Постановление ЕСПЧ от 08.12.2015 Дело Сагаева и другие (Sagayeva and Others) против России (жалобы N 22698/09 и 31189/11) англ.

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION
CASE OF SAGAYEVA AND OTHERS v. RUSSIA
(Applications nos. 22698/09 and 31189/11)
JUDGMENT <*>
(Strasbourg, 8.XII.2015)
———————————

<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sagayeva and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis  Guerra, President,
Helena ,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 17 November 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE

 

  1. The case originated in two applications (nos. 22698/09 and 31189/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms («the Convention») by the Russian nationals listed below («the applicants»), on 17 April 2009 and 12 May 2011 respectively.
  2. The applicants were represented by lawyers from the Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with a representative office in Russia (in partnership with the NGO Astreya). The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
  3. The applicants alleged that their relatives had been abducted by State agents in Chechnya and that no effective investigation had been carried out into the matter.
  4. On 3 November 2011 the applications were communicated to the Government.

 

THE FACTS

  1. The circumstances of the case
  1. Application no. 22698/09, Sagayeva v. Russia

 

  1. The applicant, Ms Khava Sagayeva, was born in 1964 and lives in Urus-Martan in the Urus-Martan district, the Chechen Republic.
  2. The applicant is the sister of Mr Khasan Sagayev, who was born in 1973.

 

  1. Abduction of Mr Khasan Sagayev and subsequent events

 

  1. At the material time the applicant lived in Alkhan-Yurt (in the documents submitted it is also referred to as Alkhan-Kala), in the Urus-Martan district in Chechnya. In August 2000 Mr Khasan Sagayev, along with a number of other relatives, was living in the applicant’s house while she was away in Ingushetia.
  2. At around 12 p.m. on 8 August 2000 a group of about twenty to thirty masked and armed servicemen in camouflage uniforms arrived at the applicant’s house in two armoured personnel carriers (APCs) and several UAZ minivans. They broke into the house and quickly searched the premises, taking away all documents and family photographs. They forced Mr Khasan Sagayev into the APC with registration number 802 and drove away to an unknown destination.
  3. Later on the same day, 8 August 2000, at the request of the applicant’s relatives, Mr Supyan Mokhchayev, the Mayor of Grozny, contacted a military commander, who informed him that APC no. 802 belonged to a military regiment stationed at the Main Federal Military Base in Khankala. Mr Mokhchayev also learnt from anonymous witnesses that Mr Khasan Sagayev had been taken to the military base in Khankala and questioned by three investigators.
  4. The applicant has not seen Mr Khasan Sagayev since his abduction on 8 August 2000.
  5. The applicant did not witness the abduction. Her account before the Court was based on statements provided by her relatives and neighbours.
  6. The Government did not contest the facts as presented by the applicant, but pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident.

 

  1. Main steps taken by the official investigation into the abduction

 

  1. From the documents submitted it can be seen that the applicant lodged an official complaint concerning her brother’s abduction on 14 December 2000.
  2. On 14 April 2001 the Urus-Martan district prosecutor’s office opened criminal case no. 25040 (in the documents submitted, the case is also referred to as no. 78012).
  3. On 20 June 2001 the investigation was suspended. The applicant was not informed of this development.
  4. The investigation remained suspended from 20 June 2001 to 19 January 2009. From the documents submitted it is apparent that the applicant did not contact the authorities at any time during this period. The applicant has stated that between 2001 and 2008 she was ill and her sister, Ms Kh.S., maintained correspondence with the authorities, both personally and through the International Committee of the Red Cross and the human rights organisations Memorial and Materi Chechni (Mothers of Chechnya). The Government did not dispute this part of the applicant’s submission.
  5. On 20 November 2008 the applicant asked to be granted victim status in the criminal case.
  6. On 19 January 2009, in response to a request from the applicant, the investigation was resumed.
  7. On the same date, 19 January 2009, the investigators granted the applicant victim status in the criminal proceedings and questioned her. She stated that she had not witnessed the abduction herself but had learnt of it from her relatives.
  8. On 21 January 2009 the applicant requested permission to access the entire contents of the investigation file. The investigators rejected her request on 2 February 2009.
  9. On 22 January 2009 the investigators questioned the applicant’s sister, Ms A.S., who stated that she had not witnessed the abduction either but had learnt of it from her relatives.
  10. On 22 January 2009 the investigators questioned another of the applicant’s sisters, Ms Kh.S., who described the circumstances of the abduction. Her statement was similar to the applicant’s account before the Court.
  11. On 19 February 2009 the criminal proceedings were suspended. The applicant was informed thereof.
  12. On 23 March 2009 the investigation was resumed and the applicant was informed thereof.
  13. Between 25 and 29 March 2009 the investigators questioned three of the applicant’s fellow villagers, whose statements did not provide any new information as they had not witnessed the abduction.
  14. On 1 April 2009 the investigators examined the crime scene. No evidence was collected.
  15. On 9 April 2009 the investigators questioned a local police officer, Mr A. A., who stated that the police had been unable to establish the whereabouts of the applicant’s missing brother.
  16. On 10 June 2010 the applicant asked the investigators to update her on the progress of the investigation and on 25 August 2010 she was informed that the proceedings remained suspended.
  17. The investigation into the abduction was subsequently repeatedly suspended and resumed; the last suspension took place on 6 October 2011. The proceedings are still pending.

 

  1. Application no. 31189/11, Mukayevy v. Russia

 

  1. The applicants, Ms Roza Mukayeva, who was born in 1959, and Mr Khamzat Mukayev, who was born in 1956, live in the village of Duba-Yurt in the Shali district, the Chechen Republic.
  2. The applicants are the parents of Mr Rasul Mukayev, who was born in 1979.

 

  1. Abduction of Mr Rasul Mukayev

 

  1. At the material time Mr Rasul Mukayev was suffering from a second-degree disability. The applicants claimed in their submission that he had been detained during «sweeping-up» operations carried out in Duba-Yurt in 2001, 2002 and 2003 and released.
  2. In 2004 the village was surrounded by numerous checkpoints. Two checkpoints were located in the vicinity of the applicants’ house in Duba-Yurt.
  3. On 3 December 2004 at around 5 a.m. an APC arrived at the applicants’ house. Another APC and two UAZ minivans were waiting in a neighbouring street. A group of eight to ten armed servicemen in masks and camouflage uniforms broke into the house. Threatening the applicants in unaccented Russian, they searched the house, handcuffed Mr Rasul Mukayev, pulled his T-shirt over his head and forced him outside, where one of them reported to someone via portable radio: «The object is taken. We are leaving». The servicemen told the applicants that they were taking Mr Rasul Mukayev to the Shali district department of the interior (the ROVD).
  4. The applicants subsequently learnt from anonymous witnesses that their son had allegedly been taken to the Main Federal Military Base in Khankala.
  5. The applicants have not seen Mr Rasul Mukayev since 3 December 2004.
  6. The Government did not contest the facts as presented by the applicants, but pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident.

 

  1. Main steps taken by the official investigation into the abduction

 

  1. On 3 December 2004 an investigation team examined the crime scene.
  2. On 3 December 2004 the investigators questioned the first applicant, whose statement was similar to the applicants’ account before the Court.
  3. On 3 December 2004 the investigators questioned the applicants’ relative, Mr R.Kh., and their neighbour, Mr S.N., whose statements concerning the abduction were similar to the applicants’ account before the Court.
  4. On 23 December 2004 the Shali district prosecutor’s office opened criminal case no. 36148.
  5. On 23 February 2005 the investigation was suspended. The applicants were not informed of this development.
  6. On 27 May 2005 the investigation was resumed following criticism from the supervising prosecutor, who gave orders for the basic steps to be undertaken.
  7. On 2 July 2005 the investigation granted the second applicant victim status in the criminal case.
  8. On 2 July 2005 the investigators questioned the second applicant, whose statement concerning the abduction was similar to the applicants’ account before the Court. In addition, he stated that he had followed the abductors and had seen them driving in the direction of the federal forces’ main military base in Khankala.
  9. On 7 July 2005 the investigation was again suspended and the applicants again not informed.
  10. On 21 September 2010 the first applicant asked the investigators to grant him permission to access the entire contents of the investigation file. On 12 November 2010 the investigators partially granted the request by providing twelve documents from the file.
  11. On 20 December 2011 the investigation was resumed following a corresponding request from the applicants. The proceedings are still pending.

 

  1. Relevant domestic law

 

  1. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43 — 59 and §§ 69 — 84, 18 December 2012).

 

THE LAW

 

  1. The Court will deal with the procedural matters in the case before considering the applicants’ complaints concerning the abduction of their relatives and the allegedly ineffective investigation.

 

  1. Joinder of the applications

 

  1. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

 

  1. Compliance with the six-month rule
  1. The parties’ submissions
  1. Government

 

  1. In respect of Sagayeva (no. 22698/09), the Government submitted in their initial observations on the admissibility and merits that the applicant had complied with the six-month time-limit. However, in their additional observations, they stated that she had failed to demonstrate «the requisite amount of diligence and initiative» in contacting the authorities to justify the belated lodging of her application with the Court.
  2. In respect of Mukayevy (no. 31189/11) the Government submitted that, in the absence of a final domestic decision, the six-month time-limit did not apply in that case.

 

  1. The applicants

 

  1. The applicants in both applications submitted that they had taken all possible steps within reasonable time-limits to initiate the search for their missing relatives and to assist the authorities in the proceedings. They submitted that there had been no excessive or unexplained delays in submitting their applications to the Court and that they had lodged their complaints as soon as they had become convinced of ineffectiveness of the investigations into the abduction of their relatives.
  2. The applicants in both cases further contended that they had been unaware of the possibility of bringing an application to Strasbourg until the Court delivered its first judgments concerning disappearances in the Chechen Republic (the first one was delivered in July 2006 in the case of Bazorkina v. Russia, no. 69481/01, 27 July 2006), which allowed them to gauge the success of such an application. In addition, owing to their lack of legal knowledge and sufficient funds to hire a lawyer, they had been unable to assess the effectiveness of the pending criminal proceedings. Furthermore, due to the climate of fear which reigned in Chechnya at the material time, they had been afraid to complain to Strasbourg and had done so only after the Government announced the end of the counter-terrorist operation in April 2009.
  3. Referring to 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, ECHR 2009), the applicants argued that the six-month rule did not apply to ongoing situations of enforced disappearance and that in any event they had introduced their applications within nine years of the abduction in Sagayeva (no. 22698/09) and within seven years in Mukayevy (no. 31189/11), each of which appeared to be a reasonable time-frame in the circumstances. They stated that they had maintained contact with the authorities and that there had been no significant lapses of time or delays or lulls in the investigation which might have had an impact on the application of the six-month time-limit.

 

  1. The Court’s assessment
  1. General principles

 

  1. Although the respondent Government did not raise any objection under this head concerning the Mukayevy application (no. 31189/11), this issue calls for the Court’s consideration proprio motu (see v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011).
  2. A summary of the principles concerning compliance with the six-month rule in disappearance cases may be found in Sultygov and Others v. Russia, nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11, §§ 369 — 74, 9 October 2014).

 

  1. Application of the principles to the present case

 

  1. Turning to the circumstances of the instant applications, the Court notes that the investigations were pending when the applicants lodged their applications with the Court and are still pending. The Court notes that the applicants complained to the authorities after the abductions and lodged their applications with the Court within a period of less then ten years after the incidents and the initiation of the investigations (see Varnava and Others, cited above, § 166).
  2. The Court observes the siginificant lulls in the criminal proceedings comprising almost six and a half years in Mukayevy (no. 31189/11) (see paragraphs 46 and 48 above) and more than seven and a half years in Sagayeva (no. 22698/09) (see paragraph 16 above). It further observes that the applicants were not informed of the suspension decisions preceding the lulls in the investigations and that the proceedings were resumed in response to the applicants’ or their relatives’ requests to this effect (see paragraphs 16, 18 and 48 above).
  3. The Court notes that such long periods of inactivity on the part of the authorities could have cast doubt on the effectiveness of the pending investigation and could have compelled the applicants to lodge their applications with the Court at an earlier date. However, the Court notes the authorities’ failure to provide the applicants with information concerning the investigation (see paragraph 20 above), including the decisions to suspend it (see paragraphs 15, 42, 46 and 47 above).
  4. From the documents submitted it is apparent that the applicants did all that could be expected of them to assist the authorities with the investigation into their relatives’ disappearance. The Court further notes that the authorities resumed the investigations upon the applicants’ requests (see paragraphs 18 and 48 above). Taking into account the applicants’ explanations concerning their compliance with the six-month rule and their efforts to revive the dormant proceedings (see paragraphs 16, 17, 18 and 47 above), and having regard to the complexity of the cases and the nature of the alleged human rights violations at stake, the Court concludes that it was reasonable for the applicants to wait for developments that could have resolved crucial factual or legal issues (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 142, ECHR 2012). Therefore, the Court considers that the lulls occurring in the domestic investigations cannot be held against the applicants and interpreted as a failure to comply with the six-month requirement by unreasonably waiting for the pending investigation to yield results.
  5. The Court thus finds that an investigation, albeit a sporadic one, was being conducted during the period in question and that the applicants explained the delay in their applications to the Court by the way in which the domestic proceedings developed (see Varnava and Others, cited above, § 166). In the light of the foregoing, the Court finds that the applicants complied with the six-month time-limit.

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