Last Updated on November 21, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 67744/11
Mukhamet-Ali Zakrailovich BAKAYEV 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 6 October 2011,
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: Mr Mukhamet-Ali Bakayev who was born in 1955 (“the first applicant”), Ms Roza Bakayeva who was born in 1958 (the second applicant), and Mr Abumuslim Bakayev who was born in 1984 (“the third applicant”).
2. The applicants were represented by lawyers from NGO Materi Chechni. The Russian Government (“the Government” ) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. Notice of the complaints was given to the Government.
A. The circumstances of the case
4. The first and second applicants are the parents of Mr Akhmed Bakayev, who was born in 1978. The third applicant is his brother. The applicants live in the village of Alkhazurovo, Chechnya.
1. Abduction of Mr Akhmed Bakayev
5. At about 11 p.m. on 29 July 2002 Mr Akhmed Bakayev and his relative Mr M.Kh. were near a bakery in the Kirova neighbourhood of the Zavodskoy district of Grozny, when a group of armed men in military uniforms and balaclavas, who spoke unaccented Russian, seized them and took them to an unknown destination. Mr M.Kh.’s passport and shoes were left at the place of the incident and later found by his wife. The whereabouts of the abducted men remains unknown.
2. Official investigation into the abduction
6. On 27 June 2003 the first applicant contacted the Zavodskoy district prosecutor’s office in Groznyrequesting that a criminal case into the abduction of his son be opened.
7. On 9 July 2003 the Zavodskoy district prosecutor’s office in Grozny opened criminal case no. 30111 under Article 126 of the Criminal Code (abduction).
8. On 13 July 2003 the first applicant was granted victim status and questioned. Referring to hearsay evidence, he made the submission described in paragraph 5 above.
9. On 14 and 15 July 2003 the investigators questioned Mr M.Kh.’s uncle and aunt, who alleged that Mr Akhmed Bakayev and Mr M.Kh. had been arrested for walking in the town at night.
10. On 9 September 2003 the investigation was suspended for failure to identify the perpetrators.
11. On 28 October 2009 the investigation was resumed.
12. On 30 October 2009 the investigators granted victim status to Mr Akhmed Bakayev’s wife and questioned her. She stated that her husband had disappeared on 29 July 2002 and that according to rumours he had been abducted by armed persons.
13. On 12 November 2009 the investigation was suspended for failure to identify the perpetrators.
14. On 30 June 2010 the above-mentioned decision was overturned by the deputy head of the Zavodskoy inter-district investigative committee. The latter ordered the investigators to reopen the investigation, examine the crime scene, identify and question witnesses, gather information about Mr Bakayev’s personality and take other investigative steps.
15. On 28 July 2009 the investigators questioned the first and second applicants and Mr M.Kh.’s wife (in the original document the date of the first applicant’s interview was mistakenly noted as 28 July 2009; at that time the proceedings were suspended and no investigative actions could be performed). They confirmed the hearsay evidence about the abduction of Mr Akhmed Bakayev and Mr M.Kh. by armed men.
16. On the same day, 28 July 2009, the investigators examined the crime scene. No evidence was collected.
17. On 2 August 2010 the investigation was suspended. It was subsequently resumed on 21 July 2011 and 10 April 2012, and suspended on 21 August 2011 and 22 May 2012 respectively.
18. In the meantime the Urus-Martan Town Court, at the first applicant’s request, declared Mr Akhmed Bakayev dead.
19. It appears that the investigation into his abduction is still pending.
3. Proceedings against the investigators
20. On 23 June 2010 and 29 June 2011 the first applicant lodged a complaint with the Zavodskoy District Court in Grozny challenging the investigators’ decisions to suspend the investigation and their failure to take basic investigative steps. The court dismissed the complaints on 22 July 2010 and 21 July 2011 respectively. The first applicant appealed against the decision of 22 July 2010 to the Supreme Court of Chechnya, which dismissed his appeal on 25 August 2010.
B. Relevant domestic law and international materials
21. 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, 8300/07, 50184/07, 332/08 and 42509/10, §§ 43-59 and §§ 69-84, 18 December 2012).
COMPLAINTS
22. Relying on Article 2 of the Convention, the applicants complained that their relative had allegedly been abducted and killed by State agents and that the authorities had failed to investigate the matter effectively.
23. Under Article 3 of the Convention, the applicants complained that they had endured mental suffering as a result of their relative’s disappearance and the authorities’ reaction thereto.
24. Under Article 5 of the Convention, the applicants complained of the unlawfulness of their relative’s detention by State agents.
25. The applicants further argued that, contrary to Article 13 of the Convention, they had had no available domestic remedies against the violation of Articles 2, 3 and 5 of the Convention.
THE LAW
A. The parties’ submissions
1. The Government
26. 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 ensuing investigation. They pointed out that the applicants had remained passive and had not maintained contact with the investigating authorities between 9 September 2003 and 28 October 2009, when the proceedings in the case had remained dormant. Therefore, according to the Government, the application should be declared inadmissible as lodged “out of time”.
27. The Government also noted there was no evidence that State agents had been involved in the alleged abduction.
2. The applicants
28. The applicants submitted that they had complied with the six‑month rule. They had taken all possible steps within a reasonable time to initiate the search for their missing relative and assist the authorities in the proceedings. The delay in opening the criminal case should be attributed to the investigating authorities, which had not reacted promptly to their claim. There had been no excessive or unexplained delays in lodging their application with the Court, which had been brought as soon as they had considered the domestic investigations to be ineffective.The armed conflict taking place in Chechnya at the material time had led them to believe that investigative delays were inevitable. Owing to their lack of legal knowledge, insufficient command of the Russian language and lack of financial means to hire a lawyer, they had been unable to assess the effectiveness of the investigations. It had only been with the passage of time and in view of the lack of information from the investigating authorities that they hadbegun to doubt the effectiveness of the investigation andhadstarted looking for free legal assistance to assess the effectiveness of the proceedings, before subsequently lodging their application with the Court without undue delay.
29. The applicants also stated that they had prima facie evidence of Mr Akhmed Bakayev’s abduction by State agents. In particular, they referred to the camouflage uniforms of the perpetrators, the automatic weapons with which they had been equipped, and the fact that they had spoken unaccented Russian.
B. The Court’s assessment
30. The Court observes that the applicants lodged their application with the Court on 6 October 2011, that is to say more than nine years and two months after the alleged abduction of their relative on 29 July 2002 (see paragraph 5 above). At that time the investigation was formally pending.
31. The material in the Court’s possession shows that the applicants informed the domestic authorities about the abduction of their relative almost eleven months after the incident (see paragraph 6 above). There is no explanation as to why they waited for so long before lodging the abduction complaint. Such conduct on the part of the applicants might have resulted in the inevitable loss of important material evidence.
32. The Court further observes that the applicants did not maintain contact with the investigating authorities between 9 September 2003 and 28 October 2009, when the investigation was suspended (see paragraphs 10 and 11 above). In its view, such passive behaviour was unjustified. Since the applicants are close relatives of Mr Akhmed Bakayev, they could be expected to display due diligence and take the requisite initiative in order to inform themselves whether any progress was being made in the investigation into the disappearance of their family member. However, they remained idle in respect of the seemingly dormant domestic investigation, unlike applicants in many other similar Chechen disappearance cases (see, amongst many other authorities, Kaykharova and Others v. Russia, nos. 11554/07,7862/08, 56745/08 and 61274/09, § 129, 1 August 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, § 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 significant progress in having the crime resolved (compare to Dzhabrailova and Others v. Russia (dec.) [CTE], no. 3752/13 and 9 Others, § 192, 7 May 2019, where the Court criticised the fact that the applicants had remained inactive for between four and five years).
33. The Court further observes that for more than eight years of the 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 (see paragraph 14 above). It then remained inactive between 9 September 2003 and 28 October 2009 (see paragraphs 10 and 11 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).
34. In view of the above, the Court finds that the applicants have not shown convincingly that any concrete advances were being made in the investigation that could justify their inactivity. It finds that following the suspension of the investigation on 9 September 2003, the applicants ought to have concluded a considerable time before they did so – and certainly more than six months before lodging the present application – that the investigation was ineffective. The Court does not find that their initiative in respect of the investigation prior to their application to the Court in 2011 leads 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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