Communicated on 13 July 2018
THIRD SECTION
Application no. 21129/09
Shamaan Zavadinovich BANZHAYEV
against Russia
lodged on 26 March 2009
STATEMENT OF FACTS
The applicant, Mr Shaaman Banzhayev, is a Russian national who was born in 1966 and lives in the village of Komsomolskoye, Gudermes district, the Chechen Republic. He is not legally represented before the Court.
The applicant is the widower of Ms Malika Vanayeva, who was born in 1975 and the brother of Mr Shirvani Banzhayev, who was born in 1969.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Killing of the applicant’s wife and abduction of his brother
1. The killing of Ms Malika Vanayeva and the ensuing investigation
(a) Bombing of Gezenchu on 25 August 2001
In 2001, during the active phase of the military counter-terrorist operation of the Russian federal forces in the Chechen Republic, the applicant, his wife Ms Vanayeva and their four minor children were living in the village of Gezenchu (also spelt as Gezinchu) in the Vedeno district. The village’s population comprised fewer than a dozen families.
In August 2001 the village was subjected to shelling by the Russian artillery on several occasions.
On 25 August 2001 (in the documents submitted the date was also cited as 25 August 2005) the applicant and his wife were at home. At about 3 or 4 p.m. they heard sounds of explosions coming from the nearby forest in the vicinity of the village of Shirdi-Mokkh. The applicant’s wife told him that their children were playing with their nephews in the nearby house of the applicant’s brother, Mr Shirvani Banzhayev.
Immediately afterwards a bomb exploded in the courtyard of Mr Shirvani Banzhayev’s house and then a few more close by. The applicant’s children ran home scared. The applicant asked his wife to hide them in the basement and ran to his brother’s house to offer help in case anyone had been wounded. The shelling stopped for a few minutes.
On the way to his brother’s house, the applicant heard a gunshot − which had been fired from the direction of Engenoy (also spelt as Enginoy) village − and fell to the ground, as the bullet had hit his left leg. Shortly afterwards a bomb exploded next to him and he saw his sister and sister-in-law on the ground, both bleeding heavily. The applicant’s brother Mr Islam Banzhayev and their relative Mr R.G. were close to the applicant’s house along with several other relatives, trying to hide from the resumed bombing.
As a result of the second round of shelling, the applicant’s wife and his relative R.G. were killed on the spot by a bomb which had become stuck in a tree next to the house and had then exploded, while his youngest son Turpal-Ali and his relative Sh.G. suffered shrapnel wounds.
The applicant and his wounded relatives were immediately taken to the Sayasan hospital in the Nozhay-Yurt district, in the vicinity of Engenoy, and provided with medical help.
According to death certificate no. 52 issued by the local administration and dated 6 December 2005, Ms Malika Vanayeva died on 25 August 2001 from multiple shrapnel wounds to the head and the chest. Her death was officially registered on 22 October 2001.
In the applicant’s submission, following his emergency treatment in Sayasan, he had been transferred to hospital no. 2 in Gudermes and subsequently to a hospital in Argun. He stated that, during the weeks he was hospitalised, some uniformed representatives of the authorities had questioned his wounded relatives about the shelling of Gezenchu.
In 2002, due to frequent shelling, all of the residents left Gezenchu village and the settlement became abandoned.
(b) Complaints about the bombing and the official investigation into events
On 4 September 2001 and again on 7 September 2001 the applicant’s brother, Mr Shamkhan Banzhayev – who was the head of the village administration at the time – lodged an official complaint about the shelling with the head of the Chechnya administration, the Chechnya military prosecutor, the Chechnya military commander and the Chechnya prosecutor. He stated that their village had been subjected to unprovoked shelling by the military unit stationed next to Engenoy in the Nozhay-Yurt district. As a result of the deliberate actions of the military servicemen who had launched between 12 and 15 bombs, four families and their houses had been destroyed, six people had been wounded and two had been killed. He argued that, since only seven families had been living in the village at the time, the federal forces could readily have ascertained that, due to its size, the village would have been unable to harbour illegal armed groups without the authorities’ knowledge. He provided the information about the people who had been killed and wounded during the shelling and stated that on 24 August 2001 he and a number of other representatives of the local community had gone to the military base in Engenoy and spoken with them in an effort to prevent any bombing. The military officers had told them that their orders were usually given to them by the Khankala headquarters, but had promised to keep in mind their request. On 25 August 2001 the village had nonetheless been shelled. Mr Banzhayev requested that the military servicemen responsible be identified and prosecuted.
On 19 September 2001 Mr Banzhayev again complained about the shelling, this time to the Vedeno prosecutor and the head of the Vedeno district administration. He described in detail the circumstances of the shelling and its casualties. He requested that the incident be investigated with the participation of military prosecutors and that the perpetrators amongst the Russian federal forces be prosecuted. He explained that on 24 August 2001 he and a number of representatives of the local community, including several teachers, had gone to the military unit stationed next to the Engenoy village to tell them that there was no reason to shell Gezenchu. In reply, the military servicemen had told them that they had received their orders from the Khankala headquarters but promised not to bomb Gezenchu. However, on the following day, 25 August 2001, they had subjected the village to bombing, disregarding the fact that it was populated by civilians. The applicant’s brother enclosed with the complaint a number of medical certificates confirming the injuries sustained by the Gezenchu residents.
On 24 November 2001 the interim Chechnya military commander informed Mr Shamkhan Banzhayev that:
“... concerning the complaint of the shelling on 25 August 2001 of Gezenchu resulting in the injuries to the local residents, the Vedeno prosecutor’s office is carrying out an inquiry to decide whether to open a criminal case against the perpetrators ...”
From the documents submitted it appears that between 2001 and 2002 the applicant’s brother Mr Shamkhan Banzhayev (see below) petitioned various authorities in his capacity as the head of Gezenchu administration trying to have the perpetrators of the shelling established and prosecuted.
According to the applicant, on 15 November 2002 Mr Shamkhan Banzhayev was abducted, allegedly by military servicemen who wanted to stop him from pushing the authorities to investigate the shelling. After his abduction the applicant’s brother had remained missing.
After his brother’s disappearance, the applicant and his family were concerned for their personal safely. It is unclear whether they continued to request that an investigation into the shelling be initiated. However, at some point in early 2007 the applicant complained about the lack of investigation into the shelling and prompted the authorities to initiate a criminal investigation (see below).
On 23 July 2007 the Vedeno prosecutor’s office (the investigators) opened criminal case no. 23031. The decision stated:
“... on 25 August 2001 unidentified servicemen subjected to artillery shelling the village of Gezenchu in the Vedeno district from the direction of Engenoy village in the Nozhay-Yurt district. As a result, M. Vanayeva and R.G. were killed ...
The actions of the unidentified servicemen provide sufficient grounds for them to be classified as a crime punishable under part 3 of Article 109 [causing death to two or more persons by negligence] ...”
On 2 August 2007 the investigators granted the applicant victim status in the criminal case and questioned him. The applicant’s description of the shelling was similar to his submission before the Court. In addition, he stated that his brother, Mr Shamkhan Banzhayev, as the head of Gezenchu administration, had negotiated with the military unit stationed next to Engenoy that they would not shell Gezenchu, but to no avail. The shelling had been carried out by the military unit from its location next to Engenoy the day after his visit. In addition, the applicant stated that Mr Shamkhan Banzhayev had been abducted in November 2002.
On 23 September 2007 the investigators suspended the investigation in the criminal case for failure to establish the perpetrators. It is unclear whether the applicant was informed about this suspension.
On 30 October 2007 the deputy head of the Shali Investigations Committee (the investigators’ supervisor) overruled the suspension as premature and unsubstantiated and ordered a number of steps to be taken.
On 1 December 2007 the investigators again suspended the proceedings. From the documents submitted it does not appear that the steps ordered on 30 October 2007 were ever taken. It appears that the applicant was not informed of the suspension.
From the documents submitted it appears that the investigation of the criminal case is still pending.
(c) The applicant’s complaint against the investigators
On 17 November 2008 the applicant complained to the Shali District Court that the investigation into the shelling and the killing of his wife had been ineffective and requested that the court instruct the investigators to resume the investigation. In particular, he argued that the investigators had not taken any effective steps to have the crime resolved and that they had even tried to cover it up. The applicant pointed out that it would not be very difficult to establish what type of weapons had been used for the shelling or to identify the military unit which had such ammunition.
On 19 December 2008 the Shali District Court partially allowed the complaint, after stating that the applicant had failed to specify which exact steps the investigation would need to take. The court ordered the investigators to grant the applicant’s requests and allow him to access the contents of the criminal case file within the limits prescribed by the domestic regulations.
2. Abduction of Mr Shamkhan Banzhayev
(a) Abduction of the applicant’s brother
According to the applicant’s submission, at about 3 p.m. on 15 November 2002 his brother was abducted by armed servicemen close to the Vedeno military commander’s office in Tsentralnya Street and has been missing ever since. The abductors approached him at the entrance checkpoint as he was leaving the military commander’s office, forced him in a UAZ-type minibus (tabletka) and drove off.
The applicant did not witness the abduction, but from the documents submitted it transpires that his version of the events is supported by the material in the criminal case file (see below).
According to the applicant, his brother’s abduction was perpetrated by military servicemen who wanted to stop him from requesting the prosecution of the servicemen responsible for the shelling of Gezenchu on 25 August 2001.
(b) Official investigation into the events
On 26 November 2002 the applicant complained to the Vedeno district prosecutor’s office about his brother’s abduction:
“... at about 4 p.m. on 15 November 2002 my brother Shamkhan Banzhayev, the head of the Gezenchu village administration, was arrested when exiting the checkpoint at the entrance to the military commander’s office by men in military uniforms and balaclavas. No explanations were given and no charges were brought against him.
My brother has been missing ever since his arrest and there has been no news concerning his whereabouts ...”
No reply was given to this complaint.
On 23 June 2003 the applicant again complained about his brother’s abduction, this time to the Vededo district police department. His complaint was officially registered under number 62 and on 2 July 2003 the police opened a search file. It appears that the applicant was informed about the opening of the search file but no criminal investigation was initiated. However, the applicant was not informed of this fact.
On 22 June 2005 the interim Vedeno prosecutor decided to initiate a criminal investigation into the abduction of Mr Shamkhan Banzhayev, having stated that:
“... during the examination of the [the Vedeno district] police station and their registration logs, it was discovered that a criminal case had been opened in response to Mr R. Banzhayev’s complaint. However, neither a decision to open the criminal case nor a refusal to open it had been formulated. Therefore, [...] it is decided to open a criminal case [now] ...”
It appears that the applicant was provided with a copy of the above decision.
On 10 January 2006 the Vedeno district prosecutor’s office opened criminal case no. 53028 into the abduction of the applicant’s brother.
From the documents submitted it appears that the investigation of the criminal case is still pending.
B. Relevant domestic law and international materials
For a summary of the relevant domestic law see Abuyeva and Others v. Russia, no. 27065/05, §§ 165-168, 2 December 2010 and Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, §§ 43-84, 18 December 2012.
COMPLAINTS
The applicant complains under Article 2 of the Convention that in August 2001 his wife was killed as a result of shelling by the Russian military and in November 2002 his brother was abducted by State agents in retaliation for his attempt to have the perpetrators of the shelling prosecuted and that the authorities failed to effectively investigate the incidents. Under Article 13 of the Convention, the applicant alleges that he had no effective domestic remedies against the alleged violations under Article 2 of the Convection.
QUESTIONS TO THE PARTIES
1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention? In particular, were there “excessive or unexplained delays” on the applicant’s part in submitting his complaints to the Court, and have there been considerable lapses of time or significant delays and lulls in the investigative activity, which could have an impact on the application of the six-month time-limit (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, §§ 162, 165 and 166, ECHR 2009)?
2. Has the right to life of the applicant’s wife Ms Malika Vanayeva, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the death of the applicant’s wife Ms Vanayeva result from a use of force which was absolutely necessary?
3. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
4. Has the right to life of the applicant’s brother Mr Shamkhan Banzhayev, ensured by Article 2 of the Convention, been violated in the present case?
5. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII and Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 217, 18 December 2012), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
6. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 2 as required by Article 13 of the Convention?
7. The Government are requested to provide a copy of all the contents of the investigation file in criminal case no. 23031 opened in connection with the shelling of the Gezenchu village and the killing of Ms Malika Vanayeva and a copy of all the contents of the investigation file in criminal case no. 53028 opened in connection with the abduction of Mr Shamkhan Banzhayev.
Full & Egal Universal Law Academy