CASE OF KHACHUKAYEVY v. RUSSIA
Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)
Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants are: (1) Ms Elita Khachukayeva, who was born in 1972 and lives in Goyty, Chechnya; (2) Ms Khadizhat Khachukayeva, who was born in 1998 and lives in Alkhan-Yurt, Chechnya; (3) Ms Kheda Khachukayeva, who was born in 2001 and lives in UrusMartan, Chechnya. The applicants are the wife and daughters of Mr Islam Deniyev, who was born in 1966. 6. At the material time the applicants and Mr Islam Deniyev lived in the village of Alkhan-Yurt in the Urus-Martan District, Chechnya. The village was situated along a major highway known as “Kavkaz”, part of the road between Rostov in Russia and Baku in Azerbaijan, which has several permanent military roadblocks posted along it. It was impossible to drive on the highway without being checked and information from the check being entered into a log. One permanent roadblock was situated about three kilometres to the east of Alkhan-Yurt, at the junction with the road towards Grozny, the main city in Chechnya. This road block was commonly referred to as “Chernorechensky” (also spelled as “Chernorechye”), after the name of a nearby suburb of Grozny. 7. On 24 November 2000 Mr Islam Deniyev drove to Gudermes with his friends Mr Sayd-Akhmed S., a resident of Martan-Chu, and Mr Khizir A., a resident of Alkhan-Yurt, in the latter’s Toyota Land Cruiser car. The vehicle’s licence plate number was A999BK95, which was easily recognisable because of the three nines. 8. At about 11 a.m. on 24 November 2000 a group of Alkhan-Yurt residents were passing through the Chernorechensky roadblock by bus and saw Mr Khizir A.’s Toyota Land Cruiser car there. Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were standing next to the vehicle, surrounded by members of the military. Nearby were some armoured military vehicles (BMP) and UAZ cars. According to two unnamed witnesses, who had also been stopped at the roadblock at the same time, they and Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. were taken to the military unit’s headquarters in the village of Tangi-Chu. 9. The applicants have not seen Mr Islam Deniyev since 24 November 2000. They were not eyewitnesses to the abduction. Their submission to the Court was based on the first applicant’s complaints and requests to various State authorities, a witness statement by Mr R.V. dated July 2007 and copies of documents from the criminal investigation file. 10. The applicants learnt about the detention of Mr Islam Deniyev, Mr Sayd-Akhmed S. and Mr Khizir A. later on the day of 24 November 2000 from the bus passengers, but were not worried at first, as they presumed that the three men had been stopped for a routine identity check. They were also reassured by Mr R.V., the head of the Alkhan-Yurt village administration at the time, who said that there was no need to worry as all three men were law-abiding citizens. 11. Several days later, at the end of November 2000, Mr R.Sh. saw Mr Khizir A.’s Toyota Land Cruiser car in a military convoy, passing through a roadblock over the Terek river in the village of Chervlenaya, about twenty kilometres to the north of Grozny. Mr R.Sh. was later questioned by the prosecutor’s office (see paragraph 25 below). 12. In March 2001 a friend of the missing men, Mr Kh.G., spotted the licence plate from Mr Khizir A.’s Toyota Land Cruiser car on a military vehicle and informed the investigation of this (see paragraph 19 below). The serviceman driving the vehicle was subsequently questioned and stated that he had recovered it at the roadblock (see paragraph 21 below). 13. On an unspecified date in August 2001 the applicants learned that the blown-up shell of a Toyota Land Cruiser had been found in the north of Chechnya, in the Naurskiy District. The car was identified as the one belonging to Mr Khizir A. 14. On 21 November 2002 the remains of three bodies and items of clothing were found in the forest near the village of Darbankhi (also spelled as Darban-Khi), near the Darbankhi-Vinogradnoye road in the north of the Grozny district. Relatives of the abducted men subsequently identified some of the clothing as belonging to the missing men (see paragraphs 28-29 below). 15. On 30 September 2003 the Urus-Martan Town Court declared Mr Islam Deniyev a missing person, at the request of his sister Ms A.D. On 17 November 2006 she was appointed as the legal guardian of the second and third applicants. 16. On 7 December 2000 (in the documents submitted the date is also stated as 16 January 2001) the first applicant and relatives of Mr SaydAkhmed S. and Mr Khizir A. complained about the abduction of the men at the roadblock to several law-enforcement agencies. They described the circumstances of the incident and stressed that their relatives had most probably been detained by officers of the Federal Security Service (hereinafter “the FSB”) (Федеральная служба безопасности (ФСБ)) or the Main Intelligence Service (hereinafter “the GRU”) (Главное разведывательное управление (ГРУ)) and that their own search for the abducted men had not produced any results. 17. On 6 February 2001 the Grozny prosecutor’s office (hereinafter “the prosecutor’s office”) opened criminal case no. 13023. The decision stated, among other things, the following: “... On 24 November 2000, at about 11 a.m., on the Rostov-Baku highway at the former roadblock of the Chernorechensky [traffic police] post unidentified persons detained and took away [Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S.] to an unknown destination...” 18. On 13 February 2001 Chechnya’s Deputy Minister of the Interior wrote to the Chechnya prosecutor providing details of the abduction which were similar to the applicants’ account before the Court and asking to be informed whether the abducted men had been arrested and, if so, on what charges. The letter also stated that there were witnesses to the abduction. 19. On 21 March 2001 the investigators questioned Mr Kh.G., who stated that on 17 March 2001 he had seen a grey UAZ with the registration number A999BK95 and that a group of military servicemen had been next to it. He had recalled immediately that the plate had belonged to Mr Khizir. A.’s Toyota Land Cruiser and asked the driver of the vehicle where he had got it. The driver told him that he had received it from Mr R.E., the driver of the head of the Grozny district department of the interior (hereinafter “the Grozny ROVD”) (Грозненский районный отдел внутренних дел (РОВД)), who had obtained it from a military serviceman stationed in the settlement of Chervlenaya. The witness had taken the plate from the driver and on 20 March 2001 handed it over to the investigators. 20. On 22 March 2001, investigators questioned the driver of the head of the Grozny ROVD, Mr R.E., who stated that he had obtained the licence plate with the registration number of Mr Khizir. A.’s car in December 2000 from a military serviceman at the Chernorechensky roadblock. 21. On 22 March 2001, investigators questioned a serviceman, Mr P.V., who stated that he had found the licence plate with the A999BK95 registration number when he was manning the Chernorechensky roadblock in December 2000 and had handed the plate over to the policemen who had taken over from him at the roadblock. 22. On 6 April 2001 the investigation in the criminal case was suspended on account of the failure to identify the perpetrators. 23. On 18 May 2001 the supervising prosecutor overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken. 24. On 28 May 2001 the proceedings were resumed, before being suspended again on 28 June 2001. 25. On 18 October 2001 the investigators questioned Mr R.Sh. who stated that on or around 25 November 2000 he had been crossing the roadblock over the Terek river in the village of Chervlenaya, when he had seen a military convoy which included Mr Khizir A.’s Toyota Land Cruiser. The car, which had been moving among at least ten military vehicles, was being driven by a tall red-headed man in a special black military uniform with a bullet-proof vest. 26. On 4 March 2002 the deputy prosecutor of Grozny overruled the decision to suspend the investigation as premature and unlawful and ordered that further steps be taken. In particular, he pointed out the following: “The examination of the case file shows that the investigation has been carried out in an extremely superficial manner and without any plan. ... To this date, none of the victims’ relatives have been questioned or granted the procedural status as the relative of a victim, [the investigator] has contented himself with sending formal requests to various bodies and receiving equally formal replies. ... It is necessary to question family members and close friends about the missing men’s lives, work and social activities ..., to receive a reply from the military prosecutor’s office of the [Northern Caucasus Military Circuit], to question in detail the witness who found the missing car in the forest ..., to question once again the witness [R.Sh.] who saw the vehicle in a military convoy going over the Terek bridge in the village of Chervlenaya ..., to take all the necessary steps to identify the military unit which passed over the bridge at that time. The witness has highlighted the large number of vehicles in the convoy, so it would appear to be quite possible to clarify this question. If positive replies are obtained a visit should be planned to the location of the military unit to find out more about the fate of the missing car.” 27. Following the discovery of the remains of three people (see paragraph 14 above) on 21 November 2002 (in the documents submitted the date is also referred to as 11 October 2002), the Grozny district prosecutor’s office opened criminal case no. 56184 on 28 November 2002. 28. On 28 November 2002 the investigators in criminal case no. 56184 questioned the brother of Mr Islam Deniyev, Mr A.D., who described the circumstances of the abduction at the roadblock and stated that some of the items of clothing found with the remains of the bodies resembled clothing worn by Mr Islam Deniyev on the date of his abduction. On the same date, Mr A.D. officially identified several items of the clothing as belonging to Mr Islam Deniyev. 29. On 29 November 2002 the investigators in criminal case no. 56184 questioned the wife of Mr Sayd-Akhmed S., Ms M.S., who described the circumstances of the abduction at the roadblock and then identified several items of the clothing as belonging to her missing husband, Mr Sayd Akhmed S. 30. On 28 April and then again on 6 June 2003, the supervising prosecutors criticised the investigation and ordered that the investigators take the steps which had been ordered previously. The documents submitted in the case show that none of the steps were taken, apart from granting victim status to some of the relatives of the men who had disappeared. 31. On 15 December 2002 the investigators ordered a complex forensic examination of the human remains (see paragraph 27 above). On 20 February 2004 the experts concluded that they belonged to people with different blood groups. They came to no conclusion about a possible cause of death. 32. On 29 November 2004 the investigators ordered a genetic test of the fragments. Blood samples were collected from the relatives of Mr Islam Deniyev, Mr Khizir A. and Mr Sayd-Akhmed S. 33. On 30 December 2004 the genetic test report showed that the remains belonged to Mr Islam Deniyev, Mr Khizir A. and Mr SaydAkhmed S. 34. Despite the genetic test results of 30 November 2004, the initial investigation into the abduction of the three men in criminal case no. 13023 continued until 25 March 2008 and referred to them as “missing”. 35. On 18 December 2006 the first applicant was granted the status of a victim in criminal case no. 13023 and questioned. She stated that she had learnt of her husband’s abduction by servicemen at the roadblock from her relatives. 36. On 20 December 2006 the investigators again questioned Mr A.D., who reiterated his previous statement and added that he and his relatives had found the burnt Toyota Land Cruiser car in 2001 (see paragraphs 13 and 28 above). 37. On 20 and 26 December 2006 the investigators questioned Ms A.D., who stated that her brother, Mr Islam Deniyev, and his friends, Mr SaydAkhmed S. and Mr Khizir A., had been abducted at the roadblock by officers of the GRU. The witness added that she was taking care of the second and third applicants. 38. On 15 January 2007 the first applicant asked the investigators to provide her with unrestricted access to the investigation file. On 7 February 2007 the investigators granted her request in part, stating that she was allowed to access only the documents which referred to proceedings she had been involved in. 39. On 13 July 2007 the investigators questioned Ms Z.E., who stated that on 24 November 2000 her nephew, Mr Khizir A., and his two friends, Mr Islam Deniyev and Mr Sayd-Akhmed S., had been abducted by federal servicemen at the roadblock. She also submitted that on that date Mr Khizir A. had left home with a large sum of money as he had intended to buy a car. 40. On 25 March 2008 the investigators combined the abduction case (no. 13023) and the murder case (no. 56184) into one file (no. 13023). The Grozny department of the investigation committee was put in charge of the investigation and the applicants were informed of these developments. 41. The case file shows that between 2001 and 2007 the investigators requested information on the possible whereabouts of the abducted men from the military units stationed in the region at the time, as well as from detention centres, hospitals, law-enforcement agencies and correctional facilities. For the most part, they received no answer and the replies that did come in were negative. 42. Between 2001 and 2008 the investigation in criminal case no. 13023 was suspended and resumed on at least nine occasions. Each suspension of the proceedings was overruled by the supervising body as premature and unlawful. The last suspension took place on 24 April 2008, but the investigation was resumed on 18 February 2012. It is still pending. 43. In March 2007 the first applicant appealed to the Zavodskoy District Court in Grozny against the investigators’ refusal to provide her with unrestricted access to file no. 13023. She sought a ruling obliging the investigators to provide her with full access, to resume the investigation, which had been suspended, and to carry it out in an effective manner. She also asked for free legal counsel to assist her in the proceedings. 44. On 25 January 2008 the Zavodskoy District Court allowed the complaint in part. The applicant appealed. On 27 February 2008 the Chechnya Supreme Court granted the request for full access to the case file. The request for free legal assistance was dismissed for lack of grounds in domestic law. 47. The applicants maintained that it was beyond reasonable doubt that the men who had taken away and then killed Mr Islam Deniyev had been State agents. In support of that assertion they referred to the ample evidence contained in their submissions and the criminal investigation file. They submitted that they had made a prima facie case that their relative had been abducted and killed by State agents and that the essential facts underlying their complaint had not been challenged by the Government. 48. The Government did not contest the essential facts as presented by the applicants. At the same time, they claimed that the investigation had not obtained information proving that State agents had been involved in the detention or killing of the applicants’ relative. 49. A number of principles have been developed by the Court when it has been faced with the task of establishing the facts of events on which the parties disagree (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; and such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII, and Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII). 50. The Court has dealt with a whole series of cases concerning allegations of disappearances and killings in Chechnya. Applying the abovementioned principles, it has concluded that if applicants make a prima facie case of abduction and killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing any documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Tovsultanova v. Russia, no. 26974/06, §§ 7781, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 51. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 18, 26, 28-29, 35 and 37 above) demonstrate that Mr Islam Deniyev was detained on 24 November 2000 at the roadblock by a group of armed servicemen and that his remains were discovered about two years later, in November 2002 (see paragraphs 27 and 33 above). 52. The next point to be considered is whether there is a causal link between the detention of Mr Islam Deniyev by State servicemen at the roadblock and his death. The Court reiterates in this connection that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, such as in cases where persons are under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many authorities, Avşar, cited above § 392). 53. In the present case there was no news of Mr Islam Deniyev between his detention on 24 November 2000 at the roadblock and the discovery of his remains in November 2002. The Court also notes that although a forensic expert examination was carried out on the remains, it failed to establish the cause of his death (see paragraph 31 above). 54. The Government did not dispute the circumstances of the discovery of the remains. The link between the detention and the death of Mr Islam Deniyev was, moreover, assumed in the domestic proceedings as the investigations into the abduction and the death were joined (see paragraph 40 above). The Government did not provide any substantiated version of the events to refute the version presented by the applicants. 55. The Court finds that the facts of the present case strongly suggest that the death of Mr Islam Deniyev was part of the same sequence of events as his abduction and support the conclusion that he was executed extrajudicially by State agents. In these circumstances, the Court finds that the State is responsible for the death of the applicants’ relative. 56. For the above reasons the Court considers that it has been established that Mr Islam Deniyev was killed following his unacknowledged detention by State servicemen.