Communicated on 23 February 2017

THIRD SECTION

Application no. 42976/15 Yakha SADULAYEVA and Khazhi SADULAYEV against Russia lodged on 11 August 2015

STATEMENT OF FACTS

The applicants are Ms Yakha Sadulayeva and Mr Khazhi Sadulayev , who were born in 1963 and 1983 respectively and live in Kalinovskaya , Chechnya. They are represented before the Court by the non-governmental organisation (NGO) Materi Chechni , practising in Chechnya.

The first applicant is the wife of Mr Zayndi Sadulayev , who was born in 1960. The second applicant is his son.

The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Abduction of Mr Zayndi Sadulayev

At the material time Mr Zayndi Sadulayev worked as an artillery attendant at the Russian military base in Khankala , Chechnya.

At about 4 p.m. on 24 January 2003 (in the documents submitted the date was also referred to as 23 and 21 January 2003) Mr Sadulayev and his colleagues Sh.I ., S.M. and R.M. were passing through checkpoint no. 2 ( КПП №2 ), located at the Khankala exit, when military servicemen manning the checkpoint stopped them for an identity check. Having checked Mr Zayndi Sadulayev ’ s passport, the servicemen arrested him and escorted him onto the premises of the checkpoint for further questioning.

The whereabouts of Mr Zayndi Sadulayev have remained unknown ever since.

2. Official investigation into the abduction

On 9 February 2003 the first applicant informed the authorities about the abduction and requested that criminal proceedings be opened.

On 19 August 2004 the military prosecutor ’ s office of military unit no. 20102 ( Военная прокуратура – войсковая часть 20102 ) refused to open a criminal case, referring to the absence of a criminal event.

On 20 August 2004 the first applicant was questioned. She stated that Mr Zayndi Sadulayev had disappeared after his detention by military servicemen at the checkpoint in Khankala .

On 14 September 2004 the first applicant complained to the Oktyabrskiy district department of the interior in Grozny ( Октябрьский РОВД г. Грозный ) regarding the abduction.

On 13 October 2004 the acting prosecutor of the Oktyabrskiy district prosecutor ’ s office in Grozny, D.K., in his letter to the military prosecutor of military unit no. 20102, pointed to a number of flaws in the preliminary inquiry into Mr. Zayndi Sadulayev ’ s abduction.

On 12 August 2005 the first applicant was questioned again. She reiterated what she had said in her previous statements concerning the circumstances of the abduction.

On the same date a witness, L.I., was questioned. Her statements regarding the circumstances of the abduction were similar to those of the applicants.

On 20 August 2005 the Grozny district prosecutor ’ s office ( Прокуратура Грозненского района Чеченской Республики ) opened criminal case no. 44350 under Article 105 of the Criminal Code (murder).

On 29 August and 9 September 2005 investigators questioned Sh.I ., S.M. and R.M. They confirmed that they had witnessed Mr Sadulayev ’ s arrest in January 2003 by military servicemen at the checkpoint in Khankala , and provided detailed information about the servicemen who had effected the arrest. Sh.I . stated additionally that, upon his return to work on the following day, he had learned from a colleague, Kh.D ., that Mr Zayndi Sadulayev had been released and had left the checkpoint. However, nobody had seen him since.

On 8 September 2005 the investigators questioned two more witnesses, Z.S. and S.Sh ., who gave statements similar to those of the applicants.

On 6 October 2005 the first applicant was granted victim status in the case.

On 20 November 2005 the investigation was suspended for failure to identify the perpetrators. Subsequently, it was resumed on 29 April 2008, suspended on 30 May 2008 and resumed again on an unspecified date in March 2015.

On 12 May 2008 the investigators questioned the first applicant again. She confirmed her previous statements.

On 27 May 2014 the first applicant requested that the investigators inform her about the progress in the criminal case and give her access to the case file. The outcome of that request is unknown.

On 7 January 2015 the NGO Materi Chechni asked a number of law ‑ enforcement agencies and state officials to provide assistance in the search for Mr Sadulayev . The outcome of those requests is unknown.

It appears that the investigation is still ongoing.

3. Proceedings in the domestic courts

On 15 January 2015 the first applicant lodged a civil claim, seeking compensation for non-pecuniary damage sustained as a result of the alleged abduction of her husband by State agents.

On 26 February 2015 the Leninskiy District Court in Grozny dismissed the claim as unfounded.

On 11 March 2015, before the Grozny District Court, the first applicant challenged the decision of 30 May 2008 to suspend the criminal proceedings and the investigators ’ failure to take basic investigative steps.

On 30 March 2015 the court rejected the complaint, having found that earlier in March 2015 the investigators had already resumed the proceedings. On 29 April 2015 the Chechnya Supreme Court upheld the above decision on appeal.

COMPLAINTS

Relying on Article 2 of the Convention, the applicants complain of a violation of Mr Zayndi Sadulayev ’ s right to life, 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.

Invoking Article 3 of the Convention, the applicants complain 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 of 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 “excessive or unexplained delays” on the applicants ’ part in submitting their complaints to 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 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)? 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 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 to provide 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? 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 alleged failure to conduct an effective investigation into the disappearance 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. Was the applicants ’ missing relative deprived of his 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?

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 of all investigative actions taken in connection with the applicants ’ complaints regarding the disappearance of their missing relative, 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.