CASE OF KHAVA AZIYEVA AND OTHERS 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;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)
Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicants are: 1) Ms Khava Aziyeva, who was born in 1983, 2) Ms Aysha Aziyeva, who was born in 2008, and 3) Mr Abdurrakhman Aziyev, who was born in 2010. They live in Grozny, the Chechen Republic. They are the relatives of Mr Rizvan Aziyev, who was born in 1979. The first applicant is his sister, the second and third applicants are his children. 6. At the material time the applicants and Mr Rizvan Aziyev lived at 23 Gagarina Street, in the settlement of Staraya Sunzha in Grozny. The first applicant’s two other brothers, Mr I.A. and Mr Kh.A., had been convicted for the participation in illegal armed groups and were serving their sentences. 7. In 2005 Mr Rizvan Aziyev was arrested in Irkutsk, Russia, and then convicted for the participation in illegal armed groups. In 2008 he was released upon completion of the sentence. 8. For an unspecified period of time, prior to August 2008, the first applicant was married to Mr A.Kh. who was wanted by the authorities for active membership in illegal armed groups. On 31 October 2009 he had been killed as a result of a special operation carried out by the authorities in Grozny (see application Gaysanova v Russia, no. 62235/09 concerning alleged abduction of the applicant’s daughter Ms Zarema Gaysanova by State agents during that special operation). 9. On 31 October 2009 the applicants and their relatives were at home. Mr Rizvan Aziyev was not there. The applicants’ neighbours in the house across the street (at 20 Gagarina Street) were preparing a wedding dinner; their house was full of guests. 10. In the evening on that date a large group of servicemen in military camouflage or black uniforms arrived in about fifteen UAZ and VAZ model civilian vehicles and cordoned off several streets around the applicants’ house. According to the applicants’ neighbours, the servicemen blocked access to the nearby streets to its residents explaining that they were conducting a special operation. 11. At about 7 p.m. a group of about twenty to thirty armed men arrived at the applicants’ house in Gagarina Street in several vehicles. The men were in military camouflage uniforms, they were armed with automatic rifles, had portable radios and special military ammunition belts. The men spoke Chechen and Russian. The applicants and their relatives thought that these men were police officers. 12. Three of the men went into the applicants’ house whereas the rest remained outside blocking the building and the nearby houses. One of the three men, who was in charge of the group, demanded in Chechen that the first applicant telephoned her brother Mr Rizvan Aziyev and asked him to come home without mentioning that the police were waiting for him. Meanwhile, two other men quickly searched the house. One of the intruders received a phone call on his mobile phone and explained to someone that he was at work. 13. The first applicant called Mr Rizvan Aziyev and asked him to come home as soon as possible. Mr Rizvan Aziyev told her that he would be there in about ten minutes. The man in charge of the intruders’ group stood next to the applicant and listened to the conversation. As soon as the conversation was over he took the phone away from her and went outside whilst one of his colleagues remained in the house. 14. The first applicant looked out from the window and saw that a group of about fifteen other men was standing under the shed in the yard. 15. About twenty minutes later one of the policemen opened the house door and asked his colleague to come out. The first applicant tried to follow the man, but he closed the door from the outside. About two minutes later he opened it and left the yard. Immediately afterwards the first applicant heard several cars starting their engines and driving away from the house. 16. According to the applicants’ neighbour, Ms R.A., she saw Mr Rizvan Aziyev being taken away by the abductors who had waited for him next to the applicants’ house. 17. A number of the applicants’ neighbours and the wedding guests at 20 Gagarina Street witnessed the arrival of the group of the men, who had resembled police officers, to the applicants’ house and Mr Rizvan Aziyev’s removal by them. According to the applicants, the overall duration of the special operation was about half an hour. 18. About an hour after the abduction, the first applicant’s relative Mr A. - M.A. went to the Leninskiy district department of the interior in Grozny (the ROVD) and complained in writing about the arrest of Mr Rizvan Aziyev. The officers at the ROVD denied any involvement into the events. 19. On the same evening, 31 October 2009, an officer who introduced himself as Mr Isa, the district police officer, arrived at the applicants’ house, although neither the applicants nor their relatives had informed him about the events. The officer knew that Mr Rizvan Aziyev had been arrested and asked the applicants and their relatives about him and Ms Zarema Gaysanova (see paragraph 8 above). He denied having any knowledge about the whereabouts of the applicants’ relative but promised to assist the applicants in his release. Next morning the applicants’ relative, Mr A.-M.A., spoke with him. The officer denied having any information concerning Mr Rizvan Aziyev’s whereabouts. Subsequently, the applicants found out that Mr Isa had not been a district police officer but a high-ranking officer of a Chechen law-enforcement agency. 20. The following days the applicants and their relatives complained about the abduction to a number of local law-enforcement agencies. None of them accepted the responsibility for arresting or detaining Mr Rizvan Aziyev. 21. On 5 February 2011 the first applicant watched the video footage of the special operation conducted by the authorities against Mr A.Kh. on 31 October 2009 (see paragraphs 8 and 19 above) and recognised one of the law-enforcement officers who had participated in the special operation against Mr A.Kh. as the commanding officer of the group of the abductors who had taken away Mr Rizvan Aziyev later on the same date. That officer on the video had spoken with the Chechnya Minister of the Interior Mr Alkhanov. It is unclear whether the first applicant informed the authorities thereof. 22. The applicants’ submission concerning the circumstances of the abduction and the surrounding events is based on the statements of the first applicant lodged with the application and the additional statement dated 10 February 2011, the statement of the applicants’ neighbour Mr M.T. dated 4 February 2011, the statement of the applicants’ relative Mr A.A. dated 4 February 2011 and copies of the contents of the investigation file opened in connection with Mr Rizvan Aziyev’s abduction. 23. The Government did not dispute the facts as presented by the applicants. At the same time they pointed out that the abduction had been perpetrated by unidentified armed persons, whose outfits and firearms had been common among ordinary criminals, that the body of Mr Rizvan Aziyev was never found and that the witnesses to the abduction had not been sufficiently precise in the description of the abductors’ appearance. 24. On 1 November 2009 the first applicant complained in writing about the abduction to the Leninskiy inter-district prosecutor’s office (the prosecutor’s office). 25. On 2 November 2009 the investigator from the ROVD forwarded information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents. 26. On 4 November 2009 a group of investigators from the prosecutor’s office arrived at the applicants’ house and briefly examined the crime scene. They only took photographs of the house and questioned Ms R.A. who stated that she had seen the abductors taking away Mr Rizvan Aziyev (see paragraph 42 below). 27. On 6 November 2009 the investigators again examined the crime scene and collected photos and the passport of Mr Rizvan Aziyev. 28. On 11 November 2009 the Leninskiy district investigating department of the prosecutor’s office (the investigating department) instituted an investigation into the abduction of Mr Rizvan Aziyev under Article 126 § 2 (aggravated kidnapping). The case file was given the number 66093. 29. On 12 November 2009 the interim head of the investigating department ordered that by 30 November 2009 the investigators into the abduction took, amongst others, the following steps: “... the murder of Mr Rizvan Aziyev could have been committed by servicemen of law-enforcement agencies. To investigate the matter fully and thoroughly and identify the perpetrators, it is necessary to ... establish eye-witness to the crime and obtain their information concerning its circumstances and the culprits ...” 30. On 14 November 2009 the investigators forwarded information requests to local hospitals and detention centres asking whether they had any information concerning Mr Rizvan Aziyev. The replies received were in the negative. 31. On 16 November 2009 the applicants’ relatives, Ms Kha.A. and Mr A.-M.A., were granted victim status in the criminal case and questioned (see paragraphs 41 and 44 below). 32. On 16 and 17 November 2009 the investigators reiterated their information requests to various district police departments in Chechnya asking whether Mr Rizvan Aziyev’s body had been found and/or whether he had been detained by their agents. The replies received were in the negative. 33. On 10 December 2009 the deputy head of the Chechnya investigating committee criticised the investigation in the criminal case and ordered that, amongst others, that the following steps be taken: “... to correct the deficiencies of the investigation in the criminal case... it is necessary: - to examine again the crime scene to find such evidence as fingerprints with the participation of the [relevant] forensic expert;... - to obtain list of phone calls made by Mr Rizvan Aziyev ... and the list of all mobile phone calls made in the vicinity of the crime scene between 6 and 8 p.m. on 31 October 2009 and establish the owners of the phone numbers from which they had originated ...” 34. On 15 or 16 December 2009 the investigators again examined the crime scene. No evidence was collected. 35. On 11 February 2010 the investigation in the criminal case was suspended for failure to identify the perpetrators. 36. On 20 April 2010 the first applicant was granted victim status in the criminal case. 37. On an unspecified date between January and April 2010 the investigators obtained a detailed list of connections made from the Mr Rizvan Aziyev’s mobile telephone on the date of the abduction, 31 October 2009. According to the list, after the abduction, text-messages were received by the phone in the vicinity of the town of Argun which was about fifteen kilometres from Grozny. 38. According to the applicants, the investigators did not inform them of the progress in the criminal case. The applicants were able to familiarise themselves with the contents of the investigation file only after having been provided with a copy of its contents furnished by the Government upon the Court’s request to this end made on 27 August 2010. 39. On 4 February 2011 the first applicant complained to the head of the Chechnya investigating department that the investigation of her brother’s abduction was ineffective, stating, amongst other things, the following: “... I familiarised myself with the contents of the criminal case file as a result of which the following has been established: 1. My brother had been detained at about 7.20 p.m. on 31 October 2009. The case file contains the list of his mobile phone connections for that day. According to that list, after the abduction, my brother’s mobile telephone had received a text message while being in Argun. At that time a checkpoint had been functioning on the roads leading from Grozny to Argun. Therefore, the persons who had detained my brother had taken him or his telephone to Argun; they had passed through two checkpoints of the law enforcement agencies. However, there is nothing in the case file showing that the investigators had taken any steps in respect of the staff who had manned those checkpoints on 31 October 2009. 2. On 31 October 2009 the persons who had detained my brother had carried out a special operation in Staraya Sunzha. From the information obtained from the local residents, they had condoned off several streets and had not allowed anyone into the sealed off area.... In addition, these persons had used at least ten vehicles ... from the case file it does not follow that the investigation took steps to verify this information. 3. The investigators, when questioning the local residents, could have asked them not only of the vehicles used by the abductors, but also of the direction in which they had left. However, no such steps have been taken. 4. Mr Rizvan Aziyev had been abducted by a large group of armed persons who had arrived in at least ten vehicles and cordoned off significant area in Staraya Sunzha. Every time if a member or several members of illegal armed groups resurface in Chechnya, the authorities take urgent steps to eliminate them. In my brother’s case, the law-enforcement agencies had failed to take any steps to search for his abductors. They had arrived at the crime scene to inspect it several days later after the crime had been reported to them, in spite of the fact that already in about an hour after the abduction my cousin Mr A.-M.A. had informed the Leninskiy ROVD of the abduction. From this it is possible to conclude that the authorities had known that the persons who had detained my brother, had belonged to law-enforcement agencies. It also follows that the investigation in the criminal case should have questioned lawenforcement officials responsible for the Leninskiy district in Grozny in order to find out the reasons for their failure to take urgent steps to apprehend the abductors ... 5. The persons who detained my brother on 31 October 2009 had been armed, in camouflage uniforms, had arrived as a large group, driven openly around Grozny and cordoned off large areas in the town. Nonetheless, the law enforcement authorities, having received the information about the abduction, had taken no steps to identify and arrest them. Such circumstances provide me with grounds to believe that my brother had been a victim of the State agents as a result of their special operation. In spite of those clear facts, the authorities had failed to establish the law-enforcement agencies empowered to carry out such operations in the Leninskiy district in Grozny and to questions their servicemen. 6. From the above it follows that the investigation should have obtained information of all special operations conducted in Grozny on 31 October 2009 and their results. From the case file it follows that no such information was requested by the investigators. 7. ... I and my relatives believe that Zarema Gaysanova provided the authorities with information about my brother which served as the basis for his arrest. Of course, Rizvan had known my former husband [Mr A.Kh.]. In connection with this the investigation in the criminal case should verify the theory of my brother’s abduction by the same persons who had abducted Zarema Gaysanova and question the lawenforcement officer known as Mr Isa who had asked me about Zarema Gaysanova. From the case file it follows that no steps have been taken to follow up on this information. ... In the light of the above, the actions of the investigation in the criminal case which led to failure to take the above and other investigative steps are unlawful and unsubstantiated... On the basis of the above ... I request that you: 1. Recognise as unlawful and unsubstantiated the actions of the investigators in criminal case no. 66093 for the failure to take all of the above investigative steps; 2. Oblige the investigators in the criminal case to resume the proceedings and take the above steps; 3. Inform me of the results of the examination of this request in accordance with the law...” It is unclear whether any reply has been given to this request. 40. No further information was submitted to the Court on the progress of the proceedings; but from the documents submitted it follows that the investigation is still pending. 41. On 4 November 2009 the investigators questioned the applicants’ relative Ms Kha.A. who provided detailed description of the abduction similar to the applicants’ account submitted to the Court. 42. On 4 or 6 November 2009 (the date is illegible) the investigators questioned the applicants’ neighbour Ms R.A. whose statement was similar to that of the applicants submitted before the Court. In addition, she stated that the abductors had told her in Chechen to get back in the house and stay inside. From the conversation she had overheard between them, the witness had understood that the fair-haired intruder of medium height and solid built in embroidered scullcap (tubeteyka) had been in charge of the group. 43. On 6 November 2009 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted before the Court. 44. On 6 November 2009 the investigators also questioned Mr A.-M.A. whose statement was similar to the applicants’ account submitted to the Court. 45. On 16 November 2009 the investigators again questioned Ms Kha.A. and Mr A.-M.A., both of whom reiterated their previously given statements. 46. On 23 November 2009 the investigators again questioned the first applicant who reiterated her previously given statement. 47. On 23 November 2009 the investigators also questioned the applicants’ relative and the father of Mr Rizvan Aziyev, Mr L.A., whose statement was similar to the applicants’ account submitted to the Court. 48. On 25 November 2009 the investigators questioned the applicants’ neighbour Ms R.M. whose statement was similar to the applicants’ account submitted before the Court. In addition, she stated that the abductors had spoken Chechen and that she had subsequently learnt from the first applicant that when the abductors had arrived at their house, Mr Rizvan Aziyev had been in a shop in the 3rd district in Grozny. 49. On 16 December 2009 the investigators again questioned Ms Kha.A. and the first applicant both of whom reiterated their previously given statements. 59. The applicants maintained that it was beyond reasonable doubt that State agents had taken away Mr Rizvan Aziyev and subsequently killed him. In support of their complaint they referred to the following facts. The abductors had arrived as a large group of armed men in uniforms in numerous civilian vehicles which were typically used by the local law-enforcement agencies; the abductors had used portable radio-stations and condoned off a large area, which would have been impossible for an illegal armed group. The abductors had acted openly, without any fear of being discovered by the authorities and openly spoken with the applicants’ neighbours. The abductors had acted as an organised group under chain of command and had been able to drive unobstructed through checkpoints in the area. The authorities had not taken any urgent steps to establish the whereabouts of Mr Rizvan Aziyev in spite of the applicants’ immediate complaint about it. Finally, the authorities had motives for the abduction of Mr Rizvan Aziyev owing to his past as a member of illegal armed groups and his acquaintanceship with Mr A.Kh. who had been killed during the special operation carried out in another neighbourhood in Grozny on the same date. The applicants submitted that they had made a prima facie case that their relative had been abducted by State agents and that the essential facts underlying their complaints had not been challenged by the Government. They stressed that Mr Rizvan Aziyev had disappeared in life-threatening circumstances, that he had been missing for a long period of time and that therefore, he must be presumed dead. 60. The applicants further argued that the investigation of the abduction had been ineffective. In particular, they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major delays and deficiencies. In spite of being informed of the abduction shortly after the events, the authorities opened the criminal case only on 11 November 2009 and carried out the crime scene examination without forensic experts only on 6 November 2009, almost in a week after the report of the abduction. By December 2009 the crime scene had not been examined by forensic experts (see paragraph 33 above) that had led to the loss of such evidence as the culprits’ fingerprints, and the tracks of their boots and the vehicles’ tires. Not all the witnesses to the events had been established and those who had been identified and questioned had been questioned belatedly and in a superficial manner. The investigation into the abduction had accepted the theory that the perpetrators belonged to the State authorities and forwarded information requests to verify whether Mr Rizvan Aziyev had been in State custody whereas the other theories had not been verified. Despite the clear indications to the special operation against Mr Rizvan Aziyev, the investigators neither took steps to identify and question the law-enforcement officials as to the reasons for their belated reaction to the abduction nor requested information on special operations carried out in the area on 31 October 2009. The investigation was suspended in spite of the investigators’ failure to take basic steps (see paragraph 38 above). 61. Referring to the cases Shaipova and Others v. Russia, no. 10796/04, § 85, 6 November 2008 the Government contended that the applicants had failed to make a prima facie case of State agents’ involvement into the abduction as the witnesses had not been sufficiently precise in the description of the perpetrators; the vehicles, uniforms and the firearms of the abductors could have been used by any other criminals and that there was no proof that Mr Rizvan Aziyev had been dead as his body was never found. They further claimed that the investigation of the incident had met the Convention requirement of effectiveness, as all possible measures available under national law were being taken to have the crime solved. 62. The Court points out that a number of principles have been developed in its case-law as regards applications in which it is faced with the task of establishing facts on which the parties disagree. As to the facts that are in dispute, the Court reiterates its jurisprudence requiring the standard of proof “beyond reasonable doubt” in its assessment of evidence (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005VIII). 63. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention, the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar, cited above, § 283), even if certain domestic proceedings and investigations have already taken place. 64. The period of time that has elapsed since the person disappeared, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time that goes by without any news of the disappeared person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2 (see, among other authorities, Timurtaş v. Turkey, no. 23531/94, § 83, ECHR 2000VI). 65. The Court reiterates that where the applicant makes out a prima facie case, it is for the Government to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005II). 66. The Court notes that in reply to its request for a copy of the investigation file into the abduction of Mr Rizvan Aziyev, the Government furnished its contents reflecting the period of the investigation between November 2009 and August 2010. The Government furnished no further updates on the progress of the proceedings. The applicants, on their part, updated the Court on the progress in the proceedings to the extent known to them. 67. The Court notes that the criminal case materials in its possession reflect primarily the first year of the investigation into the circumstances of the abduction. Taking into account the importance of the first several months of an investigation into disappearance for the subsequent progress of the proceedings, the Court finds that the materials furnished by the parties suffice for the examination of the application. 68. In view of the parties’ submission, the Court’s’ relative. As for the Government’s reference to Shaipova and Others, cited above, § 85, the Court notes, that unlike in that case where the abductors had arrived on foot and where the applicants’ statements concerning the perpetrators had been vague, in the present one there are materials in its possession demonstrating the validity of the applicants’ allegation of special operation for the following reasons. In spite of the absence at the material time of curfew in the area and the abductors arrival at the applicants’ house in civilian vehicles – unlike in numerous other cases concerning abductions perpetrated by State agents in the same district several years prior to the events in question (see, for example, Askhabova v. Russia, no. 54765/09, § 135, 18 April 2013 concerning abduction perpetrated in August 2009) the Court would like to point out the following. Firstly, the abductors arrived as a large group in at least ten vehicles; they cordoned off several streets and acted as an organised group. Their vehicles were able to drive freely through the military checkpoints situated in vicinity of Staraya Sunzha. The abductors had informed the local residents that they had been conducting a special operation (see paragraphs 10 and 12 above). Secondly, from the investigation file it follows that the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons, such as a blood feud, ransom, drugs or hostility. No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than State agents (see, by contrast, Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). Lastly, the reluctance of the authorities to verify the information concerning the connection between the abduction of Mr Rizvan Aziyev and the killing on the same date as a result of the special operation of Mr A.Kh. (see paragraphs 8, 19, 21 and 39 above) provide the Court with the grounds to conclude that the applicants have made a prima facie case that their relative was abducted by State agents. The Government’s statement that the investigators found no evidence proving the involvement of members of lawenforcement authorities in Mr Rizvan Aziyev’s disappearance is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties and drawing inferences from the Government’s failure to provide another plausible explanation for the events in question, the Court finds that Mr Rizvan Aziyev was arrested on 31 October 2009 by State servicemen. 69. There has been no reliable news of Mr Rizvan Aziyev since his arrest. The Government have not submitted any explanation as to what happened to him afterwards. 70. The Court finds that, in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Rizvan Aziyev or of any news of him for more than five years supports this assumption. 71. Accordingly, the Court finds that the evidence available permits it to establish to the requisite standard of proof that Mr Rizvan Aziyev must be presumed dead following his unacknowledged detention by State agents.