Last Updated on November 21, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 11708/11
Isita Amsiyevna MURTAZALIYEVA and Others
against Russia
The European Court of Human Rights (Third Section), sitting on24 September 2019 as a committee composed of:
Georgios A. Serghides, President,
Branko Lubarda,
Erik Wennerström, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 31 December 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are three Russian nationals, Ms IsitaMurtazaliyeva, born in 1946, Mr RuslanMurtazaliyev, born in 1966, and Ms ZaynapYegiyeva, born in 1975.
2. The applicants were represented by lawyers from MateriChechni, an NGO. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. Notice of the complaints was given to the Government.
A. The circumstances of the case
4. The first, second and third applicants are respectively the mother, the brother and the wife of Mr Islam Murtazaliyev, who was born in 1974.
1. Disappearance of Mr Islam Murtazaliyev and subsequent events
5. On 25 November 2002 Mr Islam Murtazaliyev and his acquaintance Mr Adlan (also known as Beslan) Daudov left the town of Gudermes for Grozny in a silver VAZ-21099 car and did not return.
6. According to the applicants, state agents stopped them at a road checkpoint next to Khankala village and took them to the Khankala military base.
2. Subsequent events
7. Several days later Mr AdlanDaudov’s acquaintance, Mr Doguiev, saw a silver VAZ-21099 car allegedly belonging to Mr AdlanDaudov. It was driven by men of Slavic appearance. Mr Doguiev had a short conversation with them. Thereafter he saw the car entering the premises of the Khankala military base.
3. Investigation into the disappearance
8. On an unspecified date in 2004 the applicants complained of the abduction to the Gudermes District prosecutor’s office in Chechnya and the Oktyabrskiy District prosecutor’s office in Grozny.
9. On 5 June 2004 the Gudermes District prosecutor’s office opened criminal case no. 35036 under Article 126 of the Criminal Code (abduction). The Government did not submit a copy of the investigation file. From the documents submitted by the applicants it appears that the investigation proceeded as follows.
10. On an unspecified date the investigators obtained information that the missing men had allegedly been invited to the military base by the commander of military unit no. 47477, Officer A.K.
11. On 12 August 2005 the investigators summoned Officer A.K. to appear for questioning. In response the military authorities informed them that he had left the military unit.
12. On 28 August 2005 the investigators suspended the proceedings for failure to identify the perpetrators.
13. On 31 May 2010 the investigators resumed the proceedings and granted victim status to the first applicant.
14. On the next day, 1 June 2010, the proceedings were suspended again.
15. On 9 June 2010 the investigators granted the first applicant full access to the investigation file at her request.
16. On an unspecified date in 2010 the first applicant requested the assistance of the Chechen Parliamentary Committee for the Search for the Disappeared in the search for her son. Her request was forwarded to the investigators on 9 June 2010.
17. On 9 July 2010 the deputy head of the Gudermes inter-district investigative committee overruled the suspension decision of 1 June 2010 and ordered that the investigation be resumed.
18. On 26 July 2010 the investigators questioned Mr Doguiev (his statements are described in paragraph 7 above).
19. On 12 November 2010 the investigators requested that the military authorities question Officer A.K. The outcome of that request is unknown.
20. It appears that the proceedings are still unresolved.
4. Proceedings against the investigators
21. On 29 June 2010 the first applicant lodged a complaint with the Gudermes Town Court seeking to have the investigators’ decision to suspend the proceedings on 1 June 2010 quashed and the investigation resumed. On 13 July 2010 the court dismissed the first applicant’s complaint, taking into account that the investigation had already resumed on 9 July 2010. An appeal lodged by the first applicant against the court’s decision was dismissed by the Chechen Supreme Court on 25 August 2010.
B. Relevant domestic law and international materials
22. For a summary of the relevant domestic law and international and domestic reports on disappearances in Chechnya and Ingushetia, see Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-59 and §§ 69-84, 18 December 2012).
COMPLAINTS
23. Relying on Article 2 of the Convention, the applicants complained that their relative had been abducted and killed by State agents and that the authorities had failed to investigate the matter effectively.
24. Under Article 3 of the Convention, they complained that they had endured mental suffering as a result of their relative’s disappearance and the authorities’ reaction thereto.
25. Under Article 5 of the Convention, they complained of the unlawfulness of their relative’s detention by State agents.
26. They further argued that, contrary to Article 13 of the Convention, they had had no available domestic remedies against the alleged violation of Articles 2, 3 and 5 of the Convention.
THE LAW
A. The parties’ submissions
1. The Government
27. In their observations, the Government argued that the applicants had lodged their application with the Court more than six months after the date on which they should have become aware of the ineffectiveness of the investigation. They pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities between 23 August 2005 and 31 May 2010, when the proceedings in the case had lain dormant. Therefore, according to the Government, the application should be declared inadmissible as lodged “out of time”.
2. The applicants
28. The applicants submitted that they had complied with the six‑month rule. They had searched for Mr Islam Murtazaliyevon their own and had contacted the investigators when needed to provide them with the required information. The investigators persuaded them that the effectiveness of the investigation was not properly reflected by the suspensions because operational-search activity in the case was ongoing. The applicants contested the Government’s argument about their passive behaviour in the criminal proceedings, stating that between 23 August 2005 and 31 May 2010 they had visited the investigators in person, but the investigators had refused to either receive them or provide them with any document in that regard. Lastly, the applicants submitted that with the passage of time the investigation had appeared to be more effective. As soon as the applicants had realised that that was not the case, they had lodged their application with the Court.
B. The Court’s assessment
29. The Court observes that the applicants lodged their application with the Court on 31 December 2010, that is to say more than eight years and one month after the alleged abduction of their relative on 25 November 2002 (see paragraph 5 above). At the time of their application the investigation was formally ongoing.
30. The applicants neither specified the dates when they submitted the first abduction complaint to the domestic authorities, nor provided the Court with any documents to this end. In such circumstances the Court has to assume that the abduction complaint was made no earlier than June 2004, the month when the criminal investigation into the incident was opened. No explanation has been provided as to why the applicants waited for about eighteen months before lodging a complaint of abduction with the domestic authorities. Such conduct on the part of the applicants might have been the cause of the inevitable subsequent loss of evidence.
31. The Court observes that the parties disagreed on whether the applicants maintained contact with the investigators between 23 August 2005 and 31 May 2010. In the absence of any documents supporting the applicants’ argument, the Court cannot accept it. This is particularly so given that the applicants neither complained about the behaviour of the investigators to the supervising investigative authorities or the domestic courts, nor attempted to make any formal requests for information. Since the applicants are close relatives of Mr Islam Murtazaliyev, they could be expected to have displayed due diligence and to have taken the requisite initiative in order to inform themselves as to whether any progress was being made in the investigation into the disappearance of their family member. However, they remained passive in respect of the seemingly dormant domestic investigation, unlike the applicants in many other similar Chechen disappearance cases (see, amongst many other authorities, Kaykharova and Others v. Russia, nos. 11554/07 and 3 others, § 129, 1 August 2013, and Gakayeva and Others v. Russia, nos. 51534/08 and 9 others, § 318, 10 October 2013). The applicants’ inactivity seems to indicate that they were not expecting any important investigative developments which could have succeeded in establishing the whereabouts of their relative, identifying the perpetrators, or making any other significant progress in having the crime resolved (compare to Dzhabrailova and Others v. Russia (dec.) [Committee], nos. 3752/13 and 9 others, § 192, 7 May 2019, where the Court criticised the applicants’ inactivity over a period of between four and five years).
32. The Court further observes that over the course of more than eight years of proceedings the investigation into the disappearance has not attained any tangible results and no suspects have been identified. The investigation was suspended without any serious steps having been taken by the investigators and without victim status having been granted to the applicants (see paragraph 12 above). It then remained inactive between 23 August 2005 and 31 May 2010 (see paragraphs 12 and 13 above). If the applicants remained unaware of the ineffectiveness of the investigation despite such a significant lull in the proceedings, the Court considers that this was a consequence of their own negligence (see, for example, Findik and Omer v. Turkey (dec.), nos. 33898/11and 35798/11, § 15, 9 October 2012).
33. In view of the above, the Court finds that the applicants have not shown convincingly that any concrete advances were being made that could justify their inactivity for more than eight years. It finds that, following the suspension of the investigation in August 2005, the applicants ought to have concluded considerably earlier, and certainly more than six months before they lodged the present application, that the investigation was ineffective. The Court does not find that their initiative in respect of the investigation only a few months prior to their application to the Court in 2010 can lead to any different conclusion (see Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, § 47, 31 May 2016). Accordingly, the Court finds that the present application must be rejected for failure to comply with the six‑month time-limit set out in Article 35 §§ 1 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 October 2019.
Stephen Phillips Georgios A. Serghides
Registrar President
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