CASE OF MUTAYEVA AND ISMAILOVA 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)
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants were born in 1980 and 1971 respectively and live in Zubutli-Miatli, Kizilyurt district, Dagestan, Russia. They are the wife and the sister of Mr Kamil Mutayev who was born in 1976. 6. Between 2010 and 2012 the applicants’ relative Mr Kamil Mutayev had been detained on at least three occasions by representatives of lawenforcement agencies on suspicion of illegal activities and subsequently released. In particular, in 2010 he had been detained pending trial for about six months on suspicion of illegal possession of firearms and assault of a representative of the State and had then been subsequently sentenced to two years’ imprisonment. The sentence was suspended. 7. At about 1 p.m. on 2 May 2012 Mr Kamil Mutayev and his twelveyear old son Muradis were driving in their VAZ-21099 car in Shamil Street in the centre of the town of Kizilyurt, Dagestan, when they were blocked by two silver-coloured VAZ Priora cars with heavily tinted windows, one of which had an official registration number containing the digits “78”. Eight masked men in black uniforms and armed with pistols and machine guns got out of the Priora cars, knocked Mr Kamil Mutayev off his feet and forced him into one of their vehicles. They threatened his son with firearms and ordered him to stay in the car. The abduction took place approximately two hundred metres from the district police station (the department of the interior) and the public prosecutor’s office. After the abduction the perpetrators drove away through the local traffic police checkpoint. 8. The applicants submitted to the Court the witness statements of Ms Ya.R. dated 7 February 2013 and of Ms As.I. dated 25 February 2013. According to both women, they did not see the abduction but both saw two Priora cars speeding away from the vicinity of where the incident took place around the time of the abduction. It does not appear that either of the witnesses provided a statement to the investigation. 9. The Government did not dispute the facts as presented by the applicants. At the same time they denied any involvement of State agents in the abduction. 10. In reply to the Court’s first request for a copy of the contents of the investigation file, the Government provided documents from the file, amounting to 43 pages, which showed the steps taken by the investigators from 14 May to 27 June 2012. 11. In reply to the Court’s second and third requests for a copy of the contents of the investigation file, the Government submitted copies of its contents, some 688 pages long, which showed the steps taken by the investigators from the beginning of the proceedings to 15 August 2015. From the documents submitted, the investigation can be summarised as follows. 12. Immediately after the abduction, on 2 May 2012 the applicants complained to the Kizilyurt police station (Отдел внутренних дел по г .Кизилюрт) (hereinafter “the OVD”). 13. On 2 May 2012 the police questioned the second applicant who provided a detailed account of the events similar to the one submitted to the Court and stated that she had learnt of Mr Kamil Mutayev’s abduction from her nephew Muradis. 14. On 2 May 2012 the police examined the crime scene. No evidence was collected. 15. On 2 and then on 10 May 2012 the police questioned Mr Kamil Mutayev’s son Muradis, whose account of the events was similar to that submitted by the applicants to the Court. In addition, the witness stated that the abductors had scared him by threatening to shoot him if he disobeyed their orders not to move. 16. On 2 or 3 May 2012 the police examined Mr Kamil Mutayev’s VAZ21099 car. Fingerprints taken from the vehicle on that date were submitted for expert examination on 18 May 2012. 17. On 14 May 2012 the applicants lodged an abduction complaint with the Kizilyurt town prosecutor’s office. 18. On 14 May 2012 the investigations department of the Kizilyurt town prosecutor’s office opened criminal case no. 207127. The applicants were informed thereof on 24 May 2012. 19. On 19 May 2012 the investigators questioned Mr Kamil Mutayev’s son Muradis who reiterated his previous statements and added that he would not be able to identify any of the abductors as he had been scared. 20. On 19 May 2012 the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted to the Court. In particular, the applicant pointed out that when driving away the abductors’ vehicle had gone through the traffic police checkpoint. 21. On 21 May 2012 the first applicant was granted victim status in the criminal case and questioned again. She reiterated her previous statements. 22. On 23 May 2012 the Dagestan Forensic Expert Examinations Bureau informed the investigators that they did not have matches in their database for the fingerprints found on Mr Kamil Mutayev’s car. 23. On 24 May 2012 the investigators again questioned the second applicant whose statement was similar to the applicants’ account submitted to the Court. 24. On 6 June 2012 the investigators again examined the crime scene. 25. On 7 June 2012 the investigators again questioned the first applicant who stated that her husband Mr Kamil Mutayev did not have financial debts or enemies. At the same time she stated that on several occasions he had received threats from unidentified persons on account of his religious beliefs. Those persons had visited their house and had thrown hand-written threats inside. The applicant did not specify whether she had had any suspisions or theories concerning the identities of those persons. 26. On 15 June 2012 the local police informed the investigators that Mr Kamil Mutayev was a member of an illegal armed group, belonged to an extremist religious movement and had, therefore, most probably, staged his own abduction. 27. On 29 June 2012 the investigators questioned five local residents, all of whom stated that they had not witnessed the abduction and found out about it from others. 28. On 6 August 2012 the investigators examined the registration log of detainees of the OVD. No records concerning Mr Kamil Mutayev were found therein. 29. On 6, 7 and 12 August 2012 the investigators questioned police officers from the OVD: Mr M.M., Mr Z.S., Mr R.A., Mr A.M. and Mr D.D. All of them stated that on the date of the abduction they had been on duty at the police station and neither Mr Kamil Mutayev nor his car had been brought in. 30. On various dates between June and November 2012 the investigators received the list of calls made from and to Mr Kamil Mutayev’s mobile telephone as well as replies to their numerous information requests concerning Mr Kamil Mutayev from hospitals, morgues, retirement homes, mosques and detention centres in various regions of Russia. No information pertatining to his whereabouts or the perpetrators’ identities was obtained. 31. On 14 September 2012 the investigation was suspended. It is unclear whether the applicants were informed thereof. 32. On 9 November 2012 the investigation was resumed in order to take further steps. 33. On 30 November 2012 the investigators questioned the head of the OVD officer R.S. who stated that according to their information Mr Kamil Mutayev was an avid follower of the extremist religious movement Wahhabi and that he had staged his abduction to join an illegal armed group. 34. On an unspecified date in 2013 the investigation was resumed. 35. Between March 2013 and February 2014 the investigators questioned a number of Mr Kamil Mutayev’s relatives and neighbours, whose statements did not provide new information. They also questioned again his son Muradis and the first applicant who reiterated their earlier statements. 36. From the documents submitted it follows that between November 2012 and August 2015 the investigation was suspended and resumed on several occasions. The last resumption of the investigation took place on 10 September 2015. The proceedings are still pending. 46. The applicants alleged that State agents were responsible for Mr Kamil Mutayev’s disappearance. They stressed that the authorities had suspected him of membership of illegal armed groups and, therefore, had motives for his abduction. The abductors had used Priora cars with heavily tinted windows; only law-enforcement agencies could use such vehicles. Moreover, after the abduction the perperators had passed through a permanent road traffic police checkpoint. The applicants referred to statements of local residents who had not witnessed the abduction but had seen vehicles similar to those of the abductors driving to that police station. Lastly, the applicants referred to a number of cases of abduction perpetrated in Dagestan in which some of the abducted persons had been later found in State custody. 47. The Government submitted that the applicants’ relative Mr Kamil Mutayev had been abducted by unidentified men or could have staged his own abduction. The only witness to the events was Mr Kamil Mutayev’s son Muradis, who was a minor, and the other persons, including the applicants, learnt of the events from him. In such circumstances the applicants’ allegations concerning involvement of State agents in the incident were groundless. 48. A summary of the principles concerning the assessment of evidence and establishment of facts in disappearance cases and the life-threatening nature of such incidents 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, §§ 393-96, 9 October 2014). 49. The Court notes that in reply to its request for a copy of the investigation file into the abduction the Government produced the relevant documents from the file (see paragraphs 10 and 11 above). 50. The Court has already found the Russian authorities responsible for disappearances of civilians perpetrated in Dagestan (see, for example, Umarovy v. Russia, no. 2546/08, 12 June 2012, and Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013). In doing so, it has taken into account the length of time during which the applicants had not had any news of their missing relatives and witness statements and other documents attesting to the presence of security or law-enforcement personnel in the area concerned at the relevant time. It has relied on witness accounts and other information on security operations. 51. However, in the present case the circumstances in which the events occurred cannot warrant an unequivocal conclusion that State agents were responsible for the abduction of the applicants’ relative for the following reasons. As regards the general background, the events complained of took place in May 2012 and there was neither a curfew in place nor any restrictions on driving in civilian vehicles. Furthermore, from the documents submitted it appears that the applicants’ version of the events was based on the statements of the only witness, Mr Kamil Mutayev’s son, who according to his own statement had been scared during the incident (see paragraph 19 above), and of persons who had not witnessed the actual abduction and whose statements were not included in the investigation file (see paragraph 8 above). In addition, the Court notes that the first applicant stated to the investigation that Mr Kamil Mutayev had received threats but did not specify whom she had suspected or the nature of the threats received (see paragraph 25 above). In such a situation the Court has little evidence on which to draw such conclusions as the factual circumstances of the incident as presented by the applicants do not include any evidence corroborating their account to a decisive extent. 52. Accordingly, the information in the Court’s possession does not suffice to establish that the perpetrators belonged to the security forces or that a security operation was carried out in respect of Mr Kamil Mutayev. 53. To sum up, it has not been established to the required standard of proof that State agents were implicated in the disappearance of Mr Kamil Mutayev; nor does the Court consider that the burden of proof can be entirely 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.