Uniform; Passport check; Special vehicles; Special weapons; Russian spoken

Day time

Identity check

Acted openly, without fear of being apprehended, used physical force and were well-organised

House or building in an unknown location

The abducted person and Mr DAUTMERZAYEV were openly transported by the abductors in the car with the sacks over his heads

Information about the applicant ’ s attempts to bring domestic proceedings in respect of the abduction/detention of the abducted person(s)

Date of Intro of Criminal Complaint

Dates of Decisions to refuse to open the case

Date of the Decision to Open and the Authority

Domestic Criminal Case No. 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

Prior to 19 September 2004

N/A

19 September 2004 by the Zavodskoy District prosecutor ’ s office in Grozny

No. 31080 under Art 126 of the CC of RF (abduction)

Failure to evaluate collected evidence, such as to verify witness statements

Submission of evidence by the applicant; Maintained contact with the authorities and obtained victim status

The investigation was suspended and resumed on several occasions without attaining tangible results. The applicant was not informed of the progress in the proceedings

Compensation proceedings - claim rejected (appellate Judgment of the Chechnya Supreme Court on 8 December 2015).

Appendix No. 5

App No.

Case Title

Information about the applicant

37221/16

Mukhayeva and Taysumova v. Russia

First Name

Surname

Sex

Year of Birth

Address

Representative

Kinship to the abducted person(s)

Ashati

MUKHAYEVA

F

1981Novye Atagi , Shali District, Chechnya

Mr ITSLAYEV, Dokka

Wife

Rayana

TAYSUMOVA

F

2005Novye Atagi , Shali District, Chechnya

Daughter

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

Adam

TAYSUMOV

M

1980No

N/A

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)

27/09/2004

Unknown

7 p.m.at his home in Noviye Atagi , Shali District

A group of armed men in uniform and balaclavas arrived in a KAVZ-model bus with a blue stripe (reg. number contained digits 448, region 95). After taking Mr TAYSUMOV, they drove off in the direction of Grozny.

More than 4 officers; Uniform; Special vehicles; Special weapons; Russian spoken; checkpoints in the vicinity

Day time

Unclear

Acted openly, without fear of being apprehended, used physical force and were well-organised. They had unhindered passage through 2 checkpoints on the way to 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 Intro of Criminal Complaint

Dates of Decisions to refuse to open the case

Date of the Decision to Open and the Authority

Domestic Criminal Case No. 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

Prior to 01/12/2004

N/A

01/12/2004 by the Shali District prosecutor ’ s Office

No. 36140 under Art 126 of the CC of RF (abduction)

Failure to verify information concerning certain officers; failure to take steps as requested by the applicants; failure to verify witness statements

Reporting the incident within short time-frame; maintained contact with the authorities, lodged complaints under Art 125 of the CCrP .

The investigation was suspended on several occasions without attaining tangible results. It was suspended for the last time in May 2015 (the applicant was informed thereof in December 2015). The applicants were not informed of the progress in the proceedings.

N/A

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MIDAYEVY v. RUSSIA and 4 other applications

MIDAYEVY v. RUSSIA and 4 other applications

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