CASE OF BANTAYEVA AND OTHERS v. RUSSIA
Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicants are: 1) Ms Dagman Bantayeva, born in 1932, 2) Ms Kometa Mauladiyevna Manayeva, born in 1966, 3) Ms Zina Rashedovna Bantayeva, born in 1970, 4) Ms Khava Abubakarovna Bantayeva, born in 1988, 5) Ms Petimat Salmanovna Bantayeva, born in 1991, 6) Mr Islam Abubakarovich Manayev, born in 1998, 7) Ms Amnat Abubakarovna Bantayeva, born in 1996, 8) Mr Magomed Salmanovich Bantayev, born in 1989, 9) Ms Rayana Salmanovna Bantayeva, born in 2003, 10) Mr Dzhokhar Salmanovich Bantayev, born in 1998, and 11) Ms Amina Abubakarovna Manayeva, born in 1993. 7. The applicants are Russian nationals who live in the village of Komsomolskoye, in the Gudermes district of Chechnya. 8. The applicants are relatives. The first applicant is the mother of Mr Abubakar Aliyevich Bantayev (also known as Bakra Manayev), born in 1957, and Mr Salman Aliyevich Bantayev, born in 1962. Abubakar Bantayev is married to the second applicant; they are the parents of the fourth, sixth, seventh and the eleventh applicants. Salman Bantayev is married to the third applicant; they are the parents of the fifth, eighth, ninth and tenth applicants. The first applicant has two other children, Ms Madina Bantayeva and Mr Shamil Bantayev, who are not applicants in this case. 9. Prior to 2000 Abubakar and Salman Bantayev participated in illegal armed groups. In 2000 they quitted paramilitary activities and voluntarily handed their arms over to the Chechnya Department of the Federal Security Service (the Chechnya FSB). On 21 January 2000 Abubakar and Salman Bantayev were provided with individual statements to this effect by the Department of the Federal Security Service of Gudermes District (the Gudermes FSB) together with the military commander of the security zone of Gudermes District (комендант зоны безопасности). 10. At the material time Russian federal forces checkpoints were located on roads leading to and from the village of Komsomolskoye. 11. According to the first applicant, about five months prior to 2 January 2003, that is, in the summer of 2002, she, her son Salman Bantayev and their neighbour were in a KAMAZ lorry driving from their village to the village of Engel-Yurt in the Gudermes district of Chechnya. On the road between Kadi-Yurt and Engel-Yurt their lorry was stopped by Russian military servicemen in an APC (armoured personnel carrier). They checked the identity papers of Salman Bantayev and his neighbour. The servicemen had a list against which they checked Salman Bantayev’s name. After that they told the first applicant that they would take her son away with them. They put Salman Bantayev into the APC and took him to a military unit stationed near Gudermes. The applicant’s other son, Abubakar Bantayev, went to the military unit on the same day to find out the reasons for his brother’s detention. Later in the evening of the same day Salman Bantayev was released. 12. On the night of 1-2 January 2003 Abubakar Bantayev and his children were sleeping in one part of the house at 1 Zapadnaya Street, in the village of Komsomolskoye. Abubakar Bantayev’s brother, Shamil Bantayev, was sleeping in another part of the house. Abubakar Bantayev’s wife was not at home that night as she was visiting her relatives in another village. 13. Between 3 a.m. and 4 a.m. a group of masked men wearing camouflage uniforms and armed with machine guns broke into the house. The men did not introduce themselves; they spoke Russian without an accent. The fourth applicant thought they were Russian servicemen. 14. The servicemen pointed their guns at the family members and lined them up along the wall. When the fourth applicant started to cry, one of them ordered her in Russian to keep silent. 15. The servicemen searched the house and took the family’s TV set, Abubakar Bantayev’s identity papers and the documents for his car. After that they took Abubakar Bantayev outside, put him into a UAZ vehicle parked next to the house and drove away to an unknown destination. 16. Immediately after Abubakar Bantayev’s apprehension Shamil Bantayev rushed to see their mother in the house of his brother Salman Bantayev. The latter’s house was located just a few minutes’ walk from Abubakar Bantayev’s house. On his way there he met his sister Madina Bantayeva who told him that their brother Salman had also been abducted by armed men. 17. On the night of 1-2 January 2003 the first applicant, Madina Bantayeva, Salman Bantayev and his children were sleeping in Salman Bantayev’s house at 8 Stalskogo Street (also spelled Stalskaya Street), in the village of Komsomolskoye. The house was located about 50 metres from the local military commander’s office. 18. Between 3 a.m. and 4 a.m. on 2 January 2003 a group of around ten men broke into the house. They wore masks and camouflage uniforms with no insignia and were armed with machine guns. They spoke both Russian and Chechen. The applicants thought they were Russian military servicemen. A group of ten servicemen waited outside, next to the grey and khaki-coloured UAZ vehicles parked in the yard. 19. The servicemen tied up Madina Bantayeva and the eighth applicant and put them in one of the rooms. Then they searched the house, ripping upholstery, turning furniture upside down and demanding gold and money from Salman Bantayev. From the window of their room Madina Bantayeva saw the intruders taking some items of their family property and putting them in one of the UAZ vehicles. When Madina Bantayeva saw from the window one of the intruders taking a TV set into the UAZ vehicle, she started screaming that their house was being robbed. The serviceman with the TV set heard this and put the TV set back in the house. 20. The servicemen took a number of items of the family’s property, including a video camera, as well as Salman Bantayev’s identity papers, marriage certificate, documents for his car and the family photograph albums. After that they took Salman Bantayev into the yard. Without letting him put on clothing or shoes, the servicemen put Salman Bantayev in one of the UAZ vehicles and drove away towards Gudermes. 21. The applicants’ neighbour Mrs M.M. testified that late at night on 2 January 2003 she had seen military UAZ cars and a grey UAZ car (“таблетка”) pulling over by Salman Bantayev’s house. About twenty armed men in camouflage uniforms and masks went into the yard. Mrs M.M. thought these men belonged to the Russian military. Having spent about half an hour in the applicants’ house, the servicemen left. Then Mrs M.M. saw the first applicant and her daughter stepping outside the house; the two women told her that the servicemen had taken Abubakar and Salman Bantayev away. Mrs M.M. went into the applicants’ house and saw that everything there had been turned upside down. 22. Shortly after Salman Bantayev’s abduction and the meeting with his sister Madina on the way, Shamil Bantayev came over to his mother’s house and told her that Russian servicemen had also taken Abubakar Bantayev away. 23. The first applicant and Shamil Bantayev immediately went to the Gudermes District military commander’s office (the district military commander’s office) and requested information about their relatives from a duty officer who refused to identify himself. The officer replied that he knew nothing about the Bantayev brothers and that he would not bother his superiors in the middle of the night. 24. In the morning of 2 January 2003 the first applicant reported her sons’ disappearance to the Gudermes District department of the interior (the Gudermes ROVD). Later on the same day the police visited the houses of the Bantayev brothers and collected witness statements. 25. The applicants have had no news of Abubakar and Salman Bantayev since 2 January 2003. 26. In support of their statements, the applicants submitted the following documents: witness statement of the first applicant, provided on 27 February 2005; witness statement of the fourth applicant, provided on 2 March 2005; witness statement of the eighth applicant, provided on 2 March 2005; witness statement of the first applicant’s daughter Mrs Madina Bantayeva, provided on 7 November 2003; witness statement of the first applicant’s neighbour Mrs M.M., provided on 23 March 2004; witness statement of the applicants’ relative Mrs A.R., provided on 27 March 2003; hand-drawn map of the first applicant’s house; copies of statements no. 002 and no. 606 issued by the Gudermes FSB and the military commander of the Gudermes district security zone in respect of Abubakar Bantayev and Salman Bantayev accordingly, confirming that they had surrendered their weapons and quitted their participation in illegal armed groups, both documents dated 21 January 2000. 27. The Government did not dispute the circumstances of the abduction of Abubakar and Salman Bantayev. According to their submission, “during the night of 2 January 2003, unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted Salman Aliyevich Bantayev from his house at 8 Stalskaya Street and Abubakar Aliyevich Bantayev from his house at 1 Zapadnaya Street in the village of Komsomolskoye in the Gudermes district of the Chechen Republic”. 28. The Government further submitted that the applicants had not been consistent in their description of the facts as, according to the first applicant, the abductors spoke Russian and Chechen, whereas the eighth applicant had stated that they spoke only Russian. According to the Government, communication in Chechen was not typical for representatives of Russian federal forces. 29. Since 2 January 2003 the first applicant has repeatedly applied in person and in writing to various public bodies. She has been supported in her efforts by the SRJI NGO. In her letters to the authorities the first applicant referred to her sons’ detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which her requests have been forwarded to various prosecutors’ offices. The applicants submitted some of the letters to the authorities and their replies to the Court. These documents are summarised below. 30. On 4 March 2003 the first applicant requested the head of the Chechen administration, the Chechnya prosecutor and the Chechnya military prosecutor to assist her in the search for her sons. In her letter she stated that her sons had been abducted by unidentified men in camouflage uniforms who had arrived in two UAZ vehicles. She also pointed out that her sons had quitted their participation in illegal armed groups in 2000 and that since then they had been law-abiding citizens. 31. On 22 September 2003 the first applicant wrote to the Prosecutor General, the Chechnya prosecutor’s office, the military prosecutor of the United Group Alignment (the military prosecutor of the UGA) and the Chief Federal Inspector of the Southern Federal Circuit in Chechnya requesting assistance in the search for her sons. In her letters she stated that her sons had been abducted by unidentified men in camouflage uniforms who had arrived in two UAZ vehicles. She also pointed out that her sons had quitted their participation in illegal armed groups in 2000 and since then they had been law-abiding citizens. The applicant requested to be informed whether the authorities had brought any charges against her sons and what had been the reasons for their arrest. 32. On 22 September 2003 the first applicant requested the district prosecutor’s office to institute an investigation into her sons’ disappearance and provide her with information about its progress. 33. On 5 November 2003 the SRJI wrote on behalf of the first applicant to the district prosecutor’s office. They stated that the applicant’s two sons had been taken away by representatives of federal forces in camouflage uniforms who had arrived in two UAZ cars. The SRJI requested to be informed whether an investigation into the Bantayev brothers’ disappearance had been instituted and, if so, which investigative measures had been taken to solve the crime. They also requested that the first applicant be granted victim status in the criminal proceedings. 34. On 4 December 2003 the district prosecutor’s office replied to the SRJI stating that the investigation into the Bantayev brothers’ kidnapping had been instituted on 6 January 2003 and that it had been suspended on an unspecified date for failure to identify the culprits. They further noted that victim status in the criminal proceedings had already been granted to Shamil Bantayev. 35. On 20 January 2004 the SRJI requested the district prosecutor’s office to be informed about progress in the investigation, to have the criminal proceedings resumed and to be provided with information about the measures taken to solve the crime. No response was given to this request. 36. The applicants were not informed about any further progress in the criminal investigation. 37. On 2 January 2003 operational search officer A. of the Gudermes ROVD carried out a crime scene examination in the houses of the abducted Bantayev brothers. It does not appear that any evidence was collected from the crime scene. 38. On 6 January 2003 the district prosecutor’s office instituted an investigation into the abduction of Abubakar Bantayev and Salman Bantayev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 32000. 39. On 24 January 2003 the first applicant’s son Mr Shamil Bantayev was granted victim status in the criminal case. On the same date he was questioned by the investigators and testified that Abubakar Bantayev’s children had told him that at about 4 a.m. on 2 January 2003 their father had been abducted by unknown masked men. The abductors had also taken away a number of items of their property and documents. The witness had decided to inform his other brother Salman about Abubakar’s abduction. On the way to his house he had met his sister Madina who had told him that Salman had also been abducted by unidentified armed men who had arrived at their house in UAZ cars. Salman Bantayev’s abductors had also taken away documents and a number of items of property from the applicants’ house, including a video camera. 40. On 27 February 2003 the investigators questioned the applicants’ relative Mr A.Sh. who testified that he did not have any information about the reasons for the abduction of Abubakar and Salman Bantayev; he also stated that he was aware that in the past the brothers had participated in illegal armed groups. 41. On 6 March 2003 the investigation in criminal case no. 32000 was suspended for failure to identify the perpetrators. 42. On 25 December 2003 the deputy Chechnya prosecutor overruled the decision of 6 March 2003 and the investigation was resumed. 43. On 24 January 2004 the first applicant’s daughter, Mrs Madina Bantayeva, was granted victim status in the criminal proceedings and testified that on 1 January 2003 she had arrived at her mother’s house. Her mother was living with her brother Salman and his family. At about 3 a.m. on 2 January 2003 a group of unidentified armed men in masks had arrived at their house in two UAZ cars, which they had parked in the yard. The men entered the house, turned everything upside down, slashed the furniture’s upholstery, bound her hands with adhesive tape and put her with the first applicant in one of the rooms. Madina Bantayeva had not witnessed the abduction, but the eighth applicant had told her that the abductors had demanded money and gold. Madina Bantayeva stated that she had seen from the window the abductors taking away their property. When she had started screaming that their house was being robbed by the intruders, one of them had returned the TV set to the house. 44. On 24 January 2004 the investigation in the criminal case was suspended for failure to identify the perpetrators. 45. On 21 March 2005 the Gudermes district acting prosecutor overruled the decision of 24 January 2004 and the investigation was resumed. The applicants were informed about this decision. 46. On 22 August 2007 the investigators questioned the eighth and fourth applicants as well as Salman Bantayev’s neighbour, Mrs M.M. The eighth applicant testified that on an unspecified date in January 2003 he had woken up and had seen a group of armed masked men in camouflage uniforms in the house. They had demanded money and gold; having spent about twenty minutes in the house, they had left with his father Salman Bantayev. They had also taken away some of their family’s valuables. The fourth applicant testified that on an unspecified date in January 2003 she had woken up and had seen a group of armed masked men in camouflage uniforms. They had demanded money and gold; having spent about twenty minutes in the house, they had left with her father Abubakar Bantayev. They had also taken away their family’s TV set. Mrs M.M. testified that about 3 a.m. on 2 January 2003 she had seen from her window two UAZ cars next to the Bantayevs’ house. A group of seven or eight men in masks and camouflage uniforms had got out of the cars, entered Salman Bantayev’s house and had left about fifteen minutes later. 47. On the same day, i.e. on 22 August 2007, the investigators refused to open criminal proceedings in connection with the unlawful entry into the home and the theft of documents from the houses of Abubakar and Salman Bantayev due to the expiration of the statutory time-limits, but the district prosecutor’s office instituted an investigation into the theft from the houses of Abubakar and Salman Bantayev on the night of their abduction under Article 162 of the Criminal Code (aggravated robbery). The criminal case file was assigned number 15086. The investigators also granted Shamil Bantayev the status of civil plaintiff in criminal case no. 32000. On 23 August 2007 Madina Bantayeva was granted the same status in the criminal proceedings. 48. On an unspecified date the investigators requested information from the Gudermes ROVD about the passage of military vehicles through the checkpoints in the village of Komsomolskoye on the night of the abduction of the Bantayev brothers. According to the response from the ROVD, no passage of military vehicles had been registered that night. 49. According to the Government, the investigators also requested information from various law enforcement agencies in Chechnya concerning the disappearance of the Bantayev brothers. The Temporary Operational Troops of the Ministry of the Interior in Chechnya (временная оперативная группировка МВД РФ в Чечне), the Chechnya FSB and the Northern-Caucasus Operational Headquarters of Ministry of the Interior (Северокавказское оперативное управление МВД РФ) and other agencies submitted that they had no information concerning the whereabouts of the Bantayev brothers. Law enforcement agencies in Chechnya informed the investigators that their agents had not detained Abubakar Bantayev and Salman Bantayev and had not carried out any investigation in respect of them. The brothers had not been detained on administrative or criminal charges. No special operations had been carried out in respect of the disappeared men. 50. The investigation in the criminal case failed to establish the whereabouts of Abubakar and Salman Bantayev. However, it found no evidence to support the involvement of servicemen of federal forces in the abduction of the applicants’ relatives. 51. The Government further submitted that the investigation into the abduction of the Bantayev brothers had been suspended and resumed on several occasions, and so far it had failed to identify the perpetrators. The applicants had been duly informed of all decisions taken during the investigation. 52. Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 32000. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. 53. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.