I incorrectly predicted that there's no violation of human rights in PETROVIĆ v. SERBIA.

Judgment

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 death to two or more persons by negligence] ...”
24. 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 that given in his submissions to the Court. In addition, he stated that his brother, Mr Shamkhan Banzhayev, as head of the 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 and had gone missing in November 2002. 25. On 23 September 2007 the investigators suspended the investigation in the criminal case for failure to identify the perpetrators. It is unclear whether the applicant was informed of this suspension. 26. On 30 October 2007 the deputy head of the Shali district investigative committee (“the investigators’ supervisor”) overruled the suspension as premature and unsubstantiated and ordered a number of steps to be taken. 27. 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. 28. From the documents submitted it appears that the investigation is still ongoing. (c) The applicant’s complaint against the investigators
29. 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, inter alia, that the court instruct the investigators to resume the investigation. In particular, he argued that the investigators had not taken any effective steps to solve the crime and claimed 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 identify the military unit which had had such ammunition. 30. On 19 December 2008 the Shali District Court allowed the complaint in part, 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 access to the criminal case file to the extent permitted by the relevant domestic regulations. (a) Abduction of the applicant’s brother
31. According to the applicant, at about 3 p.m. on 15 November 2002 his brother was abducted by armed servicemen close to the Vedeno military commander’s office on 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 into a UAZ-type minibus (tabletka) and drove off. 32. The applicant did not witness the abduction, but the documents submitted indicate that his version of events corresponds with the material in the criminal case file. 33. According to the applicant, his brother’s abduction was perpetrated by military servicemen who wanted to stop him requesting the prosecution of the servicemen responsible for the shelling of Gezenchu on 25 August 2001. (b) Official investigation into the events
34. On 26 November 2002 the applicant complained of his brother’s abduction to the Vedeno district prosecutor’s office and requested that the incident be investigated:
“... 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 ...”
35. No reply was given to this complaint. 36. On 23 June 2003 the applicant again complained of his brother’s abduction, this time to the Vedeno district police department, and requested that an investigation be initiated. His complaint was officially registered as number 62 and on 2 July 2003 the police opened a search file. It appears that the applicant was informed of the opening of the search file. 37. On 22 June 2005 the acting Vedeno district prosecutor decided to initiate a criminal investigation (case no. 53028) into the abduction of Mr Shamkhan Banzhayev, stating that:
“ ... during an inspection of [the Vedeno district] police station and its registration logs, it was discovered that a case [a search file] had been opened in response to Mr R. Banzhayev’s complaint. However, neither a decision [nor a refusal] to open the criminal case ... had been given. Therefore, ... it has been decided that a criminal case will be opened now ...”
38. It appears that the applicant was provided with a copy of that decision on 19 April 2007. 39. On 10 August 2005 the applicant was granted victim status and questioned on 11 August 2005. He gave the same version of events as that later submitted to the Court and stated that Mr B.L., his brother’s bodyguard, and Mr V.K., a friend, had been with his brother at the time of his abduction. 40. On the same day Mr B.L. was questioned. He stated that he had seen a group of armed men accompany Mr Shamkhan Banzhayev to an UAZ‐type minibus, which had had no registration number, and then drive off. No force had been used against him. The driver of the minibus had told him that they were going to the military commander’s office in Dyshne‐Vedeno and would be back in an hour. 41. On 13 August 2005 Mr V.K. was questioned. He stated that he had seen ten to fifteen armed men in camouflage and masks surround Mr Shamkhan Banzhayev, force him into an UAZ-type minibus and then drive off. 42. On 22 August 2005 the investigation was suspended. That decision was overruled by the investigators’ superior on 9 January 2006. On 9 February 2006 the investigation was suspended again. The applicant was not informed of that decision. 43. On 23 September 2006 the investigators’ superior overruled the decision to suspend the investigation. The applicant was informed of that decision. 44. In September and October 2006 the supervising prosecutors instructed the investigators to take a number of investigative steps, including questioning the applicant’s relatives and the men who had been with his brother at the time of his abduction, as well as the military personnel of the Vedeno military commander’s office. 45. On 26 September 2006 the head of the Vedeno district administration, Mr D.Kh., was questioned. No new information was obtained. 46. On an unspecified date in 2006 the applicant was questioned again and confirmed his previous statement. 47. On 20 October 2006 the investigators examined the crime scene, the premises of the Vedeno military commander’s office on Tsentralnaya Street. No evidence was collected. 48. On the same day Mr B.L. was questioned again. He stated that Mr Shamkhan Banzhayev had always carried his service pistol with him, including on the day of the incident. 49. On 21 October 2006 Mr T.K., at whose home Mr Shamkhan Banzhayev had stayed several times, was questioned. He stated that at the material time a group of armed men under the command of the Yamadayev brothers had been stationed in Vedeno. 50. On 21 and 22 October 2006 Mr M.Kh. and Mr U.M., former bodyguards of Mr Shamkhan Banzhayev, were questioned, but provided no new information. 51. On 23 November 2006 the investigators suspended the proceedings. The applicant was informed of that decision. 52. On 21 September 2017 the investigators’ superior overruled the decision to suspend the proceedings and informed the applicant. 53. On 25 October 2017 the investigation was suspended again, before being resumed again on 28 September 2018. 54. From the documents submitted it appears that the investigation is still ongoing. 55. For a summary of the relevant domestic law, see Abuyeva and Others v. Russia (no. 27065/05, §§ 165-68, 2 December 2010), and Aslakhanova and Others v. Russia (nos. 2944/06 and 4 others, §§ 43-84, 18 December 2012). THE LAW
56. The applicant complained that his wife had been killed as a result of the shelling of their village by the Russian military forces and that his brother had been abducted by State agents. He further complained that the investigations into the incidents had been ineffective. Article 2 reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
(a) The Government
57. The Government contended that the complaints should be declared inadmissible for non-exhaustion of domestic remedies. In particular, they submitted that the applicant had never challenged the authorities’ inaction in the investigation into his brother’s alleged abduction before the domestic courts under Article 125 of the Code of Criminal Procedure. 58. The Government further contented that the applicant had failed to appeal against the decision of the Shali Town Court of 19 December 2008 concerning the investigation into his wife’s killing (see paragraph 30 above). They submitted that the investigation had been resumed and was ongoing. (b) The applicant
59. The applicant submitted that he complied with the admissibility criteria. Referring to the Court’s case law (Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005) he stressed, in particular, that the only supposedly effective remedy – a criminal investigation – had proved to be ineffective and that in respect of both incidents he had taken all the necessary steps to maintain contact with the authorities. 60. The applicant argued that prior to his brother’s abduction, the latter had actively sought to institute proceedings into the killing of the applicant’s wife and that his own passive stance of a few years in the proceedings concerning her killing had been due to fear for his own safety after his brother’s abduction. (a) Compliance with the six-month criteria
61. Although the respondent Government did not raise any objection under this head, this issue calls for the Court’s consideration proprio motu (see Palić v. Bosnia and Herzegovina, no. 4704/04, § 48, 15 February 2011). 62. For a summary of the principles concerning compliance with the six‐month criteria in cases concerning alleged killings and abductions by State agents, see Dudayeva v. Russia (no. 67437/09, §§ 65-69, 8 December 2015), and Khadzhimuradov and Others v. Russia (nos. 21194/09 and 16 others, §§ 61-67, 10 October 2017). 63. The Court notes that the applicant lodged his complaints with the Court about seven and a half years after the killing of his wife and six and a half years after the abduction of his brother (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 166, ECHR 2009). The investigation into the killing of his wife was initiated almost six years after the incident and the investigation into the abduction of his brother two and a half years after the events. Both investigations are still formally pending, without any of the suspects being identified or any other tangible results being obtained. In line with the above-cited case-law, especially cases concerning the use of lethal force, such a long period in itself is bound to raise questions of compliance with the six-month time-limit (see Khadzhimuradov, cited above, § 62). 64. Therefore, the Court will need to examine whether, in the meantime, the applicant maintained meaningful, even if sporadic, contact with the investigation, which could indicate that he had reasonable faith in the effectiveness of the domestic remedies and showed due diligence in pursuing the matter, and thus could convincingly explain the delay in the lodging of his application with the Court. 65. The documents submitted show that the applicant’s wife was killed on 25 August 2001, that the incident was reported shortly afterwards to the authorities, and that the applicant’s brother was informed on 24 November 2001 that the authorities had launched an inquiry into the matter (see paragraphs 14, 17 and 19 above). According to the applicant, until his abduction on 15 November 2002, his brother Mr Shamkhan Banzhayev, as head of the village administration, maintained contact with the authorities with a view to pressuring them to initiate a criminal investigation into the shelling. Then, from the beginning of 2003, following his brother’s abduction at the military checkpoint, to the beginning of 2007, the applicant did not officially contact the authorities in connection with his wife’s killing. In his submissions to the Court he explained that during those four years he had feared for his own safety because of his brother’s abduction by military servicemen and his attempts to have the perpetrators of the shelling prosecuted. Then, in the beginning of 2007, a complaint by him had prompted the opening of the criminal case (see paragraph 22 above). 66. In situations such as the present one, it is difficult to pinpoint a specific date on which the applicant should have become aware of the ineffectiveness of an investigation. It is also conscious of the extreme seriousness of the crime in question and the applicant’s understandable expectations of an adequate response by the authorities. In vew of his explanations, the Court sees his vulnerability and fear for his own life as a plausible and acceptable explanation for his inactivity for four years (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 272‐75, ECHR 2014 (extracts)). 67. The Court further observes that the applicant lodged his application concerning his brother’s abduction about six and half years after the incident. In line with the Court’s case-law on the matter, such a delay does not call for an examination of compliance with the six-month rule (see Varnava and Others, cited above, § 166) unless there is evidence of absence of communication with the domestic investigating authorities for a significant length of time showing a lack of due diligence on the part of the applicant (see, for example, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, 31 May 2016, and Gisayev and Others v. Russia (dec.), no. 27240/09, 29 August 2017). The Court observes that the applicant in the present case lodged a complaint with the investigators shortly after his brother’s abduction (see paragraph 34 above). Then, in June 2003 he reiterated his complaint and was informed that an investigation had been initiated (see paragraph 36 above), which he must have perceived as a promising development. 68. Having examined the documents submitted by the parties, the Court finds that the conduct of the applicant vis-à-vis the investigation has been determined not by his perception of the remedy as ineffective, but rather by his expectation that the authorities would, of their own motion, provide him with an adequate answer to his serious complaints. He promptly furnished the investigating authorities with sufficiently detailed witness evidence and cooperated with them. He thus could reasonably expect there to be further substantive developments in the investigations. It cannot be said that he failed to show the requisite diligence by waiting for the pending investigation to yield results (see, mutatis mutandis, Abuyeva and Others, cited above, § 179). 69. The Court thus considers that an investigation, albeit a sporadic one, was being conducted during the periods in question in each of the cases, and that the applicant did all that could be expected of him to assist the authorities (see Varnava and Others, cited above, § 166, and Er and Others v. Turkey, no. 23016/04, § 60, 31 July 2012). In the light of the foregoing, the Court finds that the applicant complied with the six-month time-limit. (b) The Government’s non-exhaustion plea
70. As regards the Government’s objection concerning the applicant’s failure to exhaust domestic remedies by awaiting the outcome of the pending criminal investigations, the Court notes that it concerns the effectiveness of two different sets of pending criminal proceedings. 71. Turning to the Government’s objection concerning the investigation into the killing of the applicant’s wife, the Court notes that it is closely linked to the substance of the complaint and should be joined to the merits of the case. 72. As to the Government’s objection concerning the investigation into the abduction of the applicant’s brother, the Court reiterates that the ineffective investigation of disappearances that occurred in Chechnya and Ingushetia between 2000 and 2006 constitutes a systemic problem and that criminal investigations are not an effective remedy in this regard (see Aslakhanova and Others, cited above, § 217). In such circumstances, and noting the absence over the years of tangible progress in the criminal investigation into the abduction, the Court concludes that this objection must be dismissed, since the remedy suggested by the Government was not effective in the circumstances. 73. The Government neither commented on nor disputed the complaints. 74. The applicant argued that his wife had been killed owing to the shelling of their village by the Russian military forces. He further argued that his brother had been abducted by State agents and that the ensuing investigations into both incidents had been ineffective. Alleged violation of the substantive aspect of the right to life
(a) Killing of Ms Malika Vanayeva
75. The Court asked the Government to provide an entire copy of investigation file no. 23031 opened into the killing of the applicant’s wife, but they failed to furnish the documents requested. However, regard being had to the material submitted by the applicant from the domestic investigation file, the Court considers that the missing documentation does not prevent it from examining the issues raised. 76. The Court observes that in its extensive case-law it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012). 77. The Court notes that it has already adjudicated a number of cases concerning allegations of killings in Chechnya. Applying the above‐mentioned principles, it has concluded that it was sufficient for the applicant to make out a prima facie case that the killing was perpetrated by State agents; it was then for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, Kerimova and Others v. Russia, nos. 17170/04 and 5 others, § 241, 3 May 2011; Abuyeva and Others, cited above, §§ 196-203; Amuyeva and Others v. Russia, no. 17321/06, §§ 83-84, 25 November 2010; and Dudayeva, cited above, §§ 81-82). If the Government failed to rebut this presumption, this would entail a violation of Article 2 of the Convention in its substantive part. Conversely, if the applicants failed to make out a prima facie case, the burden of proof could not be reversed (see, for example, Abdurashidova v. Russia, no. 32968/05, §§ 71-72, 8 April 2010, and Udayeva and Yusupova v. Russia, no. 36542/05, § 79, 21 December 2010). 78. Based on the information and documents submitted by the applicant concerning the circumstances of the killing of Ms Malika Vanayeva, the Court concludes that that material demonstrates the validity of his allegations. The applicant’s wife was killed in an area which had been subjected to shelling by the Russian artillery on several occasions (see paragraphs 8 and 12 above). As a result of the shelling on 25 August 2001, the applicant’s wife and his relative R.G. were killed on the spot by a bomb which had exploded next to the house (see paragraph 12 above). 79. The Government, for their part, did not dispute any of the factual elements underlying the application or provide any other explanation for the events. In particular, they did not deny that on 25 August 2001 the Russian troops had shelled Gezenchu in the Vedeno district. The Court notes the lack of any explanation on their part as to whether the use of lethal force was justified under Article 2 of the Convention. 80. This being so, in the absence of any justification or explanation for the use of lethal force put forward by the Government, the Court finds that the death of the applicant’s wife can be attributed to the State and that there has thus been a violation of the substantive aspect of Article 2 of the Convention in respect of Ms Malika Vanayeva. (b) Abduction of Mr Shamkhan Banzhayev
81. The Court notes at the outset that the abduction took place in the Northern Caucasus, during the large-scale counterterrorist operation in Chechnya (see, among many other examples, Alikhanovy v. Russia, no. 17054/06, 28 August 2018; Tsakoyevy v. Russia, no. 16397/07, 2 October 2018; Turluyeva v. Russia, no. 63638/09, 20 June 2013; Khava Aziyeva and Others v. Russia, no. 30237/10, 23 April 2015; Makayeva v. Russia, no. 37287/09, 18 September 2014; and Askhabova v. Russia, no. 54765/09, 18 April 2013). 82. The particularities of the case as highlighted by the applicant suggest that State agents were the perpetrators of the abductions. Thus, Mr Shamkhan Banzhayev was forced into a vehicle by a group of armed men in camouflage uniforms as he was leaving the Vedeno military commander’s office. At least two eyewitnesses, who were with the applicant’s brother at the time, confirmed that version of events (see paragraphs 40 and 41 above). 83. The documents submitted show that the investigators did not take meaningful steps to check whether the abduction could have been perpetrated by anyone else and/or for other reasons, such as a blood feud, ransom, drugs or hostility (contrast Zubayrayev v. Russia, no. 67797/01, § 81, 10 January 2008). 84. Lastly, the reluctance of the authorities to actively investigate the matter (see, for example, paragraphs 34-37 above), along with the applicant’s consistent allegations that State agents were involved in the incident, is enough for the Court to conclude that the applicant has made out a prima facie case that his brother was abducted by State agents. 85. Given that the Government has not put forward any explanation for the events in question, or an alternative version of events, the Court finds that the applicant’s brother was arrested by State agents. 86. There has been no reliable news of the applicant’s missing brother since his disappearance. In a situation where a person is detained by State agents without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life-threatening. The absence of Mr Shamkhan Banzhayev or of any news of him for a number of years supports this assumption. 87. Accordingly, the Court finds that Mr Shamkhan Banzhayev must be presumed dead following his unacknowledged detention by State agents. (c) Alleged violation of the procedural aspect of the right to life
(i) General principles
88. The obligation to protect the right to life under Article 2 of the Convention requires that there should be some form of effective official investigation. A summary of the principles relating to the requirements of such an investigation can be found in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015), and Armani Da Silva v. the United Kingdom ([GC], no. 5878/08, §§ 229-39, ECHR 2016). (ii) Investigation into the killing of Ms Malika Vanayeva
89. Turning to the case at hand, the Court observes that the authorities were informed of the shelling shortly after the events, that is to say, in September 2001 at the latest (see paragraphs 17 and 18 above), and that from the very beginning the applicant’s brother maintained that the military base in Engenoy had been responsible. Moreover, with his complaints the applicant’s brother enclosed a detailed report on the casualties of the shelling (see paragraphs 18 above). In response, in November 2001 the authorities informed him that an inquiry had been opened into his allegations. However, it was not until July 2007 and after yet another of the applicant’s complaints that the authorities opened the criminal case into the incident. 90. The documents submitted show that the investigators did not take any meaningful steps to identify the perpetrators, despite the direct orders of the investigators’ superior (see paragraph 27 above). It appears that no steps were taken to examine the crime scene, question the victims and/or witnesses of the shelling or identify the military officers who had been involved in the planning and execution of the military strike on Gezenchu. 91. Taking into account the above, and noting the limb of the Government’s preliminary objection that was joined to the merits of the complaint ‒ inasmuch as it concerns the fact that the domestic investigation is still pending ‒ the Court observes that the investigation has been ongoing for several years and has produced no tangible results. Accordingly, the Court finds that the remedy suggested by the Government was ineffective in the circumstances and dismisses their preliminary objection. 92. In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the death of Ms Malika Vanayeva, in breach of Article 2 in its procedural aspect. (iii) Investigation into the abduction of Mr Shamkhan Banzhayev
93. The Court observes that the applicant complained of his brother’s abduction eleven days after the incident, on 26 November 2002, and then in June 2003 reiterated his request for an investigation to be initiated (see paragraphs 34-36 above). The Court has already found that a criminal investigation does not constitute an effective remedy in respect of disappearances occurring in Chechnya between 1999 and 2006 and that such a situation constitutes a systemic problem under the Convention (see Aslakhanova and Others, cited above, § 219, and Turluyeva, cited above, §§ 65-74). In the case at hand, as in many previous similar cases reviewed by the Court, the investigation has been ongoing for years without there being any significant developments as to the identities of the perpetrators or the fate of the applicant’s brother. While the obligation to investigate effectively is one of means and not of results, the Court notes that the investigation has been plagued by a combination of defects similar to those described in the Aslakhanova and Others judgment (cited above, §§ 123‐25). The proceedings included several decisions to suspend the investigation; those suspensions were followed by periods of inactivity, which further diminished the prospects of solving the crime. No prompt and thorough measures have been taken to identify and question the servicemen who could have witnessed the abduction from the checkpoint or military commander’s office or could have been involved in it. 94. In the light of the foregoing, the Court finds that the authorities failed to carry out effective criminal investigations into the circumstances of the disappearance and death of Mr Shamkhan Banzhayev. Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention. 95. The applicants complained that there had been no effective remedies in respect of the alleged violations of Article 2 of the Convention. Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
96. The Government argued that the applicant could have appealed against the shortcomings of the investigation in both criminal cases to the domestic courts. 97. The Court notes that the complaint is linked to those examined above under Article 2 of the Convention and must therefore likewise be declared admissible. 98. The Court reiterates its findings concerning the ineffectiveness of the criminal investigations into the circumstances of Ms Malika Vanayeva’s killing and Mr Shamkhan Banzhayev’s abduction and death. In the absence of any results from a criminal investigation, any other possible remedy becomes inaccessible in practice. 99. The Court thus finds that the applicant did not have an effective domestic remedy at his disposal for his grievances under Article 2 in breach of Article 13 of the Convention (see, for example, Aslakhanova and Others, cited above, § 157). 100. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
101. The applicant did not submit a claim for pecuniary damage. As for non-pecuniary damage, he claimed 500,000 euros (EUR). 102. The Government submitted that the amount claimed should be in line with the Court’s case-law on the matter. 103. Taking account of the parties’ submissions and the violations found, the Court awards the applicant EUR 160,000 in respect of non‐pecuniary damage, plus any tax that may be chargeable to him. 104. The applicant also claimed EUR 2,392 for the costs and expenses incurred before the Court. He asked that the award be transferred into the bank account of his representative. 105. The Government did not comment. 106. As to costs and expenses, the Court has to establish whether they were actually incurred, necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324). 107. Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicant EUR 2,000, plus any tax that may be chargeable to him on that amount. The award in respect of costs and expenses is to be paid into his representative’s bank account, as indicated by him. 108. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 160,000 (one hundred and sixty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 14 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsAlena PoláčkováRegistrarPresident