THIRD SECTION

CASE OF BAPINAYEVA v. RUSSIA

( Application no. 48057/08 )

JUDGMENT

STRASBOURG

15 June 2021

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

In the case of Bapinayeva v. Russia ,

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

Darian Pavli, President, Dmitry Dedov, Peeter Roosma, judges, and Olga Chernishova , Deputy Section Registrar ,

Having regard to:

the application (no. 48057/08) 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, Ms Madina Magomedovna Bapinayeva (“the applicant”), on 7 August 2008;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the refusal to return the body of the applicant ’ s deceased son and the lack of an effective domestic remedy in that regard;

the parties ’ observations;

Having deliberated in private on 25 May 2021 ,

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

INTRODUCTION

1 . The case concerns the refusal of the Russian authorities to return the body of the applicant ’ s deceased son, who had allegedly participated in terrorist activity and was killed on 27 March 2007, and the lack of an effective domestic remedy in that regard.

THE FACTS

2 . The applicant was born in 1961 and lives in Nalchik. She was represented before the Court by lawyers from Stichting Russian Justice Initiative , a non ‑ governmental organisation (NGO) based in the Netherlands, in collaboration with another NGO, Astreya .

3 . The Government were represented by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the European Court of Human Rights, and subsequently by Mr M. Galperin, the Representative.

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . The applicant is the mother of Mr Radik Feliksovich Bapinayev , who was born on 15 June 1980.

6 . On 3 February 2006 Mr Bapinayev was charged with attempted terrorist attacks, trafficking and illegal possession of weapons, participation in an unlawful armed group, and armed assaults on law-enforcement officers and servicemen.

7 . According to the domestic authorities, on 27 March 2007 Mr Bapinayev disobeyed a police order to stop for an identity check on a street in Nalchik. He offered armed resistance to the police officers and attempted to escape by hijacking a passing car. As his attempts to flee proved to be unsuccessful, Mr Bapinayev fired at the car, smashing its back window. Later, when the police officers caught up with him, Mr Bapinayev opened fire on them. When one of the police officers fired at Mr Bapinayev to prevent further shooting, a grenade exploded in the hands of the latter. Mr Bapinayev died at the scene of the incident.

8 . According to forensic expert report of 29 March 2007, Mr Bapinayev ’ s death resulted from multiple gunshot and shrapnel wounds.

9 . On 24 April 2007 the applicant requested that the investigating authorities hand over the body of Mr Bapinayev to her for burial.

10 . On 2 May 2007 the investigating officer, in separate decisions, discontinued the criminal proceedings in respect of Mr Bapinayev on account of his death and decided to bury his body, relying on section 14.1 of the Federal Interment and Burial Act of 12 January 1996 (Law no. 8-FZ) and Article 3 of Decree no. 164 of the Government of the Russian Federation of 20 March 2003.

11 . On the same date, the investigating officer dismissed the applicant ’ s request of 24 April 2007, relying on the charges brought against Mr Bapinayev in 2006 and classifying his actions of 27 March 2007 as armed assault on law-enforcement officers, trafficking and illegal possession of weapons, attempted terrorist attack, attempted hijacking of a car and attempted murder.

12 . On 7 May 2007 the applicant lodged another request with the Prosecutor ’ s Office of the Republic of Kabardino-Balkaria asking that her son ’ s body be returned to her. On 10 May 2007 the Prosecutor dismissed her request on the same ground as used by the investigating officer in the refusal of 2 May 2007.

13 . On 16 and 30 May 2007 the applicant complained to the Nalchik Town Court about the decision to discontinue the criminal proceedings of 2 May 2007 and the refusals of 2 and 10 May 2007 to return her son ’ s body for burial.

14 . In a judgment of 26 June 2007, the Nalchik Town Court found the decision of 2 May 2007 to discontinue the criminal proceedings unlawful and held that the applicant ’ s complaint about the refusals to return her son ’ s body was premature. On 25 September 2007 the Supreme Court of the Republic of Kabardino-Balkaria (“the Supreme Court”) quashed the judgment of 26 June 2007 and sent the case back for a fresh examination.

15 . On 25 October 2007 the Nalchik Town Court examined the applicant ’ s complaint anew. It again found the decision of 2 May 2007 to discontinue the criminal proceedings unlawful and dismissed the applicant ’ s complaint about the refusals to return the body of her son as premature. On 18 December 2007 the Supreme Court upheld the judgment of 25 October 2007 as regards the dismissal of the applicant ’ s complaint about the refusals to return her son ’ s body but quashed the rest of that judgment and sent the complaint back for a fresh examination of the relevant part.

16 . On 25 January 2008 the Nalchik Town Court found the decision of 2 May 2007 to discontinue the criminal proceedings lawful. On 7 March 2008 the Supreme Court upheld the judgment of 25 January 2008. The courts held that the applicant and her representative had had access to the material in the criminal case file, that that material had been examined in those proceedings and that the evidence collected had attested to Mr Bapinayev ’ s participation in terrorist attacks and other criminal offences. The Supreme Court also refused to examine the applicant ’ s complaint about the refusals to return her son ’ s body for burial, as the dismissal of that complaint had already been upheld at final instance as a result of its cassation decision of 18 December 2007. On 4 February 2009 the Supreme Court dismissed a request by the applicant for supervisory review of the judgment of 25 January 2008 and the cassation decision of 7 March 2008.

17 . According to the applicant, the domestic authorities did not provide her with any subsequent details about the location of her deceased son ’ s body or its burial. The Government did not provide any information on this point.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

18 . For a summary of the relevant domestic law and other relevant sources, see Sabanchiyeva and Others v. Russia (no. 38450/05, §§ 33-37 and 65-96, ECHR 2013 (extracts)), and Maskhadova and Others v. Russia (no. 18071/05, §§ 116-50, 6 June 2013).

THE LAW

19 . Relying on Article 8 of the Convention, the applicant complained about the authorities ’ refusal to return the body of her deceased son. Article 8 of the Convention reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

20 . The Government submitted that the complaint should be declared inadmissible as the applicant had failed to exhaust domestic remedies. In particular, they referred to Ruling no. 16-P of the Constitutional Court of the Russian Federation delivered on 14 July 2011, and pointed out that, following the adoption of that ruling, it had been open to the applicant either to request that the investigating authorities conduct a preliminary investigation into Mr Bapinayev ’ s criminal case with a view to his possible rehabilitation or to lodge a new complaint with the Nalchik Town Court against the decision of 2 May 2007 to discontinue the criminal proceedings.

21 . The applicant contested that objection. She explained that her complaint about the discontinuation of the criminal proceedings had already been dismissed at final instance. The applicant also noted that the relevant ruling of the Constitutional Court had been adopted after she had lodged her application form with the Court.

22 . The Court notes that the Constitutional Court ’ s Ruling 16-P of 14 July 2011 was adopted in the proceedings instituted upon the complaints lodged by the applicants in Sabanchiyeva and Others v. Russia (no . 38450/05, § 32, ECHR 2013 (extracts)), which raised the same issues as the present case. The relevant parts of that ruling are reproduced in the Court ’ s judgments in Sabanchiyeva and Others (ibid., §§ 33-37) and in Maskhadova and Others v. Russia (no. 18071/05, § 130, 6 June 2013).

23 . The Court observes that it has already had the opportunity to assess the impact of the above-mentioned ruling on the domestic remedies available to the applicants in other similar cases concerning the Russian authorities ’ refusal to return the bodies of insurgents who were killed during anti-terrorist operations to their family members. In the cases concerned, the Court found that, although the Constitutional Court ’ s ruling had improved the situation of the applicants to some extent, it nevertheless had not provided them with sufficient procedural safeguards against arbitrariness, as the domestic courts had remained competent to review only the formal lawfulness of the measure and not the need for the measure as such (see, among other authorities, Sabanchiyeva and Others , cited above, § 154; and Maskhadova and Others , cited above, § 245).

24 . The Court finds no reason to arrive at a different conclusion in the present case. Therefore, the Government ’ s preliminary objection must be dismissed since the remedy relied on by the Government was not effective.

25 . The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

26 . The Government did not make any submissions as to the merits of the applicant ’ s complaint under Article 8 of the Convention.

27 . The applicant submitted that the authorities ’ refusal to return the body of her deceased son had been unlawful and disproportionate.

28 . The Court observes that the present case raises the same issue as already examined in Sabanchiyeva and Others and Maskhadova and Others (both cited above), and that the applicants in those cases made similar complaints under Article 8 of the Convention.

29 . In the above-mentioned cases the Court found that the measure in question had constituted an interference with the applicants ’ “private life” and “family life” within the meaning of Article 8 of the Convention, and that it could be considered to have been taken in the interests of public safety, for the prevention of disorder and for the protection of the rights and freedoms of others. However, having regard to the automatic nature of the measure and the authorities ’ failure to give due consideration to the principle of proportionality, the Court concluded that the measure in question had not struck a fair balance between the applicants ’ right to the protection of their private and family life, on the one hand, and the legitimate aims of public safety, prevention of disorder and the protection of the rights and freedoms of others, on the other hand, and that the respondent State had overstepped any acceptable margin of appreciation in this regard (see Sabanchiyeva and Others , §§ 117-47, and Maskhadova and Others , §§ 208-38, both cited above).

30 . The Court finds no reason to arrive at a different conclusion in the present case.

31 . It follows that there has been a violation of the applicant ’ s right to respect for her private and family life, as guaranteed by Article 8 of the Convention, as a result of the decision of 2 May 2007.

32 . Relying on Article 13 of the Convention taken in conjunction with Article 8 of the Convention, the applicant also complained of the lack of an effective remedy in respect of the authorities ’ refusal to return the body of her deceased son. Article 13 of the Convention provides:

“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.”

33 . The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

34 . The Court notes that the effectiveness of the relevant domestic remedies was evaluated in its judgments in Sabanchiyeva and Others (§§ 151-56) and Maskhadova and Others (§§ 242-47), both cited above.

35 . Having examined all the material submitted to it, the Court does not find any fact or argument capable of persuading it to reach a different conclusion as to the merits of the present complaint.

36 . Accordingly, the Court concludes that there has been a violation of Article 13 of the Convention taken in conjunction with Article 8 of the Convention.

37 . The applicant complained in addition to her submissions under Article 8 of the Convention that the refusal of the authorities to return the body of her deceased son had been contrary to Article 3 of the Convention.

38 . On the basis of the material submitted, the Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that this part of the case is not inadmissible on any other grounds. It must therefore be declared admissible.

39 . Regard being had to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 8 and Article 13 of the Convention taken in conjunction with Article 8, the Court finds that there is no cause for a separate examination of the same facts from the standpoint of Article 3 of the Convention (see Sabanchiyeva and Others , § 158, and Maskhadova and Others , §§ 248-49, both cited above).

40 . 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.”

41 . The applicant alleged that she had sustained non ‑ pecuniary damage and claimed compensation in an amount that the Court would consider to be appropriate in the circumstances of the present case.

42 . The Government submitted that the applicant had failed to make her claim in respect of non-pecuniary damage in a proper manner and referred to the Court ’ s findings in Maskhadova and Others (cited above) , where it had concluded that the finding of a violation of Article 8 of the Convention would be sufficient just satisfaction for the applicants.

43 . The Court considers that, in the circumstances of the present case, the finding of a violation of Article 8 of the Convention, taken alone and in conjunction with Article 13 of the Convention, constitutes sufficient just satisfaction for the applicant (see Sabanchiyeva and Others , § 171, and Maskhadova and Others , § 258, both cited above).

44 . The applicant claimed 6,945.50 euros (EUR) for the legal and other costs and expenses incurred. She requested that any award under this head be paid directly to Stichting Russian Justice Initiative. In support of her claim, the applicant submitted a conditional fee agreement signed between her and Stichting Russian Justice Initiative, an invoice for the above sum, and copies of the invoices for translation and postal services.

45 . The Government submitted that the amounts claimed were excessive and unjustified. In particular, they contended that the applicant had requested assistance from Astreya only in 2015, and that the issues raised in the present case corresponded to the well-established case-law of the Court and therefore should not have required extra time from a qualified lawyer.

46 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

47 . Having regard to the material in its possession, the Court considers it reasonable to award the applicant EUR 2,000 in respect of costs and expenses plus any tax that may be chargeable to her on that amount, to be paid directly into the bank account of Stichting Russian Justice Initiative.

48 . 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, EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant on the above amount, to be paid into the bank account indicated by the applicant ’ s representative organisation;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 15 June 2021 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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Olga Chernishova Darian Pavli Deputy Registrar President