Communicated on 14 December 2016
THIRD SECTION
Application no. 48057/08
Madina Magomedovna BAPINAYEVA
against Russia
lodged on 7 August 2008
STATEMENT OF FACTS
The applicant, Ms Madina Magomedovna Bapinayeva, is a Russian national, who was born in 1961 and lives in Nalchik. She is represented before the Court by Mr F. Tishayev and Mr R. Lemaitre, lawyers practising in Moscow. The applicant is the mother of Mr Radik Feliksovich Bapinayev.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 3 February 2006 Mr Bapinayev was charged with the attempts to commit terrorist acts, traffic and storage of weapons, participation in an unlawful armed formation.
1. Events of 27 March 2007
According to the national authorities’ version, on 27 March 2007 Mr Bapinayev disobeyed the police order to stop for the identity check. He offered armed resistance to the police officers and attempted to escape by hijacking a passing car. He fired at the car smashing the back window. Mr Bapinayev opened fire on the police officers when they caught up with him. When police officer N. fired at Mr Bapinayev to prevent further shootings, a grenade exploded in the hands of the latter. Mr Bapinayev died at the scene of the incident. According to the forensic examination of 29 March 2007, his death resulted from multiple gunshot and shrapnel wounds of his chest, stomach, upper and lower limbs injuring ribs, lungs, heart, liver and other organs.
2. The proceedings concerning the refusal to return the body of Mr Bapinayev for burial
On 2 May 2007 investigator E. terminated criminal case no. 25/65-05 against Mr Bapinayev as a result of his death. On the same date the investigator decided to bury the body of Mr Bapinayev relying on Article14.1 of the Law “On internment and burial” and paragraph 3 of the Government’s Decree of 20 March 2003 no. 164.
On 2 May 2007 the investigator refused to return the body of Mr Bapinayev to the applicant for burial on the ground that on different dates he committed attempts on the life of police and military officers, participated in unlawful armed formations, committed crimes in connection with traffic and storage of weapons. On 10 May 2007 the prosecutor refused the applicant’s claim to return the body of her son on the same grounds.
On 16 and 30 May 2007 the applicant complained to the Nalchik City Court about the termination of the proceedings claiming Mr Bapinayev’s rehabilitation and arguing that Article 14.1 of the Law “On internment and burial” was not applicable in the case as her son had not been proven guilty in the incriminated facts in the court proceedings. She also complained about the refusals to return the body. On 26 June 2007 the Nalchik City Court found the investigator’s decision of 2 May 2007 to terminate the proceedings unlawful and her complaint against the refusals to return the body premature. On 25 September 2007 the Supreme Court of Kabardino‑Balkaria quashed the decision of 26 June 2007 and sent the case for a fresh examination.
On 25 October 2007 the Nalchik City Court again found the decision of 2 May 2007 to terminate the proceedings unlawful. As regards the refusal to return the body, the court dismissed the applicant’s complaint. On 18 December 2007 the Supreme Court of Kabardino-Balkaria upheld the decision in connection with the dismissal of the complaint about the refusal to return the body. In connection with the complaint about the termination of the proceedings the court quashed the decision and sent it again for a fresh examination.
On 25 January 2008 the Nalchik City Court found the investigator’s decision to terminate the proceedings lawful. On 7 March 2008 the Supreme Court of Kabardino-Balkaria upheld the decision. The courts noted that the applicant and her representative had access to the documents of the criminal case against Mr Bapinayev, that the materials of the case were examined during the proceedings and that Mr Bapinayev had been proven guilty. The Supreme Court dismissed the complaint about the refusal to return the body noting that the decision of 18 December 2007 upholding the decision not to return the body was not appealed and therefore came into force.
B. Relevant domestic law
1. Statutory definitions of terrorism and terrorist activity
The Federal Law “On counter-terrorism” no. 35-FZ was enacted on 6 March 2006. Section 3 of the Law defines terrorism as an ideology of violence and exertion of pressure on the decision-making process by the public authorities, local authorities or international organisations, involving intimidation of the population and (or) other forms of unlawful violent acts.
A terrorist activity within the meaning of the said law encompasses:
1) organisation, planning, preparation, financing and commission of a terrorist act;
2) incitement to a terrorist act;
3) organisation of an unlawful armed formation, criminal association (criminal organisation) or an organised group for the commission of a terrorist act, or participation therein;
4) recruitment, arming, training and use of terrorists;
5) informational or other collaboration in planning, preparation or commission of a terrorist attack;
6) propaganda of the ideology of terrorism, dissemination of material and information, calling for the commission of a terrorist activity or reason or justification of the necessity of the implementation of such activity.
Section 3 defines a terrorist act as commission of explosion, arson or other acts, intimidating population or endangering a human life, causing significant loss of property or leading to other severe consequences, aimed at destabilisation of the operation of public authorities or international organisations or exertion of pressure on the decision-making process, as well as the uttering of a threat to commit the aforesaid acts for the same purposes.
2. Legislation on internment of (presumed) terrorists
Section 14.1 of the Federal Law “On interment and burial” (Federal Law no. 170- FZ) states that:
“... interment of persons against whom a criminal investigation on suspicion of terrorist activities has been closed because of their death during the suppression of the said terrorist act, shall take place under a procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial, and the place of their burial shall not be disclosed.”
The Russian Government adopted on 20 March 2003 Decree no. 164 setting up the procedure for internment of persons deceased during the suppression of terrorist acts carried out by them. Paragraph 5 states that:
“To execute the burial an official carrying out a preliminary investigation sends necessary documents, including a copy of the decision to close the criminal case, to the relevant Agency and a death certificate to the relevant residence registry office ...”
COMPLAINTS
Under Article 3 of the Convention the applicant complains that she has been subject to inhuman and degrading treatment by the authorities in connection with the refusal to return the body of Mr Bapinayev and the non‑disclosure of any details of the burial in case it had taken place.
She further complains under Article 8 of the Convention that the authorities unjustifiably interfered with her right to respect for her family life by refusing to return the body of her son for burial.
Finally, the applicant complains under Article 13 of the Convention that there is no effective remedy in respect of the above complaints.
QUESTIONS
1. Do the Russian authorities retain possession of the body of the applicant’s son, Mr Radik Feliksovich Bapinayev?
2. Did the refusal constitute an interference with the applicant’s rights protected under Articles 8 of the Convention? If so, did it pursue a legitimate aim and was it lawful and proportionate?
3. Does the refusal to return the body of the applicant’s relative constitute degrading and/or inhuman treatment within the meaning of Article 3 of the Convention?
4. Did the applicant have an effective remedy for his grievances under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?
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