CASE OF SAYDULKHANOVA v. RUSSIA
No 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)
Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1958 and lives in Grozny. She is the mother of Mr Muslim Saydulkhanov, who was born in 1982. 6. At the material time the applicant and her family, including Mr Muslim Saydulkhanov, lived in Vedeno, Chechnya. Checkpoints were located on the roads leading to and from the settlement which was situated at high altitude. Since January 2002 Mr Muslim Saydulkhanov worked as a policeman at the Argun district department of the interior (“the Argun ROVD”) providing security in the building of the Vedeno district department of the State Pension Fund (the Pension Fund). The applicant’s husband was the head of the Pension Fund. 7. According to the applicant, on an unspecified date in September 2002 Mr Muslim Saydulkhanov was abducted by a group of servicemen from the ‘Vostok’ battalion of the Russian federal forces which was staffed by ethnic Chechens under the command of Mr Sulim Yamadayev. The applicant’s son was apprehended on the suspicion of membership in illegal armed groups and released on the following day upon payment of ransom. 8. On or around 7 or 8 January 2004 a group of men in camouflage uniforms had arrived at the Pension Fund’s building and asked the on-duty colleagues of Mr Muslim Saydulkhanov, Mr A.M. and Mr. D. Kh., to show them their identity documents saying that they were from the Yamadayev’s battalion and were checking the posts. The men were looking for Mr Muslim Saydulkhanov. 9. At about 7.30 a.m. on 13 January 2004 a grey UAZ vehicle with three Chechen armed men in camouflage uniforms arrived at the Pension Fund. The men asked the on-duty servicemen Mr A.M. and Mr. D. Kh. at what time employees of the fund came to work. When the on-duty officers asked them to show their identity documents, the men refused and said that they were checking the posts. 10. On 13 January 2004 Mr Muslim Saydulkhanov was at work at the Pension Fund. He was supposed to be on the overnight duty until the morning of 14 January 2004. At about 5 p.m. he went home to have dinner. At about 6 p.m. he left home with his service gun to return to work and disappeared on the way to the Pension Fund. 11. In the morning of 14 January 2004 the applicant’s husband went to work and found out that his son was missing. He immediately started searching for him. At about 1 p.m. the applicant was informed by the head of the Vedeno district administration Mr Pashayev that Mr Muslim Saydulkhanov had allegedly been detained at the Vedeno military commander’s office where he had been taken in the evening of 13 January 2004 for an identity check. 12. On or around 20 January 2004 the applicant and her husband went to Gudermes, Chechnya, to visit the head of the ‘Vostok’ battalion, Mr Sulim Yamadayev. The latter promised to assist them in the search for their son in exchange for 10,000 American dollars (USD). The applicant explained to him that they did not have the required amount. 13. In February 2004 unidentified officers from the Vedeno ROVD who were working there on mission from the Perm Region in Russia provided the applicant with information about her son’s abduction. According to the officers, on 13 January 2004 servicemen from ‘Vostok’ battalion in an UAZ minivan (‘tabletka’) had allegedly arrested Mr Muslim Saydulkhanov on the street and taken him to the military commander’s office where he had been detained between 13 and 16 January 2004. Two officers from the criminal search division of the Vedeno ROVD, Mr V.St. and Mr P.K., had allegedly participated in the arrest. 14. At some point in the spring of 2004 an unidentified serviceman from ‘Vostok’ battalion visited the applicant’s fellow villager Ms R.V. and told her that he had been detained in a basement in Gudermes together with Mr Muslim Saydulkhanov who had been arrested on 13 January 2004 on the way to work by servicemen of the ‘Vostok’ battalion. 15. There has been no news of Mr Muslim Saydulkhanov ever since. 16. The Government submitted a copy of “the entire contents of criminal case-file no. 43018” into the abduction Mr Muslim Saydulkhanov on 114 pages. The information submitted may be summarised as follows. 17. On 15 January 2004 the applicant complained about her son’s disappearance to the Vedeno department of the interior (the Vedeno ROVD) stating that her son “left for work but never arrived there”. 18. On 15 February 2004 the Vedeno ROVD refused to initiate a criminal investigation into the alleged abduction. 19. On 27 April 2004 the supervising prosecutor from the Vedeno district prosecutor’s office overruled the decision of 15 February 2004 as unlawful and ordered that the district prosecutor’s office initiate an investigation into the events under Article 126 of the Criminal Code (abduction). The criminal case file was given the number 43018. On the same day the applicant was informed thereof. 20. On 28 May 2004 the applicant was granted victim status in the criminal case and questioned (see paragraph 33 below). 21. On 27 June 2004 the investigation of the criminal case was suspended for failure to identify the perpetrators. 22. On 22 August 2005 the supervising prosecutor overruled the decision to suspend the investigation as unlawful and premature and ordered that it be resumed and a number of investigative steps taken. In particular, he pointed out that the investigators had not taken such basic steps as questioning of a number of witnesses including relatives and neighbours of the disappeared, crime scene examination, and forwarding information requests to various law enforcement agencies concerning Mr Muslim Saydulkhanov’s possible arrest by their agents. 23. On 22 September 2005 the investigation of the criminal case was again suspended for failure to identify the perpetrators. 24. On 27 November 2006 the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered that it be resumed and a number of investigative steps taken. 25. On 6 December 2006 the investigators forwarded information requests to various law enforcement agencies asking for information on possible whereabouts of Mr Muslim Saydulkhanov and that of his service gun. No replies in the positive were received. 26. On 27 December 2006 the investigation of the criminal case was again suspended for failure to identify the perpetrators. The applicant was informed thereof. 27. On 14 January 2010 the applicant requested that the investigators provided her with an update on the progress of the proceedings, allowed to access the case file and resumed the investigation. 28. On 16 January 2010 the investigators replied that it was impossible to resume the suspended investigation as all possible investigative steps had been already taken. 29. On 1 December 2011 the investigation was again resumed. The criminal proceedings are still pending. 30. On 15 January 2004 the police questioned the applicant who stated that in the evening of 13 January 2004 her son had gone to work and disappeared. 31. On 5 February 2004 the police investigators questioned the applicant’s neighbour Ms Z.G. who stated that she had learnt of Mr Muslim Saydulkhanov’s disappearance from her neighbours. 32. On 27 February 2004 the investigators questioned Mr Muslim Saydulkhanov’s supervisor, Mr R.N., who stated, among other things, that about a week prior to Mr Saydulkhanov’s disappearance five or six men in camouflage uniforms had arrived at the Pension Fund in a light UAZ minivan. They had checked officer V.D.’s identity documents introducing themselves as belonging to “Djamaat “and acting under the command of Yamadayev. According to the witness, they could have been from the first military regiment stationed in the village of Oktyabrskaya. Then, the witness and his colleagues had understood that the men had been looking for Mr Muslim Saydulkhanov. In the afternoon of 13 January 2004 these men had arrived again and asked for water. Mr Muslim Saydulkhanov who had been standing at the entrance had gone to fetch it, but when he had returned those men had already left. In the witness’ opinion, it was possible that Mr Muslim Saydulkhanov had been kidnapped for ransom since his father was the head of the Pension Fund and dealt with large sums of money. The witness further stated that he had conducted his own investigation and found out that the military servicemen who had manned the checkpoint next to the exit from Shali, a settlement situated in about thirty kilometres from Vedeno, had stopped UAZ minivan ‘tabletka’ on the night of the abduction; inside the vehicle a man had been lying on the floor. To the question as for the man’s identity, the men in the vehicle had replied that it was a bandit caught in Vedeno. One of the servicemen at the checkpoint, being from Vedeno, wanted to check who this person was, but the men had told him that the bandit was not originally from Vedeno, that he had only been caught there and that his surname had been Dzhabrailov. 33. On 28 May 2004 the investigators questioned the applicant who stated that on 13 January 2004 her son, Mr Muslim Saydulkhanov, had gone to work. However, the next day her husband had found out that Mr Muslim Saydulkhanov had not been at work that night. She had learnt from unspecified local residents that her son had been abducted by servicemen from ‘Vostok’ battalion. She pointed out that in January 2004 she had been told by an unidentified serviceman from the rifle regiment (стрелковая рота) that her son had been detained by a group of servicemen under the command of Yamadayev and some FSB officers and that the abductors would release Mr Muslim Saydulkhanov in exchange for USD 10,000 and that if she were to complain of the abduction, they would kill her and her family members. In March 2004 an unidentified serviceman of Chechen ethnic origin had told her on the street that when the ransom would be ready she would need to pass it on through him. The applicant further stated that when she had been interviewed by the police investigator in January 2004 about the circumstances of the disappearance, she had not mentioned the ransom and even requested that officer that the police would not open a criminal case into the matter as she had been afraid of her safety. 34. On 3 June 2004 the investigators questioned Mr Muslim Saydulkhanov’s colleague, Mr V.D., who stated that on 13 January 2004 he had been on duty with Mr Muslim Saydulkhanov. At about 5 p.m. in the afternoon Mr Muslim Saydulkhanov had gone home for dinner but had not returned. The next morning Mr Muslim Saydulkhanov’s father had come to search for his son and he had learnt from him that Mr Muslim Saydulkhanov had eaten at home and had then left for work. Two days later the witness had learnt that Mr Muslim Saydulkhanov had allegedly been abducted. 35. On 29, 30 and 31 August 2005 the investigators questioned Mr Muslim Saydulkhanov’s colleagues Mr M.S., Mr M.Kh. and Ms Kh.D. all of whom stated that they had learnt of his abduction from their colleagues. 36. On the same dates, 29, 30 and 31 August 2005, the investigators also questioned other colleagues of Mr Muslim Saydulkhanov, Mr D. Kh., Mr A.M. and again Mr R.N. All of them stated that they had learnt of his abduction from their colleagues. The witnesses further added that prior to the events, in the morning of 13 January 2004, at about 7.30 a.m. right before they were to pass on the duty to Mr Muslim Saydulkhanov and Mr V.D., a grey UAZ minivan with blackened windows and without official registration numbers had pulled over at the Pension Fund’s building. Three armed men without masks, in camouflage uniforms of ‘NATO’ type, had gotten out and asked them in Chechen at what time the employees of the Pension Fund arrived at work. In reply the witnesses asked for the men’s identity documents. The latter had refused to show the documents, said that they were just “checking the posts” and then they had driven away. In addition, Mr D.Kh. stated that a few days prior to the abduction, he had learnt from a fellow villager, that armed men in camouflage uniforms had arrived at the building of the Vedeno military commissioner’s office and asked who guarded the Pension Fund’s building and what had been the regular security routes of that building’s security guards. 37. On 5 December 2006 the investigators again questioned the applicant who reiterated her previous statement (see paragraph 33 above). 38. On 6 December 2006 the investigators again questioned Mr Muslim Saydulkhanov’s supervisor Mr R.N. who stated that he had no new information to add to his previous statements (see paragraphs 32 and 36 above) other than that one of the men he had mentioned in his previous statements concerning the events surrounding Mr Muslim Saydulkhanov’s disappearance had been called Alikhan and that this person had subsequently moved from Chechnya to the Astrakhan Region in Russia. 49. The applicant argued that it was beyond reasonable doubt that her son had been unlawfully detained and then killed by State agents. In support of her allegations she referred to the following: the area where Mr Muslim Saydulkhanov had disappeared was under the authorities’ exclusive control as the roads leading to and from the settlement were blocked by checkpoints (see paragraph 6 above), that Mr Muslim Saydulkhanov’s supervisor had found out that the servicemen who had been on-duty at the checkpoint in Shali in the morning following the disappearance had stopped a UAZ minivan the drivers of which had refused to show them the person detained in their vehicle (see paragraph 32 above) and that the Government failed to provide information concerning the identity of that person allegedly apprehended in Vedeno and taken to Shali. 50. The applicant further stated that the witnesses Mr R.N., Mr A.M. and Mr D.Kh. had stated that prior to the disappearance of Mr Muslim Saydulkhanov military servicemen from the ‘Vostok’ battalion had taken interest in security officers working at the Pension Fund in Vedeno and that they had previously searched for her son (see paragraph 36 above). 51. The applicant pointed out that the Government did not refute her assertions that the head of Vedeno administration confirmed her son’s detention at the Vedeno military commander’s office, that the officers from the Vedeno ROVD had participated in his abduction and that he had subsequently been detained in Gudermes (see paragraphs 11, 13, 14 and 33 above). 52. Finally, the applicant submitted that her son must be presumed dead as more than eight years elapsed since his disappearance. 53. The Government stated that from the documents submitted that there was no evidence confirming either that State agents had not been involved in the abduction of Mr Muslim Saydulkhanov or that he was dead. 54. 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, 13 December 2012): the factual findings should be based on the standard of proof “beyond reasonable doubt”; 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). 55. Applying the above principles to cases concerning allegations of disappearances in Chechnya, the Court has concluded that it is sufficient for applicants to make a prima facie case that their missing relatives have been abducted by servicemen, such abduction thus falling within the control of the authorities, and it is then for the Government to discharge their burden of proof either by disclosing the 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, § 98, and Gakayeva and Others v. Russia, nos. 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, § 360, 10 October 2013). 56. When adjudicating on disappearance cases in Chechnya, the Court has borne in mind the difficulties associated with obtaining evidence and the fact that, often, little evidence can be submitted by the applicants in support of their applications. The prima facie threshold has been reached primarily on the basis of witness statements, including the applicants’ submissions to the Court and to the domestic authorities, and other evidence attesting to the presence of military or security personnel in the area concerned at the relevant time. The Court has relied on references to military vehicles and equipment; the unhindered passage of the abductors through military roadblocks, in particular during curfew hours; conduct typical of security operations, such as the cordoning off of areas, checking of identity documents, searches of premises, questioning of residents and communication within a chain of command; and other relevant information about special operations, such as media and NGO reports. Given the presence of those elements, it has concluded that the areas in question had been within the exclusive control of the State authorities in view of military or security operations being conducted there and the presence of servicemen (see, for example, Ibragimov and Others v. Russia, no. 34561/03, § 82, 29 May 2008; Abdulkadyrova and Others v. Russia, no. 27180/03, § 120, 8 January 2009; and Kosumova and Others v. Russia, no. 27441/07, § 67, 7 June 2011). If the Government failed to rebut that presumption, this would entail a violation of Article 2 in its substantive part. However, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shaipova and Others v. Russia, no. 10796/04, § 87, 6 November 2008; Tovsultanova v. Russia, no. 26974/06, §§ 77-81, 17 June 2010; and Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011). 57. Thus, the Court’s case-law cited above attests that since 1999 antiterrorist operations have been carried out routinely in the Northern Caucasus region, which in the past few decades has been plagued by serious disturbances of law and order. As the Court has found, these operations can entail the detention of individuals in the context of non-acknowledged security operations, and such detention can be considered life-threatening (see Aslakhanova, cited above, § 101). 58. However, in the present case the Court notes that the incident took place in the absence of any witnesses. Unlike in many other cases concerning alleged abductions perpetrated by State agents in the Chechen Republic, the documents submitted by the parties in the present case contain neither any first-hand accounts describing the events nor any other information pertaining to the actual circumstances of the disappearance (see, by contrast, among many other cases, Dzhabrailov and Others v. Russia, nos. 8620/09, 11674/09, 16488/09, 21133/09, 36354/09, 47770/09, 54728/09, 25511/10 and 32791/10, § 309, 27 February 2014 and Akhmatov and Others v. Russia, nos. 38828/10, 2543/11, 2650/11, 2685/11, 7409/11, 14321/11 and 26277/11, § 226, 16 January 2014). As for the applicant’s information concerning the events surrounding the disappearance, the Court notes that in her statements given to the domestic authorities she had not mentioned that she had received information concerning her son’s detention either from the head of the local administration or unidentified police officers (see paragraphs 11, 13 and 14 above). Further, as for the information concerning the alleged passage of the abductors through the checkpoint in Shali (see paragraph 32 above), the Court does not consider that it provides enough grounds for a firm presumption that these had been the abductors of the applicant’s son and that they had belonged to State authorities. In such a situation the Court has insufficient evidence on which to draw the conclusion that State agents had been involved in the disappearance of Mr Muslim Saydulkhanov as the factual circumstances of the incident as presented by the applicant do not include any evidence corroborating her account to a decisive extent (see, for a similar situation, Şeker v. Turkey, no. 52390/99, §§ 9 and 64, 21 February 2006). 59. On the basis of the material in its possession, the Court considers that the actual circumstances in which Mr Muslim Saydulkhanov disappeared remain a matter of assumption and that, accordingly, there is an insufficient evidentiary basis for a finding that the perpetrators belonged to the security forces or that a security operation was carried out in respect of him. 60. Accordingly, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in the disappearance of Mr Muslim Saydulkhanov; nor does the Court consider that the burden of proof can be shifted to the Government, having regard, in particular, to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the Court.