ITEMID: 001-120070
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SABANCHIYEVA AND OTHERS v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Locus standi;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient
JUDGES: Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
TEXT: 6. Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, in the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed persons, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T. of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties, the office of the Border Guard Service of the Federal Security Service and a few privately owned weapons shops. According to the Government, there were over two hundred and fifty participants in the attack.
7. The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005.
8. The applicants submitted that they were relatives of participants in the attack who died on 13 and 14 October 2005 or shortly afterwards (see the annex listing the applicants’ family connections to the deceased persons).
9. The Government did not dispute this claim, with the exception of the nineteenth applicant, Mrs Zhanna Fyodorovna Ifraimova, who, in their view, was not in any way related to the deceased Mr Ruslan Borisovich Tamazov.
10. According to the nineteenth applicant’s initial statement, the deceased Mr Ruslan Borisovich Tamazov was her husband. She later changed this submission, stating that they were not officially married but had lived together since February 2005. At the time of the events in October 2005 she was eight months pregnant. The nineteenth applicant has submitted a copy of a birth certificate issued on 9 July 2008 in the name of S.T., born on 8 December 2005. The certificate names Mr Ruslan Borisovich Tamazov as the girl’s father and the nineteenth applicant as her mother.
11. According to the information initially provided by the Government, on 13 and 14 October 2005 their forces successfully repelled the attack and killed eighty-seven local insurgents. The Government did not specify the names of those killed.
12. The Government also stated that on 14 October 2005 they arrested Mr Aslan Yuriyevich Bagov (one of the two nephews of the fiftieth applicant), who had gunshot wounds to the head and chest. He died in prison on 23 October 2005.
13. On 18 October 2005 Mr Kazbulat Betalovich Kerefov (one of the seventeenth applicant’s sons and a participant in the attack of 1314 October 2005) fired shots at police officers manning a local checkpoint and was killed when the officers returned fire.
14. In their observations on the admissibility of the case, the Government stated that the authorities had killed a total of ninety-five insurgents in the anti-terrorist operations mounted in response to the attack of 13 October 2005.
15. In essence, they acknowledged that all of the deceased referred to by the applicants were among those killed by the authorities.
16. It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25-78-05 in connection with the attack in Nalchik.
17. In the course of the investigation it was established that between 1999 and February 2005 a group of individuals, including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and AbuDzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property.
18. The applicants did not have any procedural status in the criminal proceedings in case no. 25-78-05.
19. Immediately following the attack, on 13, 20, 21 and 25 October 2005 an unspecified number of persons (including some of the applicants) signed collective petitions requesting various officials, including the prosecutors, to return the bodies for burial.
20. Between the end of October 2005 and until at least April 2006 the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed.
21. Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful, as they were rejected as premature both at first instance and on appeal.
22. On 13-14 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased insurgents on account of their deaths. An individual decision had been taken in respect of each of them, describing the degree and character of their individual involvement and concluding that these persons had taken part in the attack and died as a result of the ensuing fight. It appears that the deceased referred to by the applicants were among those concerned by this decision.
23. The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications.
24. Some of the applicants applied to the domestic courts in connection with the authorities’ failure to provide them with copies of the decisions of 13-14 April 2006. As a result of the proceedings, most of these applicants were furnished with a copy of the relevant decision. However, they were refused standing to take part in the criminal proceedings against the deceased as their official representatives or to have the deceased’s personal belongings returned to them.
25. In the Strasbourg proceedings the Government submitted copies of the decisions of 13-14 April 2006 in respect of each of the applicants’ relatives.
26. According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. According to the applicants’ submissions, it appears that they first learned of the cremations from the Government’s observations in the present case.
27. According to the Government, the cremations took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13-14 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular:
“... the head of investigation group ... [official S.], having examined the materials in case file no. 25-78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely:
[The decision names among the deceased all of the persons referred to by the applicants, see the list in the annex.]
At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure.
By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... were discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure.
Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ): “persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the 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.”
Pursuant to part 3 of Decree no. 164, “On interment of persons whose death was caused by the interception of terrorist acts carried out by them”, approved by the Government of the Russian Federation on 20 March 2003, “the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...”
[In view of the above, official S. decided to:]
bury the bodies of the 95 terrorists ...;
forward the decision to the President of the Republic of Kabardino-Balkariya for execution;
inform [his superiors] of this decision”.
28. The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them.
29. It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006.
30. The applicants submitted that they had first obtained a copy of the decision of 15 May 2006 in May 2007, along with the Government’s observations on the admissibility of the case. They also indicated that they had learned about the cremation of the corpses of their deceased relatives in September 2007 (see paragraph 26 above).
31. The applicants’ initial attempts to obtain judicial review of the decisions of 13-14 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments.
32. Some of the applicants contested the legislation governing the interment of terrorists before the Constitutional Court. Their initial complaints were rejected as premature. Eventually, the complaints of the thirteenth and twenty-fourth applicants were accepted for examination.
33. On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question:
“... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts.
3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.
The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension.
In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.
In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...”
34. The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review (see paragraph 87 below).
35. In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows:
“... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death...”
36. Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows:
“... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial.
At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...”
37. Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted:
“... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ...
The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...”
38. After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13-14 April and 15 May 2006.
39. Three applicants (nos. 12, 21 and 33) were able to obtain a copy of the decisions of 13-14 April 2006 concerning their deceased relatives, but did not pursue any proceedings in this connection or in connection with the decision of 15 May 2006.
40. Fifteen applicants (nos. 1, 2, 4, 8, 18, 25, 26, 32, 34, 35, 37, 39, 42, 43 and 44) did not claim or receive a copy of the decisions of 13-14 April 2006 and did not institute proceedings in connection with any of the decisions in this case.
41. The remaining applicants, with the exception of three (nos. 39, 42 and 43) obtained a copy of the decisions of 13-14 April 2006 concerning their relatives and brought court proceedings to contest them.
42. Seven applicants (nos. 3, 15, 17, 30, 38, 41 and 49; see table 1 in the annex), after a few sets of proceedings, obtained a favourable judgment, issued at final instance by the Supreme Court of the Republic of KabardinoBalkariya, which quashed both the decisions of 1314 April 2006 and the decision of 15 May 2006 as unlawful. In respect of the decisions of 13-14 April 2006, the court noted that these decisions had failed to take account of the recent amendments to Article 205 of the Criminal Code (see paragraph 76 below) and remitted the case to the investigating authority for fresh examination. The decision of 15 May 2006 was quashed in so far as it relied on the decisions of 1314 April 2006 and also because it had not been taken by a competent official. According to the applicants, these judgments remained without enforcement.
43. It appears that the domestic courts subsequently changed their position in connection with the requirement to take account of the amendments to Article 205 of the Criminal Code and began quashing the decisions by way of supervisory review (see paragraph 45 below).
44. Nineteen applicants (nos. 5, 6, 9, 10, 11, 13, 14, 16, 19, 20, 22, 24, 27, 28, 31, 40, 45, 46, 50; see table 2 in the annex), after several sets of proceedings, obtained a favourable judgment, issued at final instance by the Supreme Court of the Republic of Kabardino-Balkariya. These judgments concerned only the decisions of 13-14 April 2006, and quashed them as unlawful. The court noted that the decisions failed to take account of the recent amendments to Article 205 of the Criminal Code and remitted the case to the investigating authority for fresh examination. These applicants did not apparently bring separate proceedings in respect of the decision of 15 May 2006. According to the applicants, the judgments remained without enforcement.
45. According to the information submitted by the Government in connection with the proceedings brought by the thirteenth applicant, a fresh examination of the case in the lower courts resulted in a final decision of 3 November 2007 upholding the decision of 13-14 April 2006 in full.
46. In the domestic proceedings three applicants (nos. 7, 23 and 47; see table 3 in the annex) were expressly denied a copy of the decisions of 1314 April 2006 concerning their deceased relatives and, as a result, the competent courts were unable to review the lawfulness of the decisions of 13-14 April and 15 May 2006. The Supreme Court of the Republic of Kabardino-Balkariya specifically stated in their respective judgments that the investigating authority had unlawfully refused to furnish the applicants and the courts with a copy of the decisions of 13-14 April 2006 and to provide access to the relevant case-file materials in respect of these applicants’ deceased family members. In their submissions the respondent Government explained that the evidence collected by the investigation in respect of the deceased family members of the applicants in question had also been used in the criminal proceedings against the surviving participants in the attack, and that the refusal in question had been motivated by the need to preserve the integrity of these criminal proceedings.
47. Two applicants (nos. 29 and 36; see table 4 in the annex) obtained a copy of the decisions of 13-14 April 2006 in respect of their deceased relatives and unsuccessfully contested them in court. The Supreme Court of the Republic of Kabardino-Balkariya rejected their appeals and upheld the decisions as lawful. These applicants were subsequently successful in obtaining a favourable judgment from the same court, declaring the decision of 15 May 2006 unlawful because it had not been taken by a competent official.
48. The forty-eighth applicant, Mrs Oksana Nikolayevna Daova obtained a copy of the decisions of 13-14 April 2006 in respect of her brother Mr Valeriy Nikolayevich Tleuzhev and her husband Mr Zurab Nazranovich Daov and unsuccessfully contested them in court. By final judgments of 6 February 2007 and 8 July 2008 the Supreme Court of the Republic of Kabardino-Balkariya rejected her appeals in respect of her brother and husband respectively. It does not appear that she brought any court proceedings in respect of the decision of 15 May 2006.
49. The Government argued that the applicants could have obtained copies of the decisions of 13-14 April 2006 and relevant case-file documents whenever they wished.
50. The forty-eighth applicant indicated that only some of the applicants had been provided with such access.
51. According to the applicants who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses were kept in the town morgue and other locations, in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other.
52. On an unspecified date Mrs G.G. Kushkhova, apparently a relative of the thirtieth applicant, complained in writing that the bodies had been piled up and stored at street temperature, noting that some of the corpses were decomposing and giving off an intense putrid smell. On an unspecified date Mrs F.N. Arkhagova, the forty-second applicant, stated that she had seen the bodies on the ninth day after the events in question and that some of them were decomposing and contained worms. Mr Kereshev, the husband of the sixteenth applicant, said that when he had taken part in the identification procedure on 15 October 2005, the bodies had been naked and piled on top of each other. Similar written observations were made by Mr Alakayev, the fifth applicant’s husband, and Mrs Sabanchiyeva, the first applicant.
53. The applicants produced a video recording in support of their submissions, apparently filmed inside refrigerator wagons and confirming that the bodies were naked and that some of them were piled on top of one another.
54. In response to an enquiry by the Court dated 4 November 2005, the Government submitted that the bodies of those who had attacked the town had been kept at “premises specifically designed for the long-term storage of corpses and containing all the necessary equipment”.
55. In response to a letter from the applicants requesting an explanation for the appalling storage conditions, the Prosecutor General’s Office stated in a letter of 14 April 2006 that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms, in refrigerated chambers set to the appropriate temperature. The authorities did not disclose the locality where the bodies were stored.
56. In their observations on admissibility of 22 May 2007, the Government explained that following the events the corpses had initially been sent to the Nalchik morgue. They had then been stripped and the clothes sent for forensic expert examination. Thereafter all the corpses had been placed in two refrigerated wagons, equipped with all necessary storage facilities, and sent to the town of Rostov-on-Don for genetic examination. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies and that this was probably what had been filmed in the recording submitted by the applicants.
57. There is no information in the applicants’ submissions which could confirm the participation of four applicants, nos. 2, 8, 26 and 32, in the relevant identification procedure.
58. Thirteen applicants (nos. 4, 5, 6, 11, 14, 16, 30, 33, 36, 41, 44, 46 and 50) did not participate in the identification procedure in person because the relevant corpses were identified by someone else.
59. The remaining thirty-three applicants (nos. 1, 3, 7, 9, 10, 12, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 34, 35, 37, 38, 39, 40, 42, 43, 45, 47, 48 and 49) submitted hand-written statements confirming their personal participation in the identification procedure (see table 5 in the annex).
60. According to the applicants, they had access to the bodies both in the Nalchik town morgue and in two refrigerator wagons parked on a plot of land belonging to the Ministry of the Interior. Provision of access to the bodies was random, as not everyone who wanted to take part in the identification process was admitted. In some cases the provision of access was not properly documented.
61. Since the provision of access was limited, the relevant facilities were usually surrounded by crowds of relatives of the deceased.
62. The Government partly disputed the applicants’ submissions. They referred to the protocols of identification, confirming that all four applicants listed in paragraph 57 and the forty-forth applicant, Mrs Lyubov Mikhaylovna Gonibova, had taken part in the identification. They contested the personal participation in the identification procedure of the ninth (Mrs Anzhelika Yuryevna Arkhestova), the seventeenth to the twentieth applicants (Mr Betal Muradinovich Kerefov, Mr Magomed Khassimovich Attoyev, Mrs Zhanna Fyodorovna Ifraimova and Mrs Aysha Ismailovna Chagiran) and the thirty-ninth applicant (Mr Karalbi Masadovich Amshokov). They confirmed the participation of the remaining applicants listed in paragraph 59 above.
63. In the Government’s submissions all corpses had been initially held in the Nalchik morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. From 19 October 2005 the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all of the bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification procedure was the head of the investigation group, investigator P. From 22 October 2005 he was replaced by investigator S.
64. According to the Government’s most recent submissions, the overall number of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eighty-seven participants in the attack.
65. The Interment and Burial Act (no. 8-FZ, dated 12 January 1996) contains the following provisions:
“The present Federal Law defines interment as the ritual actions of burying a person’s body (or its remains) after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements. The interment may be carried out by way of placing the body (or its remains) in the earth (burial in a grave or in a vault), in fire (cremation with subsequent burial of the urn containing the ashes), in water (burial at sea). ...”
“1. The locations of interment are specially designated [in accordance with relevant rules] areas with ... cemeteries for burial of bodies (remains) of the dead, walls of sorrow for the storage of urns containing the deceased’s ashes..., crematoriums ... as well as other buildings ... designed for carrying out burials of the dead. ...”
“1. The statement of wishes of a person concerning the dignified treatment of his or her body after death (the will of the deceased) is a wish expressed in oral form in the presence of witnesses or in writing:
about consent or lack of consent to undergo an autopsy;
about consent or lack of consent to have parts or tissues of the body removed;
to be buried in a specific location, in accordance with a specific set of customs and traditions, next to specific people who died previously;
to be cremated;
entrusting the fulfilment of these wishes to a specific person.
2. Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [his/her] wishes, unless there are circumstances that render impossible the fulfilment thereof or if the [national] legislation provides for different rules.
3. Where a deceased made no statement of wishes, the right to authorise the actions specified in part 1 of this section shall belong to a spouse, close family members (children, parents, adopted children and adoptive parents, brothers and sisters, grandchildren and grandparents), other relatives or the legal representative of the dead, and in the absence of such persons, other persons who have assumed responsibility for burying the dead person.”
“The executors of a deceased person’s statement of wishes shall be persons as nominated in the statement, if they agree to act accordingly. Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly, the directions in the statement shall be executed by the surviving spouse, close family members or other relatives or legal representatives of the deceased. In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased’s statement of wishes, he or she may be buried by another person who has agreed to assume this obligation, or by a specialised funeral service.”
“1. On the territory of the Russian Federation every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes, with the provision for free of a plot of land for burial of a body (remains) or ashes in accordance with the present Federal Act ...”
“A spouse, close family members, other relatives, legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased, shall enjoy the following guarantees:
(1) the issuance of documents necessary for interment of a deceased within one day of the cause of death being established; in cases where there were reasons to place the deceased in a mortuary for an autopsy, the delivery of the body of the deceased at the request of a spouse, close family members, other relatives, legal representative or another person who has assumed the obligation to bury the deceased cannot be delayed for more than two days from the time when the cause of death is established; ...”
66. Section 3 of Russian Federation Law no. 130-FZ (the Suppression of Terrorism Act) defines terrorism as follows:
“... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates a danger for people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of undermining public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.”
67. Terrorist activity within the meaning of the Act encompasses:
“(1) organisation, planning, preparation and commission of a terrorist act;
(2) incitement to commit a terrorist act or violence against physical persons or organisations, or to destroy material objects for terrorist purposes;
(3) organisation of an illegal armed formation, a criminal association (criminal organisation) or an organised group for the commission of a terrorist act, or participation therein;
(4) recruitment, arming, training and deployment of terrorists;
(5) intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto.”
68. Section 3 defines a terrorist act as:
“... the direct commission of a crime of a terrorist nature in the form of an explosion, an act of arson, the use or threat of the use of nuclear explosive devices or of radioactive, chemical, biological, explosive, toxic, or strong-acting poisonous substances; destruction of, damage to or seizure of means of transport or of other objects; attempts on the life of State or public figures or of representatives of national, ethnic, religious or other population groups; seizure of hostages or abduction of persons; causing of danger to the life, health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat to cause such danger; the spreading of threats in any form or by any means; other actions that endanger people’s lives, cause significant loss of property or entail other socially dangerous consequences.”
69. In the same section a terrorist is defined as:
“... a person who takes part in carrying out terrorist activity in any form.”
70. On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage incident which produced heavy casualties, including the death of several dozen hostages (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 8-14, ECHR 2011 (extracts)).
71. Shortly after the attack, on 11 December 2002, Russia enacted changes to the Suppression of Terrorism Act by adding section 16(1), which reads as follows:
“[The] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the 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 remain undisclosed.”
72. On the same date Russia also enacted changes (FZ - no. 170) to the Interment and Burial Act by adding section 14(1), which states:
“Persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the 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.”
73. Decree no. 164 of the Government of the Russian Federation of 20 March 2003, adopted in accordance with section 16(1) of the Suppression of Terrorism Act, defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts conducted by them:
“... 3. Interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government...
4. Services provided by the specialist funeral agency in connection with the interment of [these] persons shall include: processing of documents necessary for interment; clothing of the body; provision of a grave; transfer of the body (remains) to the place of burial (cremation); burial.
The transfer of the body (remains) to the place of burial (cremation) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure.
The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act.
5. For the purposes of the burial the official conducting the preliminary investigation shall send the necessary documents to the specialist funeral agency, including a copy of the decision to close the criminal case and the criminal investigation with regard to [these] persons; he or she shall also send a statement confirming the death to the civilian registry office in the person’s last place of permanent residence.
6. The relatives of the persons [concerned] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate.
7. At the discretion of the official conducting the preliminary investigation, the relatives of [these] persons may be provided with copies of the medical documents concerning the death, produced by a medical organisation, and the report on the autopsy (if conducted); personal belongings shall also be returned if they are not subject to confiscation.
8. The specialist funeral agency shall produce a report on the completed burial, which shall be sent to the official conducting the preliminary investigation; the document shall become part of the criminal case file.”
74. On 14 July 2011 the Constitutional Court of the Russian Federation examined a complaint lodged by two individuals challenging the constitutionality of Article 24 part 1 sub-part 4 (Grounds for a decision refusing to institute or to discontinue criminal proceedings) and Article 254 part 1 (Discontinuance of criminal proceedings in a court hearing) of the Code of Criminal Procedure. The court concluded that the above-mentioned statutory provisions were unconstitutional, in so far as they provided for the possibility of terminating a criminal case owing to the death of a suspect (or an accused person) without obtaining the consent of that person’s close relatives. The court noted, in particular, as follows:
“... respect for fundamental procedural guarantees of individual rights, including the presumption of innocence, must be secured also in resolving the question concerning the termination of a criminal case with reference to non-rehabilitating circumstances. In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre-trial stages of the criminal proceedings, the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [who were not pronounced guilty of an offence] cannot be viewed as guilty – in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ...
At the same time, by discontinuing a criminal case owing to the death of a suspect (or an accused person) [the authority] also stops the process of proving his or her guilt, but in so doing the accusation or suspicion is not lifted, quite the contrary: in reality [the authority] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person’s death. By this logic, the person in question, without the adoption or entry into force of any verdict, is declared guilty, and this constitutes a breach by the State of its duty to secure the judicial protection of that person’s honour, dignity and good name protected by [various provisions of] ... the Constitution, and as regards the persons whose interests may be affected by this decision – it constitutes a breach of their right of access to a court...
... [in other words,] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected, which means, in particular, that there is a need to secure the consent of the suspect (or the accused person) to take such a decision] ...
... If, however, the person in question objects to [such a decision], he must be entitled to have the case against him proceed to the stage of its examination by the trial court ...
[The court, having analysed the applicable domestic provisions, concludes that] the Code of Criminal Procedure did not provide that [the relatives of the deceased person in respect of whom the criminal case was discontinued] had any rights which would allow them to protect the rights of their deceased relative who was formerly accused. Since the interested persons, and primarily the close relatives of the deceased, are not permitted to take part in the proceedings, the [relevant] procedural decisions ... are taken by an investigator or a court – without participation of the defence...
Such limitations do not have an objective or reasonable justification and entail a breach of [the constitutional rights of the persons in question] ...
[The court further decides that] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at [securing] his or her rehabilitation should take place through the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ...
[The court concludes that the rights provided for by Article 125 of the Code of Criminal Procedure were insufficient to guarantee an adequate level of judicial protection to the interested persons]...
[Thus, in cases where] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person, the competent investigative body or the court should proceed with the examination of the case. At the same time, the interested persons should enjoy the same rights as the deceased person [himself or herself] would have enjoyed ...”
75. Article 105 (“Murder”) of the Criminal Code, as in force at the relevant time, provides:
“1. Murder, that is the intentional infliction of death on another person, shall be punishable by deprivation of liberty for a term of six to fifteen years.”
76. Article 205 (“Terrorism”) of the Criminal Code, as in force before the entry into force on 1 January 2007 of Federal Law no. 153-FZ of 27 July 2006, provides:
“1. Terrorism, that is the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decision-making by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years ...”
77. The same Federal Law of 27 July 2006 renamed and amended Article 205 of the Criminal Code, which is now entitled “Terrorist act” and provides:
“1. The commission of an explosion, arson or other action, creating public fear and a danger for people’s lives, causing considerable pecuniary damage or other grievous consequences, with the aim of exerting pressure on decision-making by the authorities or international organisations, or the threat of committing such actions with the same aims shall be punishable by deprivation of liberty for a term of eight to twelve years.”
78. Article 5 of the Code of Criminal Procedure defines close relatives as spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren.
79. Part 1 of Article 11 of the Code provides:
“... a court, a prosecutor and an investigator shall be obliged to inform a suspect, an accused, a victim, a civil claimant and other participants in criminal proceedings of their respective rights, duties and liability and to provide them with the possibility of enforcing such rights.”
80. Articles 20 and 21 of the Code of Criminal Procedure and Chapter 16 of the Criminal Code of Russia provide that incidents resulting in the death of a person are cases of public prosecution which are to be investigated and prosecuted irrespective of the will of the victim of the crime. In all circumstances displaying signs of the commission of a crime the relevant officials are to take the measures set out in the Code of Criminal Procedure aimed at an investigation into the event and the identification of the person or persons responsible for committing the crime in question.
81. Article 22 of the Code describes the status of a victim in the criminal proceedings:
“The victim, his legal representative and (or) legal counsel shall have the right to take part in the criminal prosecution of the accused ...”
82. Article 24 of the Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings:
“(1). A criminal case cannot be instituted and an instituted criminal case should be discontinued on one of the following grounds:
...
(4) the death of an accused or a suspect, except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person. ...”
83. Article 27 of the Code also states:
“1. Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to one of the following grounds:
(2) discontinuance of a criminal case with reference to [one of the grounds mentioned in part 1 of Article 24, including sub-part 4] ...”
84. Part 2 of Article 27 lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue criminal prosecution. There is no need to obtain anyone’s consent in the event of that person’s death.
85. Article 42 of the Code defines the victim as a “physical person who has sustained physical, pecuniary or non-pecuniary damage” as a result of the criminal offence, the decision on recognising someone as a victim being taken by an investigator or a court. It further states that:
“... (2) The victim shall be entitled:
(4) to submit evidence;
(5) to make challenges and motions;
...
(8) to have a representative;
(9) to take part, with leave from an [investigator] in investigative actions which take place at his or her request ...;
...
(12) upon termination of the preliminary investigation, to study all of the materials of the criminal case ...;
(13) to receive copies of decisions instituting a criminal case, recognising him or her as a victim or refusing to do so, on discontinuance of a criminal case ...;
(22) to avail himself or herself of other rights set out in this Code.”
Part 8 of this provision states:
“In criminal cases concerning crimes which resulted in the death of a person, the rights of the victim as set out in the present provision shall be transferred to one of his or her close relatives.”
86. Article 45 of the Code states:
“1. A victim ... may be represented by counsel ...
4. Personal participation in a criminal case by the victim ... shall not preclude him or her from enjoying the right to be represented [by counsel in that criminal case].”
87. Article 19 of the Code provides for the possibility of appeal against the decisions of various authorities, in accordance with the procedure set out in the Code and particularly in Articles 123-127 thereof:
“The actions (or inactions) and decisions of the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code, by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests.”
“1. The public prosecutor shall consider the complaint within three days of the date of its receipt. In exceptional cases, where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint, it shall be admissible to consider it within a period of up to ten days; the applicant shall be duly informed.
2. Following consideration of the complaint, the public prosecutor shall take a decision allowing it in whole or in part or rejecting it.
3. The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it.
4. In the cases stipulated by the present Code the inquiring officer, the investigator or the public prosecutor shall be entitled to lodge an appeal with a higher-ranking prosecutor against the actions (inactions) and decisions of the public prosecutor.”
“1. Decisions by the inquiring officer, the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case, and other decisions and actions (or lack of action) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with citizens’ access to the administration of justice, may be appealed against before the district court at the place where the preliminary inquiry is conducted.
2. The complaint may be lodged with the court by the applicant or his or her defence counsel, legal representative or representative, either directly or through the inquiring officer, investigator or public prosecutor.
3. The judge shall verify the legality and well-foundedness of the actions (or lack of action) and the decisions taken by the inquiring officer, the investigator and the public prosecutor, not later than five days after the date of the lodging of the complaint, at a court session in the presence of the applicant and his or her defence counsel, legal representative or representative, if they are taking part in the criminal case, other persons whose interests are directly affected by the action (or lack of action) or by the decision against which the appeal has been lodged, and the public prosecutor. Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present, shall not be seen as an obstacle to consideration of the complaint by the court. Complaints shall be considered by the court at a public hearing unless stipulated otherwise. ...
4. At the start of the court session, the judge shall announce what complaint is being considered, introduce himself to the persons attending the court session and explain their rights and responsibilities. The applicant, if he is taking part in the court session, shall then adduce the grounds for the complaint, following which evidence shall be heard from other persons in attendance. The applicant shall have the right to respond.
5. After considering the complaint, the judge shall adopt one of the following decisions:
(1) a decision finding the action (or lack of action) or the decision of the corresponding official to be illegal or ill-founded and finding him or her liable to provide redress for the violation;
(2) a decision rejecting the complaint.
6. Copies of the judge’s decision shall be sent to the applicant and to the public prosecutor.
7. The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the judge deems it necessary.”
“1. Complaints and prosecutors’ appeals against judgments, rulings and resolutions of the courts of first instance and appeal courts, as well as complaints and prosecutors’ appeals against court decisions taken in the course of the pre-trial proceedings in the criminal case, shall be lodged in accordance with the arrangements laid down in ... [other provisions of the Code].
2. Complaints and prosecutors’ appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [other provisions of the Code].”
88. Article 148 of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings:
“1. If there are no grounds for the institution of criminal proceedings the public prosecutor, the investigator, the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings. A decision not to institute criminal proceedings on the ground set out in point 2 of the first paragraph of Article 24 of the present Code shall be admissible only in respect of the individual concerned.
2. When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned, the public prosecutor, the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations.
3. A decision not to institute criminal proceedings following verification of information concerning a crime that has been publicised in the mass media must be made public.
4. A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within 24 hours of the time the decision was given. In this case, the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal.
5. A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in Articles 124 and 125 of the present Code.
6. If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded, he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification.
7. If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded, he or she shall adopt the corresponding decision, forward it for execution to the public prosecutor and notify the applicant.”
89. By Resolution no. 16 of 1 November 1985 “On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings” the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old 1960 Code of Criminal Procedure:
“... 2. ... is recognised as a victim an individual who has sustained non-pecuniary, physical or pecuniary damage directly. The recognition of such an individual as the victim does not depend on his age, physical or psychological condition. ...
4. Since ... in cases involving crimes which resulted in the death of a victim, the [relevant] rights [are transferred] to [his or her] close relatives, one of whom, regard being had to the agreement between them, shall be recognised as the victim. If certain persons outside the circle of the close relatives of the deceased insist on being recognised as victims, they may also be recognised as such ...”
90. By Resolution no. 17 of 29 June 2010 “On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings”, which replaced in full Resolution no. 16 of 1 November 1985, the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new 2001 Code of Criminal Procedure:
“... 2. In accordance with the law, a victim, being a physical person who has suffered physical, pecuniary or non-pecuniary damage ... has in the criminal proceedings his or her own interests, for the protection of which he or she, as a participant in the criminal proceedings on the side of the prosecution, enjoys the rights of a party.
A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality, age, physical or psychological condition or other aspects of his or her personality, and irrespective of whether anyone has been identified as being involved in the commission of that offence.
The courts should also take into account any damage inflicted on the victim by the offence, or by a criminally prohibited act committed in a state of insanity. ...
3. In accordance with part 1 of Article 42 of the Code of Criminal Procedure a person who sustained damage [from an offence] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [competent] investigator ... or a court of the decision recognising that person as a victim. At the same time, it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation... [thus, this procedural decision does nothing but reflect the existing factual situation and does not determine it].
The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim, as well as the inaction of the [relevant official] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre-trial procedure in a criminal case set out in Articles 124 and 125 of the Code of Criminal Procedure. ...
5. In criminal cases concerning crimes which resulted in the death of a person, the rights of a victim shall be transferred to one of his or her close relatives (part 8 of Article 42 of the Code of Criminal Procedure). By virtue of part 4 of Article 5 of the Code of Criminal Procedure the close relatives are spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren.
If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims, these persons can also be recognised as victims. ...
7. The meaning of part 1 of Article 45 of the Code of Criminal Procedure is that representatives of the victim ... could be not only counsel, but also other persons ... capable of providing them with qualified legal assistance. ...
9. The courts must comply with the requirements of the law in that the victim, acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case, recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests (Article 42 of the Code of Criminal Procedure). ...
11. On the basis of the principle of equality of the rights of the parties (Article 244 of the Code of Criminal Procedure) a victim has the same rights as the defence to make challenges and applications, to submit evidence, to participate in its examination, to plead ...
The victim, his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position. At the same time, the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests, and to give them a reasoned assessment in taking the judicial decision. ...
With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ..., the courts, where there are justified grounds, should take measures to assist the victim in collecting the evidence (receipt of documents, lodging of requests for certificates, etc.).
12. The victim, his legal representative, representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests. In order to secure that right, the presiding judge should inform them of the date, time and place of the court proceedings. ...”
91. The applicants submitted that no other European country had a law on its statute book similar to section 14(1) of the Interment and Burial Act.
92. They also submitted that a similar practice had existed de facto in Israel and been used at an administrative level without ever being codified in law. They referred to the judgment in the case of Barake and Others v. Minister of Defence & Others, 14 April 2002, no. HCJ 3114/02, in which the Israeli High Court of Justice condemned the practice. According to the applicants, in 2004 the Israeli authorities announced that they were putting an end to the practice of refusing to return the bodies of Palestinians, “except in exceptional circumstances”.
93. The applicants also referred to seven opinions of the UN Human Rights Committee issued under the International Covenant on Civil and Political Rights in cases against Belarus, Tajikistan and Uzbekistan, in which the authorities had refused to inform the relatives of a prisoner under sentence of death of the date of execution, to return the body for burial or to disclose the place of burial (no. 886/1999, Bondarenko v. Belarus, 3 April 2003, paragraph 10.2; no. 887/1999, Lyashkevich v. Belarus, 3 April 2003, paragraph 9.2; no. 915/2000, Sultanova v. Uzbekistan, 30 March 2006, paragraph 7.10; no. 959/2000, Bazarova v. Uzbekistan, 14 July 2006, paragraph 8.5; no. 973/2001, Khalilova v. Tajikistan, 30 March 2005, paragraph 7.7; no. 985/2001, Aliboeva v. Tajikistan, 18 October 2005, paragraph 6.7; no. 1044/2002, Shukurova v. Tajikistan, 17 March 2006, paragraph 8.7). In particular, in the case of Aliboeva v. Tajikistan (no. 985/2001) the Human Rights Committee ruled as follows:
“6.7 The Committee has taken note of the author’s claim that the authorities did not inform her about [her] husband’s execution but continued to acknowledge her intercessions on his behalf following the execution. The Committee notes that the law then in force did not allow for a family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed prisoner. The Committee understands the continued anguish and mental stress caused to the author, as the wife of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution as well as the location of his gravesite. It recalls that the secrecy surrounding the date of execution and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the execution of her husband and the failure to inform her of his burial place, amounts to inhuman treatment of the author, in violation of article 7 of the Covenant”.
94. The applicants also relied on the judgment of the Inter-American Court of Human Rights of 15 June 2005 in the case of Moiwana Village v. Suriname (Inter-Am Ct. H.R., (Ser. C) No. 145 (2005). In that case State agents attacked Moiwana village in 1986, killing thirty-nine members of the N’djuka clan (paragraph 86 (15)). The authorities also prevented the survivors from recovering the bodies. It was further reported that some of the corpses were cremated. The Court gave a detailed account of the specific funeral rituals of the N’djuka, having noted that:
“86(7). The N’djuka have specific rituals that must be precisely followed upon the death of a community member. A series of religious ceremonies must be performed, which require between six months and one year to be completed; these rituals demand the participation of more community members and the use of more resources than any other ceremonial event of N’djuka society.
86(8). It is extremely important to have possession of the physical remains of the deceased, as the corpse must be treated in a specific manner during the N’djuka death rituals and must be placed in the burial ground of the appropriate descent group. Only those who have been deemed evil do not receive an honourable burial. Furthermore, in all Maroon societies, the idea of cremation is considered very offensive.
86(9). If the various death rituals are not performed according to N’djuka tradition, it is considered a moral transgression, which will not only anger the spirit of the individual who died, but may also offend other ancestors of the community. This leads to a number of ‘spiritually-caused illnesses’ that become manifest as actual physical maladies and can potentially affect the entire natural lineage. The N’djuka understand that such illnesses are not cured on their own, but rather must be resolved through cultural and ceremonial means; if not, the conditions will persist through generations.”
95. The Inter-American Court held in paragraph 100 of its judgment that the applicants had suffered inhuman treatment, contrary to Article 5 of the American Convention on Human Rights, because:
“... one of the greatest sources of suffering for the Moiwana community members is that they do not know what has happened to the remains of their loved ones, and, as a result, they cannot honor and bury them in accordance with fundamental norms of N’djuka culture. The Court notes that it is understandable, then, that community members have been distressed by reports indicating that some of the corpses were burned ...”.
96. As part of the just satisfaction award (paragraph 208 of the judgment) the Government of Suriname was ordered:
“... to recover promptly the remains of the Moiwana community members killed during the 1986 attack. If such remains are found by the State, it shall deliver them as soon as possible thereafter to the surviving community members so that the deceased may be honoured according to the rituals of N’djuka culture”.
VIOLATED_ARTICLES: 13
8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 14
3
8


ITEMID: 001-93266
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF FIRAT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicant was born in 1961 and lives in Istanbul.
5. On 5 September 2000 the applicant was arrested and taken into custody on suspicion of membership of an organised criminal gang and involvement in kidnapping on behalf of that organisation. On 8 September 2000 he was remanded in custody.
6. On 18 October 2000 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and twentyone other persons on the above-mentioned charges.
7. On 6 November 2000 the criminal proceedings against the applicant and the twenty-one other accused commenced before the Istanbul State Security Court. Eighteen hearings were held in total. Throughout the proceedings the applicant’s lawyer repeatedly requested that the applicant be released during trial, but those requests were dismissed at the end of each hearing by way of an interim decision using an identical expression, namely “having regard to the nature of the offence with which he is charged and the state of the evidence”.
8. On a number of occasions the applicant’s lawyer objected to the interim decisions of the Istanbul State Security Court extending the applicant’s detention, and in each case the objections were further dismissed by the Istanbul State Security Court using the aforementioned identical expression.
9. On 11 March 2004 the Istanbul Assize Court convicted the applicant as charged and sentenced him, in total, to 27 years and 4 months’ imprisonment.
10. On 20 April 2005 the Court of Cassation held a hearing and upheld the first-instance court’s judgment in respect of the applicant’s membership of an organised criminal gang, but quashed the judgment in respect of the sentence imposed on the applicant for kidnapping.
11. On 1 August 2005 the case was referred back to the Istanbul Assize Court.
12. On 10 November 2005 the Istanbul Assize Court decided to release the applicant pending trial. He was accordingly released the next day.
13. On 26 February 2008 the Istanbul Assize Court convicted the applicant as charged and sentenced him to imprisonment for, in total, twelve years, eight months and fifteen days.
14. The case is still pending before the Court of Cassation.
VIOLATED_ARTICLES: 5


ITEMID: 001-112101
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BERLADIR AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 4. The applicants were born in 1968, 1950, 1944, 1949, 1973, 1953, 1956, 1958, 1955 and 1965 respectively. They live in Moscow.
5. In November 2005 the Moscow city administration authorised a public gathering called “the Right March” by a number of nongovernmental organisations such as the Movement against Illegal Immigration and the Eurasian Youth Movement. The declared aim of the event was to commemorate the liberation of Moscow from occupation and to express the participants’ dissatisfaction with the flow of immigration into Russia. This public event included a parade from the Chistiye Prudy underground station down to Slavyanskaya Square, where a demonstration was held. The event lasted for some two and a half hours and attracted several thousand people, according to the applicants. Reportedly, a number of participants shouted “Russia for Russians, Moscow for Moscovites!” and displayed banners with slogans such as “Let’s clean the unwelcome guests out of the city!”; “Chechens, the war is over. It’s time to go home!” or “Russia belongs to us!”
6. Following the above event a “steering committee for an anti-fascist march” was formed, which included representatives of various human rights organisations. It was decided to hold a public gathering on 27 November 2005 to mark their opposition to the values proclaimed by the “Right March”. The event was planned to progress through several streets in central Moscow to Tverskaya Square (near the Moscow mayor’s office), where they would hold a demonstration. On 23 November 2005 the city administration stated that they would give permission only for the demonstration. The administration also wanted it to be held in a different place (Tverskaya Zastava Square) and for one hour instead of two.
7. The organisers did not challenge in court the conditions imposed by the mayor’s office. Instead, they preferred to withdraw their application to hold the march as planned, apparently considering that the modified conditions would work against the aims they sought to achieve by holding a public gathering.
8. Instead, the organisers opted to picket Tverskaya Square on the same date (27 November 2005 from 2 p.m. to 4 p.m.) next to the Dolgorukiy monument; they expected that up to fifty people would join the picket (пикетирование). There they intended to express their disagreement with the mayor’s office as to the location of the previously planned march and demonstration. It does not appear that this new event was meant any longer to be a direct reply to the “Right March”.
9. On 23 November 2005 thirteen persons, including one of the applicants (Mr Orlov), gave notice of the event, this time to the district authority, in order to comply with the Public Gatherings Act (see “Relevant domestic law and practice” cited in paragraph 19 below).
10. In a letter of 24 November 2005 referring to the “security of the participants” and the need to avoid causing obstruction to pedestrians and vehicles, the district authority suggested that this new event also be held in Tverskaya Zastava Square instead of Tverskaya Square from 2 p.m. to 3 p.m. It was explained that under a 1998 order the area around the Dolgorukiy monument was restricted to service vehicles of the mayor’s office. The organisers of the new event sent a letter expressing their disagreement with the authorities’ decision. On the same day, they informed the mayor’s office that they were no longer intending to hold a march and a demonstration as initially planned, in view of the mayor’s reply of 23 November 2005.
11. Prior to the date of the event, the organisers did not challenge in court the conditions imposed on the event by the district authority (see, however, the court decisions of 30 March and 3 October 2006 below). Instead, despite the position of the district authority, the organisers decided to hold a public gathering in Tverskaya Square on 27 November 2005 at 2 p.m. The special security squad proceeded to arrest some participants, allegedly without giving them time or opportunity to disperse after a verbal order to do so.
12. The applicants, with fifty other people, were taken to the Tverskoy police station and remained there until 7 p.m., while various records, including administrative offence records, were compiled.
13. On 29 and 30 November 2005 the Justice of the Peace delivered judgments finding the applicants guilty of a breach of the procedures for public gatherings (Article 20.2 of the Code of Administrative Offences). They were ordered to pay a fine of 1,000 Russian roubles (RUB) (except for the ninth applicant who had to pay RUB 500). The Justice of the Peace referred to the district authority’s letter of 24 November 2005 concluding that the public gathering was unlawful.
14. The court held as follows in respect of the first applicant:
“Under the Public Gatherings Act, a picket means an expression by one person or several people of his or their opinion in public, by way of displaying posters, banners and other means of visual propaganda, albeit without movement or use of sound-amplifying technical means ... It follows from the Act that a right to hold public gatherings entails a corresponding duty of the public authorities. It should be noted that representatives of the relevant public authorities should be appointed to ensure the lawfulness of the event, public safety and public security. Thus, to enable the event participants and the public officers to fulfil their obligations and duties, there should be rules laid down for the event ...
It follows from the material available that despite the orders of the police the event participants refused to stop the picket and thus committed a premeditated administrative offence ... It has not been established that the [applicant] acted as one of the event organisers. However, his actions disclosed a violation of the procedures for public gatherings because he did participate in a picket in a venue which had not been assigned for this purpose. At the same time, the court notes that he intended to take part in a public event and to express his opinion in relation to issues of general and political interest. He should also have observed the rules laid down for the event. However, failing to respect the circumstances, which were significant for the event and the police orders, he refused to stop the picket.”
The court made similar findings in respect of other applicants, except for Mr Orlov.
15. The court added in respect of Mr Orlov as follows:
“...’s actions disclosed a violation of the procedure for a picket because no proper notification had been made to the competent public authority in relation to the picket...”
16. The applicants appealed. By separate appeal decisions taken between 22 February and 10 April 2006 the Tverskoy District Court of Moscow upheld the decisions taken by the Justice of the Peace.
17. In separate proceedings Mr Orlov and another person sought to challenge the position taken by the district authority in its letter of 24 November 2005. In a judgment of 30 March 2006 the Taganskiy District Court of Moscow cited the relevant legislative provisionsOn 3 October 2006 the Moscow City Court endorsed the above conclusion on appeal.
18. Under Article 31 of the Russian Constitution, citizens have a right of peaceful assembly. This right can be limited by a federal statute in so far as it is necessary to protect the constitutional regime, morals, health or rights or interests of others (Article 55 § 3 of the Constitution).
19. Under sections 5 and 7 of the 2004 Public Gatherings Act in force at the relevant time, the organiser of a public event (except for an event involving one person) was to inform the competent authority of the event at least ten days in advance (at least three days in advance for a picket (пикетирование)). The organiser was required to indicate the purpose of the event, its form, the venue and the itinerary, as well as the date, timing and approximate number of participants.
20. The competent authority was to notify the organiser if it had a reasoned proposal for another venue and/or timing for the event. The organiser was required to inform the competent authority whether he or she refused or accepted the suggested new venue and/or timing.
21. The event could not take place if the event organiser and authority had not approved the alternative proposal (section 5 § 5).
22. A public event could be stopped if (i) there was a real threat to life or physical integrity of persons or property; (ii) the event participants had acted unlawfully or if the event organiser had knowingly breached the requirements of the Act as regards the conduct of the event (section 16). In such circumstances the representative of the public authority, who should be present at the event, could order the event organiser to put an end to the event. This representative should also explain the reasons for such order and should provide time for compliance with the above order. If the organiser had not complied, the public official could issue the same order to the participants. If both failed to comply, the police was to take the appropriate measures to stop the event (section 17).
23. A public event could not be held in zones close to dangerous industrial objects, the residences of the President of the Russian Federation, court buildings or prisons (section 8).
24. Under Article 20.2 § 2 of the Code a violation of the procedure concerning a public gathering is punishable by a fine.
25. By order no. 1471-RP of 30 December 1998, the Moscow city mayor introduced regulations concerning city-hall parking areas for service vehicles, including on Tverskaya Square, for some eighty vehicles (during weekdays, not Sundays or public holidays).
NON_VIOLATED_ARTICLES: 11
NON_VIOLATED_PARAGRAPHS: 11-1