CASE OF IREZIYEVY 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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicants are: (1) Mr Salambek Ireziyev, who was born in 1959, (2) Mr Imaddi Iriziyev (also spelled as Ireziyev), who was born in 1965, (3) Mr Sidyk Ireziyev, who was born in 1967. The first applicant lives in Grozny and the second and third applicants live in Avtury, the Chechen Republic. 6. The applicants are the brothers of Mr Aslan Ireziyev (also spelled as Iriziyev), who was born in 1975. 7. In May 2002 Mr Aslan Ireziyev lived with the second and third applicants and their families in two neighbouring houses in Avtury. At the material time Mr Khaseyn Suleymanov, the applicants’ nephew, was staying together with Mr Aslan Ireziyev. The settlement was under curfew. Checkpoints of the federal forces were functioning on the roads leading to and from Avtury. 8. At about 4 a.m. on 7 May 2002 (in the documents submitted the date was also referred to as 7 May 2003) masked men in camouflage uniforms with machineguns and rubber truncheons arrived in two APCs and a UAZ car in the village. They split in two groups of up to ten persons and broke into the two houses. The men spoke unaccented Russian. They took Mr Aslan Ireziyev and Mr Khaseyn Suleymanov to the backyard, locking the remaining family members inside. Having checked their passports, the men pulled sacks over their heads and put them in one of the APCs. 9. At dawn the applicants, together with the head of the Avtury administration, followed the tracks left by the vehicles. They found that one of the APCs had entered the premises of the Avtury collective farm (совхоз Автуринский), where a Russian military base was located (for the description of the premises see, for example, Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, § 25, 24 October 2013 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, §§ 138 and 141, 10 October 2013), and the other one had driven in the direction of Shali. The servicemen and the head of the Shali administration denied seeing the vehicles. 10. On 13 May 2002 Mr Salambek Bisultanov, the deputy head of the Shali district department of fight against organised crime, informed the first applicant that Mr Aslan Ireziyev and Mr Khaseyn Suleymanov had been brought to the Main Federal Military Base in Khankala, and promised to arrange their release at 5 p.m. in Argun. At the specified time four camouflaged servicemen brought Mr Khaseyn Suleymanov in a UAZ car. They promised to set Mr Aslan Ireziyev free on the following day, which did not happen. Later Mr Bisultanov told the applicants that he had not managed to obtain Mr Aslan Ireziyev’s release. 11. According to Mr Khaseyn Suleymanov, after the arrest the men took him and Mr Aslan Ireziyev to the Avtury collective farm. There they were handed over to other men, put in a UAZ car and driven away, passing through several roadblocks. At a certain point the men stopped and placed him and Mr Aslan Ireziyev in a cellar. The men introduced themselves as officers of the Special Task Police Unit (the OMON) from St. Petersburg. They questioned them about involvement in illegal armed groups and beat them up. 12. Some time later the applicants learnt that during the night raid of 7 May 2002 the men had killed their neighbour, Mr Sultan Saykhadzhiyev. 13. The applicants have not seen Mr Aslan Ireziyev since his abduction on 7 May 2002. 14. The applicants’ description of the circumtances surrounding the abduction is based on the following statements: the first applicant’s statement dated 2 August 2007, the third applicant’s statement dated 23 April 2007, the statement of Mr Khaseyn Suleymanov dated 2 August 2007, the statement of the applicants’ relatives Ms Z.I. dated 2 August 2007 and Ms L.K. dated 22 April 2007, and the copies of documents from criminal case file no. 3518 opened into the abduction of Mr Aslan Ireziyev. 15. On 8 May 2002 the applicants complained of their brother’s abduction by military servicemen to the head of the Avtury town administration. 16. On 9 May 2002 the applicants complained of their brother’s arrest by military servicemen to the Shali district military commander. 17. On 18 November 2002 the applicants complained of the abduction to the military prosecutor’s office of military unit no. 20116 stating that Mr Aslan Ireziyev had been detained by their military servicemen. 18. On 22 November 2002 the military prosecutor’s office of military unit no. 20116 replied to the applicants that they had forwarded requests for information concerning Mr Aslan Ireziyev’s possible arrest and detention to the Chechnya FSB, the Military prosecutor’s office of the UGA (the United Group Alignment) and other law-enforcement agencies. 19. On an unspecified date in November 2002 and then on 25 March 2003 the applicants wrote to the Envoy of the Russian President in Chechnya on Human Rights and Freedoms (the Envoy) complaining of their brother’s abduction on 7 May 2002 by military servicemen in two APCs. 20. On 5 April 2003 the military prosecutor’s office of the UGA forwarded the applicants’ complaint of Mr Aslan Ireziyev’s abduction by military servicemen to the military prosecutor’s office of military unit no. 20116 for examination. 21. On 8 July 2003 the applicants complained to the Chechnya prosecutor’s office of their brother’s abduction from home on 7 May 2002 by military servicemen in APCs. 22. On 29 July 2003 the Shali district prosecutor’s office opened criminal case no. 22110. The decision mistakenly stated that the abduction had taken place on 7 May 2003. The applicants were informed of the initiation of the criminal investigation. 23. On 9 August 2003 the investigators questioned the first applicant whose statement concerning the abduction was similar to the applicants’ account submitted to the Court. In particular, the applicant stated that the abduction took place on 7 May 2002 and that the abduction had been perpetrated by armed men in uniforms who had arrived in two APCs. 24. On 11 August 2003 the first applicant was granted victim status. The decision stated that the abduction had taken place on 7 May 2002. On the same date the first applicant was questioned again. He reiterated his previously given statement, stressed that the abductors had arrived in two APCs and then had taken his brother Mr Aslan Ireziyev to the main military base of the federal forces in Khankala. 25. On 12 August 2003 the investigators examined the crime scene. No evidence was collected. 26. On 13 August 2003 the investigators questioned the third applicant and the applicant’s relatives Ms L.N. and Ms Z.I. whose statements concerning the abduction were similar to the applicants’ account submitted to the Court. 27. On 18 August 2003 the Shali district prosecutor instructed the investigators to establish, amongst other things, whether any law enforcement agencies or military structures had carried out a special operation against Mr Aslan Ireziyev. No replies in the positive were received. 28. On 22 September 2003 the investigators questioned the third applicant’s wife Ms L.K. who stated that Mr Aslan Ireziyev had been abducted in May 2002 by military servicemen who had arrived at their household in two APCs, had been of Russian appearance and spoke unaccented Russian. 29. On 22 September 2003 the investigators questioned the applicants’ brothers Mr M.I. and Mr I.I. both of whom also stated that their brother Mr Aslan Ireziyev had been abducted in May 2002 by military servicemen who had arrived in military vehicles. 30. On 22 October 2003 the investigators again questioned the third applicant’s wife Ms L.K. who stated that Mr Aslan Ireziyev had been abducted by unidentified armed men in camouflage uniforms. 31. On 22 October 2003 the investigators also questioned the third applicant whose statement was similar to that of Ms L.K. 32. On 23 or 27 October 2003 the investigators again questioned the first applicant. No new information was obtained. 33. On 29 October 2003 the criminal proceedings were suspended. The applicants were informed thereof. 34. On 11 May 2005 the supervising prosecutor examined, upon the applicants’ request to this end, the investigation file in criminal case no. 22110 and concluded that the suspension of the investigation on 29 October 2003 was substantiated and lawful. 35. On 19 April 2007 the first applicant complained to the Shali district prosecutor of his brother’s abduction on 7 May 2002 by military servicemen in two APCs and requested that the investigation be resumed and that he be granted access to the case file. 36. On 28 May 2007 the Shali district prosecutor’s office rejected the first applicant’s request stating that there were no grounds to resume the proceedings and that he would be able to access the contents of the case file only upon completion of the investigation. 37. From the documents submitted it follows that the criminal investigation is still pending. 54. The Government stated that the investigation had not obtained any evidence proving that State agents had been involved in the disappearance of the applicants’ brother or that he was dead. 55. The applicants submitted that it had been established “beyond reasonable doubt” that State agents had been involved into the abduction and disappearance of Mr Aslan Ireziyev. In support of that assertion they referred to the ample evidence contained in their submission as well as the contents of the criminal investigation file. They also submitted that they had made a prima facie case that their brother had been abducted by State agents and that the Government failed to provide a plausible explanation to the events. In view of the absence of any news of Mr Aslan Ireziyev for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, they asked the Court to consider him dead. 56. The Court shall examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR2012). 57. The Court has addressed a whole series of cases concerning allegations of disappearances in Chechnya. Applying the abovementioned principles, it has concluded that if applicants make a prima facie case of abduction 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 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, § 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, §§ 77-81, 17 June 2010; Movsayevy v. Russia, no. 20303/07, § 76, 14 June 2011; and Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 58. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as lifethreatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, cited above). 59. The Court has made findings of presumptions of deaths in the absence of any reliable news about the disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years. 60. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file furnished by the Government (see, for example, paragraphs 20-24 and 28-29 above) demonstrate that the applicants’ brother, Mr Aslan Ireziyev, was detained at home in the early hours of 7 May 2002 by a group of armed men and gone missing since. In their submissions to the authorities the applicants consistently maintained that their brother had been abducted by State agents (see, for example, paragraphs 15-17, 20 and 28-29 above). The investigators took steps to verify this theory (see paragraphs 18 and 27 above). In view of all the materials in its possession, the Court finds that the applicants have presented a prima facie case that their brother was detained by State agents and subsequently disappeared. 61. The Government did not provide a satisfactory and convincing explanation for the events in question. Their arguments are in contradiction to the evidence reviewed by the Court and insufficient to discharge them of the burden of proof which has been shifted to them in this case. 62. Bearing in mind the general principles enumerated above, the Court finds that Mr Aslan Ireziyev was taken into custody by State agents on 7 May 2002. In view of the absence of any reliable news of him since that date and the life-threatening nature of such detention (see paragraph 58 above), the Court also finds that Mr Aslan Ireziyev may be presumed dead following his unacknowledged detention.