Case of European Court of Human Rights, January 14, 2020 (case BANZHAYEV v. RUSSIA)

Defense:RUSSIA
Resolution Date:January 14, 2020
SUMMARY

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation)

 
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THIRD SECTION

CASE OF BANZHAYEV v. RUSSIA

(Application no. 21129/09)

JUDGMENT

STRASBOURG

14 January 2020

This judgment is final but it may be subject to editorial revision.

In the case of Banzhayev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Alena Poláčková, President,Dmitry Dedov,Gilberto Felici, judges,and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 21129/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Shaaman Banzhayev (“the applicant”), on 26 March 2009.

  2. The applicant was represented by Mr D.S. Itslayev, a lawyer practising in Grozny. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

  3. On 13 July 2018 the Government were given notice of the complaints under Articles 2 and 13 of the Convention concerning the killing of the applicant’s wife, his brother’s abduction, the authorities’ failure to effectively investigate the incidents and the lack of effective remedies for the alleged violations. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The Government did not object to the examination of the application by a Committee.

    THE FACTS

  4. The applicant was born in 1966 and lives in Komsomolskoye.

  5. The applicant is the widower of Ms Malika Vanayeva, who was born in 1975 and the brother of Mr Shamkhan Banzhayev, who was born in 1969.

  6. The circumstances of the case, as submitted by the applicant and uncontested by the Government, may be summarised as follows.

    Killing of the applicant’s wife and abduction of his brother

    (a) Bombing of Gezenchu on 25 August 2001

  7. 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 Malika 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.

  8. In August 2001 the village was subjected to shelling by the Russian artillery on several occasions.

  9. 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.

  10. 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.

  11. 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.

  12. 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 caught 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.

  13. The applicant and his wounded relatives were immediately taken to Sayasan Hospital in the Nozhay-Yurt district, in the vicinity of Engenoy, and provided with medical help.

  14. 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 chest. Her death was officially registered on 22 October 2001.

  15. 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.

  16. 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 the events

  17. 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 around twelve to fifteen 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 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 their request in mind. On 25 August 2001 the village had nonetheless been shelled. Mr Shamkhan Banzhayev requested that the military servicemen responsible be identified and prosecuted.

  18. On 19 September 2001 Mr Shamkhan Banzhayev again complained about the shelling, this time to the Vedeno prosecutor and the head of the Vedeno district administration, reiterating his previous complaints (see paragraph 17 above). 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 Engenoy village to tell them that there was no reason to shell Gezenchu. The military servicemen had responded by saying that they received their orders from the Khankala headquarters but that they would not bomb Gezenchu. However, the following day they had subjected the village to bombing, disregarding the fact that it was populated by civilians. The applicant’s brother enclosed a number of medical certificates with the complaint confirming the injuries sustained by the Gezenchu residents.

  19. On 24 November 2001 the interim Chechnya military commander informed Mr Shamkhan Banzhayev that:

    “ ... concerning the complaint about the shelling on 25 August 2001 of Gezenchu resulting in local residents being injured, the Vedeno prosecutor’s office is carrying out an inquiry to decide whether to open a criminal case against the perpetrators ...”

  20. From the documents submitted it appears that between 2001 and 2002 the applicant’s brother Mr Shamkhan Banzhayev, in his capacity as head of the Gezenchu administration, called on various authorities with a view to having the perpetrators of the shelling identified and prosecuted.

  21. According to the applicant, on 15 November 2002 Mr Shamkhan Banzhayev was abducted, allegedly by military servicemen (see below).

  22. After his brother’s disappearance, the applicant and his family were concerned for their personal safety. It is unclear whether they continued to push for an investigation into the shelling. However, at some point in early 2007 the applicant complained that there had been no investigation into the shelling, prompting the authorities to initiate one.

  23. 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 the village of Gezenchu in the Vedeno district to artillery shelling, 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 [paragraph] 3 of Article 109 [causing...

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