ALIYEVA AND OTHERS v. RUSSIA (European Court of Human Rights)

Communicated on 17 September 2019

THIRD SECTION
Application no. 18424/17
Yelizaveta Magometovna ALIYEVA and others
against Russia
lodged on 23 February 2017
STATEMENT OF FACTS

1.  The application was lodged by four Russian nationals:

(a)  Ms Yelizaveta Magometovna Aliyeva who was born in 1969 and lived in the Nazranovskiy district of the Ingushetiya Republic;

(b)  Ms Zalina Mukharbekovna Yevloyeva born in 2002;

(c)  Ms Zarema Mukharbekovna Yevloyeva born in 2003, and

(d)  Mr Magomed-Ali Mukharbekovich Yevloyev born in 2004.

2.  The applicants are related through Ms MaremMagometovnaAliyeva, born in 1978, who was the sister to the first applicant and the mother to the other applicants.

3.  The applicants are represented before the Court by Ms Vanessa Kogan and Mr Egbert Wesselink from the Stichting Justice Initiative, a non-governmental organisation based in Utrecht, the Netherlands.

A.    The circumstances of the case

4.  The facts of the case, as submitted by the applicants, may be summarised as follows.

1.   Marem Aliyeva’s history of abuse

5.  In 2001, Ms MaremAliyeva entered into a religious marriage with Mr MukharbekYevloyev. The second, third and fourth applicants were born of that union. Mr Yevloyev also had two children by his first marriage and three children by his second marriage which was dissolved in 2009.

6.  As Ms Aliyeva testified later, Mr Yevloyev had been a violent abuser from the first days of their marriage. He would call her names, beat her up, choke her, and forcefully shave her head. She did not complain to the police because he bragged about his connections with law enforcement authorities. Over the years she attempted to run away from him five or six times, seeking refuge in her sister’s house. Each time her half-brothers returned her to Mr Yevloyev.

7.  In May 2015 Mr Yevloyev brought a woman to the house and beat up MaremAliyeva. She took her children and went to her sister’s house. A few days later Mr Yevloyev swore on the Quran that he would never raise a hand on her; she agreed to come back.

2.   Marem Aliyeva’s attempted escape and the abduction of Yelizaveta Aliyeva and her husband in July 2015

8.  On 7 July 2015 Marem Aliyeva decided to break up with her abusive husband. She took her three children and their half-sister Maret and moved to YelizavetaAliyeva’s house.

9.  On 9 July 2015 Mr Yevloyev came to YelizavetaAliyeva’s house and threatened her with death if she refused to tell him where Marem was. He carried a firearm and was in the company of his male relatives. She called the police and they left.

10.  On the following day Mr Yevloyev and five men – all carrying firearms and baseball bats – broke into YelizavetaAliyeva’s house, beat up Yelizaveta and her husband, put them in the back of a Land Rover car and drove off. Witnesses called the police; a police patrol chased the kidnappers’ car. The kidnappers managed to get ahead and hide their car in a dark passageway where Yelizaveta and her husband got out of the car and ran way.

11.  Mr Yevloyev reported Marem’s escape to the police and accused her of stealing money from him. Wanted notices featuring Marem’s photograph and describing her as a suspected thief were posted around town. On 15 July 2015 the investigator took a statement from Mr Yevloyev. He stated that his son had alerted him to the disappearance of Marem, of his eldest daughter Maret and of three children. On his return home, he had discovered that their identity papers and a sum of money had gone missing from the safe deposit box. Previously, he had never given any money to Marem, he had left household money with his son. His relationship with Marem had soured because he had found text messages from men in her mobile phone. They had had rows which had sometimes led to “roughing-up” (рукоприкладство) on his part and to her leaving the house.

12.  On 16 July 2015 Marem and YelizavetaAliyeva filed complaints with the Nazran police, describing a history of assaults on Marem and the aborted kidnapping of Yelizaveta. They asked the police to obtain written undertakings from Mr Yevloyev that he would not harm them.

13.  On 17 July 2015 Marem and her children went to the town of Malgobek and from there to the capital city of Magas, while Maret’s mother came to pick her up. On 27 July they moved to Makhachkala in Dagestan and later found accommodation in a shelter in the Moscow Region for two weeks. On 20 August they went to Minsk in Belarus. On 27 August Mr Yevloyev picked them up in Minsk and brought them back.

3.   Marem Aliyeva’s disappearance in September 2015

14.  On 19 September 2015 Marem called Yelizaveta and told her that her husband had assaulted her. She said she feared for her life and asked Yelizaveta to alert the police if she stopped responding. Thirty minutes later Yelizaveta called back to check on her but could not get through. She got in touch with HavaAliyeva, their third sister, and they came together to Marem’s house. Marem was nowhere to be seen. Mr Yevloyev told them that she had run away with his money. Children were crying. They said that their father had been beating their mother all night long.

15.  On the following day YelizavetaAliyeva filed a police report about the disappearance of Marem. On 5 October 2015 the Investigations Committee of the Ingushetiya Republic opened an investigation into a suspected murder of Marem. Mr Yevloyev did not initiate a search for his wife, claiming that he “had no health for it”.

4.   Investigation into the kidnapping and disappearance

16.  On 2 October 2015 YelizavetaAliyeva asked the Investigations Committee of the Ingushetiya Republic to apply witness protection measures to her person, children, and property. She referred to constant threats from Mr Yevloyev and his son Sultan. On 18 October 2015 a hand grenade exploded in Yelizaveta’s courtyard. No one was injured and the police did not open a criminal case.

17.  In the inquiry into Marem’s disappearance, on 7 October 2015 the investigator ordered a search of Mr Yevloyev’s residence. A sports jacket with a dark-brown stain was found and removed. On 15 November 2015 YelizavetaAliyeva was granted the status of injured party in that case.

18.  On 17 November 2015 the police instituted criminal proceedings against Mr Yevloyev on the charges of kidnapping Yelizaveta and her husband and trespassing into their residence (Article 126 and 139 of the Criminal Code). On 14 December 2015 Yelizaveta’s husband sent a written statement to the prosecutor, claiming that the kidnapping had never happened and that he, his wife and his children had perjured themselves. On 29 December 2015 HavaAliyeva stated to the police that Mr Yevloyev had come to her place and asked her “to calm down her sister Yelizaveta so that she stopped complaining”. He also said that “no one would charge him with Marem’s murder as long as the body had not been found”. On the same day counsel who assisted Yelizaveta withdrew from the case and explained that the police had warned her of a serious threat to the life.

19.  On 30 December 2015 YelizavetaAliyeva’s application for protection measures was granted but, in her submission, the measures were ineffective to the extent that they did not cover her children: they felt insecure and stopped going to school. Moreover, protection officers did not prevent Mr Yevloyev’s family members from visiting Yelizaveta, three of them had come to ask her about the amount of money that would make her withdraw her complaints.

20.  On 20 January 2016 Mr Yevloyev was detained. On 22 January 2016 the Sunzhenskiy District Court put him under house arrest. On 29 March 2016 the Sunzhenskiy District Investigations Committee petitioned the court to apply the custodial measure, citing his threats against YelizavetaAliyeva. On 12 April 2016 the Sunzhenskiy District Court dismissed the petition, holding that Mr Yevloyev was too sick to be held in custody.

21.  On 2 June 2016 counsel for YelizavetaAliyeva complained to a court of an ineffective investigation into her kidnapping and into Marem’s disappearance, and also of a failure to provide effective witness protection measures. On 20 June 2016 the Sunzhenskiy District Court dismissed the complaint, pronouncing the actions by the investigators to have been lawful and justified. On 23 August 2016 the Supreme Court of the Ingushetiya Republic upheld the decision on appeal.

5.   Judicial proceedings

22.  Mr Yevloyev and his nephew Murad Paragulnov were charged with abduction and trespassing. The bill of indictment described the other four attackers as “unidentified individuals”. YelizavetaAliyeva claimed to have known at least two of them; those were Mr Yevloyev’s brother Musa and his son Sultan.

23.  The trial was held in the Magasskiy District Court in the Ingushetiya Republic. Having heard eye-witnesses to the trespassing and abduction of YelizavetaAliyeva and her husband, on 20 February 2017 the court found the defendants guilty as charged and sentenced Mr Yevloyev on the charge of abduction to six years’ imprisonment in a high-security facility and to a fine on the charge of trespassing. On 25 May 2017 the Supreme Court of the Ingushetiya Republic reviewed their appeals and upheld the conviction.

24.  On 16 August 2017 the Presidium of the Supreme Court of the Ingushetiya Republic upheld, in cassation proceedings, the legal characterisation of the defendants’ actions. However, it absolved the defendants from criminal responsibility on the charge of abduction. Giving a new interpretation of the witness testimony, it found that they had “voluntarily released” YelizavetaAliyeva and her husband “without pre‑conditions, even though they had had a realistic opportunity to continue detaining them”. The Presidium also reduced the amount of fine relating to the charge of trespassing.

25.  Counsel for YelizavetaAliyeva submitted a further cassation appeal to the Supreme Court of the Russian Federation. She pointed out, among other matters, that the Presidium was not competent to make new findings of fact. A copy of the Supreme Court’s decision is not available in the case file.

B.     Material relating to violence against women in the North Caucasus

26.  Life and the Status of Women in the North Caucasus, a 2014 study by Heinrich Böll Foundation on the conditions of life for women in Chechnya, Ingushetiya, Dagestan and Kabardino-Balkaria based on 723 questionnaires and 80 interviews, found a considerable difference between the reported level of violence in the respondents’ own families and the perceived frequency of abuse in other households. Out of the four regions, Ingushetiya had the lowest reported levels of violence: 14% of women reported having been pinched, pushed or kicked by their husbands; 3% of women knew someone who had been raped and 18% knew someone who had been beaten; 24% of women had been confronted with “manifestations of jealousy” in their own family, and 35% had witnessed them in other families. Ingush women turned for help to their mothers (25%), sisters (36%) or to no one (41%).

27.  The concluding observations on the eighth periodic report of the Russian Federation (CEDAW/C/RUS/CO/8), which the CEDAW Committee adopted on 27 October 2015, expressed concern “at the increasing prevalence of violence against women in the northern Caucasus” (§ 23) and urged the Russian authorities “to strengthen the capacity of law enforcement authorities to protect women and girls from violence, adopt standardized procedures for the police in all regions of the State party on gender-sensitive investigations and the treatment of victims, and encourage women to file complaints without having to fear retribution or stigma” (§ 24 (b)).

28.  In S.T. v. the Russian Federation (Communication No. 65/2014, 25 February 2019), the CEDAW Committee took the view that by failing to prevent and to effectively investigate the severe physical and psychological violence committed against Ms S.T. by her former husband, the Russian authorities had violated her rights guaranteed under Article 2 (c) and (d), read in conjunction with Article 1, and Article 5 (a) of the CEDAW Convention. Ms S. T.’s former husband had assaulted her with an axe; the courts in the Chechen Republic sentenced him to precisely the time he had spent in pre-trial detention, describing the incident as a “minor offence” which the victim had “provoked” by her “systematic amoral behaviour” consisting of initiating divorce and property division proceedings against the perpetrator. The courts also denied her compensation.

The Committee stated that Russia’s compliance with its obligations under the CEDAW Convention needed to be assessed “in the light of the level of gender sensitivity applied in the judicial handling of the author’s case”. By amending legal classification from attempted murder to a lesser offence of causing bodily harm in a state of temporary insanity, the courts disregarded the perpetrator’s record of domestic violence and the victim’s vulnerable position. They also gave a different weight to statements by witnesses for the victim and for the perpetrator, showing a clear preference for the latter. The Committee concluded that the Russian courts had failed to provide effective legal protection to the victim and to punish adequately the perpetrator (§§ 9.6-9.9).

The Committee also considered that Russia’s failure to adopt comprehensive legislation to prevent and address violence against women directly affected the rights of the victim to claim justice and to have access to effective remedies and protection (§§ 9.10-9.11).

COMPLAINTS

29.  The applicants complain under Article 2, 3 and 14 of the Convention of the Russian authorities’ failure to prevent and to carry out an effective investigation into MaremYevloyeva’s presumed death and previous incidents of domestic violence.

30.  The first applicant also complains under Articles 3 and 8 of the Convention of an ineffective investigation into her abduction.

QUESTIONS TO THE PARTIES

1.  The Government are requested to inform the Court of any recent developments in the investigation into the disappearance of MaremAliyeva and to submit copies of relevant documents.

2.  As regards the alleged violations of Articles 2 and 3 of the Convention as regards the ill-treatment and presumed death inflicted on MaremAliyeva, did the Russian authorities discharge their obligation to protect her against violence administered by her partner? In particular,

(a)  Did the Russian State discharge the obligation to establish and apply effectively a legislative framework for punishing all forms of domestic violence and providing sufficient safeguards for victims?

(b)  Did the Russian authorities discharge the obligation to take the reasonable measures that might have been expected in the circumstances in order to avert a real and immediate risk of ill-treatment or death of MaremAliyeva, of which the authorities knew or should have known?

(c)  Did the Russian authorities discharge the obligation to conduct an effective and diligent investigation into all instances of ill-treatment which had been reported to them and into MaremAliyeva’s disappearance in life‑threatening circumstances?

3.  As regards the alleged violation of Article 14 of the Convention, taken in conjunction with Articles 2 and 3, did the Russian authorities acknowledge the gravity and extent of the problem of domestic violence and its discriminatory effect on women? Did they implement measures for achieving substantive gender equality that would enable MaremAliyeva to live free from fear of ill-treatment or attacks on her physical integrity and to benefit from the equal protection of the law?

4.  As regards the failure to bring the perpetrators of the first applicant’s abduction to account, does this situation disclose the Russian authorities’ failure to discharge its procedural obligation to carry out an effective investigation into the abduction flowing from Articles 3, 5 or 8 of the Convention?

Leave a Reply

Your email address will not be published.

*

code