ITEMID: 001-109044
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KINSKÝ v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible (Article 35-1 - Effective domestic remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1936 and died on 2 April 2009. On 30 April 2009 the applicant’s son and heir, Mr Carlos Kinský, informed the Court that he wished to pursue the application originally introduced by his father.
6. Through more than one hundred civil actions for determination of ownership lodged with Czech courts against the State, local municipalities and third persons, the applicant sought to recover property seized by Czechoslovakia after the Second World War. At that time, the applicant, an eight-year-old child, had allegedly been the owner of the property. During the confiscation his interests had allegedly not been protected by any representative despite the requirements of the law applicable at the time.
7. According to the Government, the total value of the property claimed by the applicant was estimated by the police at approximately 50-60 billion Czech korunas (approximately 2-2.4 billion euros).
8. On 9 October 2003 the Děčín District Court (okresní soud) dismissed the applicant’s action against the State, represented by the Ministry of the Interior, to determine ownership of certain real estate, finding that the property had been duly confiscated in 1945 pursuant to Presidential Decree No. 12/1945. A large volume of archive documents was taken as evidence during the proceedings.
9. The applicant appealed, asserting, inter alia, that the District Court had omitted to take certain evidence.
10. On 27 January 2005 the Ústí nad Labem Regional Court (krajský soud) upheld the judgment of the court of first instance.
11. On 23 November 2005 Section no. 28 of the Supreme Court (Nejvyšší soud), which is responsible for restitution matters, rent cases and litigations concerning recognition of foreign decisions, dismissed as inadmissible the applicant’s appeal on points of law (dovolání). It found that it had not been conclusively established that the applicant’s property had been duly confiscated, but that in any case the property had been transferred to the State, which had used it since then. Applying its previous case-law, the court held that a property taken by a State before 1990 could not be claimed in civil proceedings but only under the restitution laws.
12. On 18 April 2006 the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal whereby it was contended that he had not had a fair trial and had been discriminated against. The court relied on its stance, enshrined particularly in its opinion no. Pl. ÚS-st. 21/05, according to which a civil action for determination of ownership could not be used to circumvent the restitution legislation, and consequently found that the detailed arguments challenging the merits of the decisions were irrelevant.
13. On 13 November 2007 the District Court dismissed the applicant’s nullity action (žaloba pro zmatečnost) asserting bias on the part of the District Court judge who had dealt with the civil proceedings. Referring to decision no. II. ÚS 71/06 of the Constitutional Court of 28 February 2006, it held that the activities of certain politicians in creating a negative atmosphere around the applicant’s actions had been unacceptable in a system based on the rule of law. Similarly, it held that the obligation imposed on courts by the Ministry of Justice to report to it on the applicant’s proceedings had been incompatible with the principle of separation of powers between the judicial and executive branches of government. Nevertheless, it did not find that these activities had compromised the impartiality of the particular judge at the Děčín District Court challenged by the applicant.
14. At the relevant time various members of the Government and Parliament made public statements commenting on the proceedings instituted by the applicant. The media reported, inter alia, on the following statements.
15. The daily newspaper Právo published an article on 26 June 2003 entitled “Dostál [the Minister of Culture] wants to convene a meeting regarding restitutions” about the reaction of politicians to a court decision upholding one of the applicant’s claims. The article quoted Mr Nečas, then an M.P. and vice-president of the second largest party in the Parliament, as saying:
“I do not know how we as legislators can do anything about the absolutely insane rulings of judges that suggest that they are independent, but in this instance independent of common sense. Questioning the seizure of property of persons who were demonstrably Nazis simply on the basis of completely formal administrative details, such as that a document from 1946 lacks a stamp or that the stamp is square instead of round, gives rise to misgivings about the train of thought of the judge involved.”
16. On 30 June 2003 the weekly newspaper Týden published an interview with the Minister of Culture, Mr Dostál, in which he said, inter alia:
“I oppose attempts to return property to active Nazis or their children, as happened in the case of Mr Oldřich Kinský.”
17. On 2 July 2003 the website novinky.cz published comments by several politicians regarding another of the applicant’s cases where a court had ruled in his favour. Mr Nečas opined as follows:
“I cannot understand what mental processes members of our judicial system could have gone through to reach such conclusions.”
18. On 3 July 2003 Právo published another interview with the Minister of Culture, in which he disagreed with the courts’ decisions upholding one of the applicant’s claims:
“[I]f other judges decide similarly, then they will have to bear full responsibility for the fact that the State will be obliged to surrender property acquired under the [Presidential] Decrees.”
The minister also mentioned a meeting of politicians and lawyers regarding protection of the Presidential Decrees.
19. Several politicians, including the President and the Prime Minister, convened a series of meetings between themselves and lawyers on the issue of civil proceedings for the restitution of property acquired before 1948 in civil proceedings, like those brought by the applicant. According to media reports, the meetings resulted in several options for avoiding such decisions by courts, including requesting the Supreme Court to unify the divergent case-law, issuing new and perfect confiscation orders, adding an amendment to the Civil Code to prohibit actions for the determination of ownership of property acquired by the State before 1990, or amending the Constitution to the same effect.
20. On 25 September 2003 Právo reported on a hearing before Děčín District Court in the proceedings that are the subject of the present application. The hearing was also attended by the vice-governor of the Ústí nad Labem Region (místohejtman Ústeckého kraje) and a member of the governing party who said: “I am not here as a politician, but as the son of parents that Nazis deported to a camp. Today a counsel defends a descendant of the Nazis. I will do anything within my power so that these people do not achieve what they want”.
21. On 14 December 2003 the weekly newspaper Respekt published an interview with a Member of Parliament and a member of the Committee on Constitutional and Legal Affairs who said that the applicant had no right to restitution of any property. When asked whether the resolution of these questions should not be left to independent courts she replied that in her view they had not influenced the courts but that some court decisions had been wrong and that the courts were so independent as to be independent of laws.
22. On 12 January 2004 the Ministry of Justice sent letters to the presidents of regional courts asking them to provide it with information on a monthly basis on the developments in the proceedings brought by the applicant. It reasoned that it was requesting the information because of heightened interest of the media in these proceedings.
23. The Ústí nad Labem Regional Court, like the other regional courts, complied with this request and regularly forwarded to the Ministry information on the applicant’s proceedings within its region, including reports from the Děčín District Court drawn up by the judge dealing with the actions brought by the applicant. The reports included information about the proceedings which are the subject matter of this application, in which, at that time, appellate proceedings were pending.
24. The reports from all the regional courts where proceedings brought by the applicant were being conducted included procedural steps taken in the proceedings, the names of the defendants, the subject matter of the proceedings and the name of the judges dealing with the cases.
25. On 8 July 2004 the Ministry informed the Regional Court that it no longer wished to receive the information on a monthly basis, but only once every three months.
26. On 7 November 2006 the Ministry informed the regional courts that it was no longer necessary to provide this information.
27. In 2004, by order of a deputy of the Police President, the police set up a special investigative team code-named “Property” for the purpose of carrying out tasks relating to the examination of a suspicion of unlawful surrender of the Czech Republic’s property to natural or legal persons. The team’s activities consisted of a comprehensive examination of the suspicion that such criminal acts (which in their view could lead to pecuniary loss amounting to tens of billions of Czech crowns) had been committed.
28. On 10 March 2004 the police started investigating the applicant and his counsel on suspicion of fraud. The police contended that the investigation was justified by the applicant’s attempts to fraudulently claim in civil proceedings assets confiscated in 1945 under the Presidential Decrees as enemy property. They suspected that in the course of the civil proceedings the applicant had intentionally withheld relevant facts in order to support his action.
29. On an unspecified date in the course of the investigation, the police sent requests to the Děčín District Court and the competent department of the Ministry of the Interior for the purpose of quantifying the total value of the property claimed by the applicant and obtaining the applicant’s submissions and decisions of the court in his case. Both authorities complied with the requests.
30. On 27 April 2004 the Praha-východ District Court, at the request of the police, ordered the production of the records of two phone lines belonging to the applicant’s counsel from 26 January 2004 to 26 April 2004. According to the Government, only information on the telecommunications activity, namely, the times of calls, the numbers of incoming and outgoing calls, and approximate mobile phone locations was produced; the content of the telephone conversations was neither recorded nor intercepted.
31. In a letter of 26 July 2004 the Deputy Director of the Office for Foreign Relations and Information (Úřad pro zahraniční styky a informace), a Czech intelligence service, in reply to a request for cooperation, informed the police unit in charge of the investigation about the system of administration of church registers in Austria and ways of accessing them in order to locate the applicant’s birth certificate. Having found that access to the registers was restricted, the Deputy Director considered and rejected the possibility of using secret agents to acquire the documents in question and advised the police unit on how the State should proceed in the civil proceedings against the applicant, recommending that they manoeuvre the applicant into a situation where he would himself be obliged to establish his Czech citizenship.
32. On 28 April 2006 the police suspended the investigation, stating that in civil proceedings the applicant was not obliged by the Code of Civil Procedure to disclose all relevant facts, but only those supporting his claims. They also stated that the applicant’s counsel had not breached his duty under Article 101 § 1 of the Code to assert all important facts, because he was not obliged to assert facts favouring the opposing party. Thus, according to that decision, the applicant could not be regarded as having intentionally withheld certain information in a fraudulent attempt to recover the property by misleading the courts.
33. It appears from the decision that during their investigation the police tracked down enquiries the applicant’s counsel had made with a number of archives and state institutions in order to find documents relevant for the civil proceedings. When questioning employees of those institutions, the police also noted the areas of interest of the applicant’s counsel and the documents to which he had had access and had studied. The decision further shows that the investigation enabled the police to make a qualified assessment of the evidence which the applicant might use as the plaintiff in the civil proceedings against the State.
34. On 8 June 2006 the applicant and his counsel found out by chance that they had been under police investigation. Neither of them had ever been questioned during the investigation.
35. On 5 December 2006 the applicant’s counsel lodged a constitutional appeal with the Constitutional Court. Invoking the right to confidentiality of communications with his client, he challenged the production of the records of his telephone communications as contrary to his right to respect for the confidentiality of telephone communications under Article 13 of the Czech Charter of Fundamental Rights and Freedoms. He requested that the order of the Praha-východ District Court of 27 April 2004 be quashed, the police case file disclosed and the records destroyed.
36. On 27 September 2007 the Constitutional Court allowed the appeal and quashed the order as unlawful, ordering the police to destroy all the records of the telephone communications. The court found:
“... the State has the standing of defendant in a set of civil proceedings initiated by a client of the complainant [that is, the applicant]. It litigates with the claimant on an equal footing in such proceedings. To defend its interests there, it is equipped with staff and finances from the State budget. If criminal proceedings are brought simultaneously with these [civil] proceedings ... despite the fact that a reasonable suspicion of a crime, which is one of the legal requirements for the initiation of any criminal proceedings, does not exist, there is a logical presumption that the State may at least attempt to improve its legal position in the civil proceedings by acquiring information through the prosecuting authorities and its other security agencies, or even attempt to deter the other litigant. Such conduct by the State is absolutely unacceptable in a democratic society and deserves to be condemned ... Although the criminal proceedings were finally rightfully suspended in the instant case, it remains alarming for the democratic development of the country that the suspension took place only after massive, and probably extremely expensive and entirely superfluous, criminal proceedings which should have never been initiated.
...
... the police decision to suspend the investigation was based on a purely legal conclusion that could have been arrived at without evidence consisting of 4,384 pages ... including materials procured by means of legal assistance provided by third countries and information supplied by the intelligence service ... The police ... and the supervising prosecutor ... could have arrived at the same conclusion at the outset [of the investigation].”
37. The relevant domestic law and practice regarding confiscation of property under the Presidential Decrees and its restitution are set out in the Court’s decision Des Fours Walderode v. the Czech Republic (dec.), no. 40057/98, 4 March 2003.
38. Article 101 § 1 stipulates that in order to achieve the aim of proceedings, parties are obliged, inter alia, to assert all facts relevant to the case.
39. Article 119a provides for the principle of proceedings concentration; it stipulates that parties to proceedings must disclose all material facts and specify evidence prior to the court of first instance pronouncing its decision in the case, because facts and evidence claimed after that time can only constitute a reason for lodging an appeal under the conditions exhaustively listed in Article 205a (for example, in the case of defects in the proceedings, in order to undermine the credibility of evidence forming a ground for the ruling of the court of first instance, or if the facts to be proved occurred only after the first-instance decision).
40. Section 1(2) provides that the Office for the Representation of the State in Property Matters represents the State, inter alia, in proceedings before courts. Section 15(1) provides that the Office is supervised by the Ministry of Finance.
41. In March 2004 Parliament adopted Act no. 120/2004 amending this law. Under the newly added section 13a the Office may represent a municipality responding in civil proceedings to an action that seeks to determine the ownership of real estate, and/or its appurtenances, acquired from the State, or to an action for such real estate to be vacated. Such legal services are provided free of charge. According to section 13d the Office may intervene on behalf of and in the name of the State and alongside a municipality in such civil proceedings if the State has a legal interest in the outcome of the proceedings.
42. The Explanatory report to Act no. 120/2004 stated that it was in the State’s interest that the assets of municipalities were not diminished. It noted that municipalities often faced complicated judicial proceedings, for example under the Presidential Decrees, but that they did not have the necessary expert capacity to conduct such proceedings. Consequently, using the services of the Office would be the only way for many municipalities to defend their property acquired from the State.
43. Article 158 provides that at the stage prior to the initiation of a criminal prosecution the police are obliged, on the basis of their own findings, criminal complaints, or suggestions from other persons and authorities which may lead to the conclusion that there exists suspicion that a criminal offence has been committed, to carry out all the necessary examinations and take the required measures to detect the facts that indicate the commission of a criminal offence and to find the offender; they are also obliged to take the necessary measures to prevent criminal activities.
44. Section 72(1)(a) stipulates that a constitutional appeal may be submitted: a) under Article 87 § l (d) of the Constitution by a natural or legal person if he or she alleges that his or her fundamental rights and basic freedoms guaranteed in the constitutional order have been infringed as the result of a final decision in proceedings to which he or she was a party, or of a measure or some other encroachment by a public authority.
45. Under section 72(3) a constitutional appeal must be lodged within sixty days of the date on which a final decision on a last remedy is served on an applicant. If the law does not provide for any legal remedy, the timelimit is triggered by the date on which the applicant learns about an infringement. In such a case, a constitutional appeal may not be lodged later than one year from the date when the infringement occurred.
46. Section 118 stipulates that the task of the State administration of courts, carried out by the Ministry of Justice, is to create conditions for the proper conduct of justice, especially in terms of personnel, organisational, economic, financial and educational affairs, and to supervise, in the manner and within the limits set by this law, the tasks entrusted to the courts in order to ensure that they are carried out properly. The State administration of courts cannot interfere with the independence of the courts.
47. Under section 123(2) the Ministry of Justice monitors and evaluates the conduct of proceedings by and decisions of high, regional and district courts solely in terms of the principles of the dignity of judicial conduct and ethics and whether the proceedings have suffered from unnecessary delays.
48. The plenary of the Constitutional Court found that the restitution laws could not be circumvented by civil actions for determination of ownership. Nor could the protection of ownership rights extinguished before 25 February 1948 be triggered unless the restitution laws provided for redress in that respect.
49. In this decision the Constitutional Court dismissed the applicant’s constitutional appeal contesting the dismissal of his objection of bias in respect of a judge who had heard one of his civil actions. In his appeal the applicant alleged a violation of the right to a fair trial as a result of political pressure reflected, inter alia, by amendments to legislation, such as Act no. 120/2004, the revisiting of case-law by the domestic courts, public statements by politicians to the applicant’s detriment, and the reporting duties imposed on courts by the Ministry of Justice.
“The Constitutional Court has already held in several decisions on constitutional appeals by the same applicant (for example ...) that the activities of some politicians referred to by the applicant, be they verbal expressions to the media or other, aimed at creating a negative atmosphere around the legal actions of the applicant, or constituting direct attempts to interfere in these proceedings, were unacceptable in a system based on the rule of law.
This is even more valid for the activities of the Ministry of Justice that the Constitutional Court has had an opportunity to acquaint itself with from documents presented by the applicant ... The documents show that the Ministry of Justice imposed on the ordinary courts an obligation to provide information to such an extent that it was incompatible with the principle of separation of powers between the judicial and executive branches of government (from the documents adduced it does not appear that the Ministry pursued the aim of securing the proper administration of justice, especially in the personal, organisational, economic, financial and educational domains, or that it was motivated by efforts to prevent or eliminate delays in the proceedings or to ensure that these were conducted in a dignified manner and in accordance with judicial ethics – see section 118 in conjunction with section 123 of the Act on Courts and Judges).”
50. Nevertheless, it held that these activities alone could not cast doubts on the impartiality of individual judges. It found that the applicant had failed to substantiate his allegation that the particular judge whose partiality he challenged had not been impartial.
51. The Constitutional Court dismissed as manifestly ill-founded a constitutional appeal by the applicant arising from another set of civil proceedings for determination of ownership, referring only to its Opinion no. Pl. ÚS – st. 21/05. It did not consider in detail the arguments of the applicant, which concerned the criminal investigation against him and his counsel, stating that, in view of the Opinion, that would have been superfluous.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76493
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BAZORKINA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 2-1 - Life;Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Inhuman treatment;Prohibition of torture);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1938 and lives in the town of Karabulak, Ingushetia. The complaint is also brought in respect of the applicant’s son, Khadzhi-Murat Aslanbekovich Yandiyev, born in 1975.
10. The facts surrounding the disappearance of the applicant’s son were partially disputed. In view of this the Court requested that the Government produce copies of the entire investigation file opened in relation to Khadzhi-Murat Yandiyev’s disappearance.
11. The parties’ submissions on the facts concerning the circumstances of the apprehension and disappearance of the applicant’s son and the ensuing investigations are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
12. The applicant’s son, Khadzhi-Murat Aslanbekovich Yandiyev, was born on 27 August 1975. Until August 1999 he was a student at the Moscow Sociology University. The applicant submits that he left the University in August 1999 before completing his final year of studies. One of his classmates told the applicant that her son had travelled to Grozny, Chechnya. The applicant believes that he wanted to find his father, who had apparently gone there. She has not heard from her son since August 1999.
13. In autumn 1999 hostilities began in Chechnya. After Grozny was captured by federal forces in late January - early February 2000, a large group of Chechen fighters left the city and moved south-west towards the mountains. En route the fighters, and anyone leaving the city with them, encountered mine fields. Many people sustained injuries, especially to their feet and legs. Many of the wounded were treated in a hospital in the village of Alkhan-Kala (also called Yermolovka), which was taken by the Russian military in early February 2000.
14. On 2 February 2000 the applicant saw her son on a news broadcast about the capture of Alkhan-Kala by the Russian forces. He was wearing camouflage uniform and was being interrogated by a Russian officer, who was also wearing camouflage.
15. The applicant later obtained a full copy of the recording, made by a reporter for the NTV (Russian Independent TV) and CNN who had entered Alkhan-Kala with the federal troops. A copy of that recording and a transcript of the interrogation have been submitted to the Court by the applicant.
16. The recording shows the applicant’s son, who is standing near a bus with wounded men. The bus is surrounded by Russian soldiers and the wounded are being removed from the bus. A passing soldier pushes the applicant’s son on his right leg; he winces with pain. He is speaking in a low voice and his words are barely audible. The officer questioning him is speaking in a harsh voice. The following is a translation of the relevant parts of the transcript:
“Officer: - Turn your face [to me]! Turn it properly. Who are you?
The detainee answers something, but the words are not audible.
Officer: - What did you say? From Ingushetia? - / The detainee says something about Nazran/ - From Nazran? Where do you live in Nazran?
Another serviceman who is standing nearby orders: Hands out of your pockets!
...The officer takes something - identity documents - from the pocket of the detainee’s camouflage jacket, and inspects them, asking questions. The answers are not audible.
Officer: - What is your last name? What is your first and patronymic name?
The detainee: - Born on 27 August 1975.
Another officer: - Alexander Andreyevich, we need to get the convoy group ready. We have to take all three buses there.
The officer takes something out of a small leather packet, wrapped in cellophane, that was among the detainee’s papers [apparently, a compass], and shows it to somebody: - There, you see! A solid, trained fighter.
He puts the device back into the packet and wraps it in cellophane.
Another officer asks: - Where did you leave your arms?
The detainee, shown with his head to the side: - My weapons were left over there.... /Says something about a mine field. /
The second officer repeats: In a mine field?
...The officer, pointing at his camouflage jacket: - From which soldier did you take this? From a federal soldier? From [one of] your soldiers?
The detainee says something to the effect that it was given to him. He says something about “fighting against”.
The officer: - Fighting against whom? Fighting against such [people] as here? Why did you come here? People are dying because of you!
The detainee: - Because of me?
The officer: - Of course!
The detainee: - People are dying...
The officer: - Take him away, damn it, finish him off there, shit, - that’s the whole order. Get him out of here, damn it. Come on, come on, come on, do it, take him away, finish him off, shoot him, damn it...
The detainee is led away by two soldiers”.
17. The video also shows Russian military equipment and other wounded detainees. They are taken out of the buses or remain inside; many have their feet and legs wrapped in bandages or cellophane. The video also contains interviews with the villagers of Alkhan-Kala, who say that the village was shelled on the previous day.
18. The CNN journalists who filmed the interrogation later visited the applicant in Ingushetia and identified the interrogating officer as Colonel-General Alexander Baranov.
19. After seeing her son on the news broadcast on 2 February 2000, the applicant immediately began searching for him. She has had no news of him since.
20. She applied on numerous occasions to prosecutors at various levels, to the Ministry of the Interior and the Ministry of Justice, to the Special Envoy of the Russian President for rights and freedoms in the Chechen Republic, and others. She also personally visited detention centres and prisons in Chechnya and other regions in the Northern Caucasus.
21. Acting on the applicant’s behalf, the NGOs Human Rights Watch and Memorial and the Head of the OSCE mission in Chechnya forwarded requests for information about her son to various bodies.
22. The applicant received very little substantive information from official bodies about the investigation into her son’s disappearance. On several occasions she received copies of letters from various authorities directing her complaints to the Military Prosecutor’s Office for the Northern Caucasus, to the Grozny District Prosecutor’s Office and to the military prosecutor of military unit no. 20102.
23. On 18 August 2000 the Main Prisons Directorate of the Ministry of Justice (GUIN, Главное Управление исполнения наказаний Министерства Юстиции РФ, ГУИН) informed the applicant that her son was not being held in any prison in Russia. The applicant was advised to apply to the Ministry of the Interior.
24. On 1 November 2000 the Special Envoy of the Russian President for rights and freedoms in the Chechen Republic replied to the Head of the OSCE mission in Chechnya, stating that the applicant’s son was listed as no. 363 in the list of missing persons compiled by his office following citizens’ complaints. On 1 November 2000 his office had forwarded a request for information in respect of Yandiyev’s whereabouts to the Prosecutor General.
25. On 24 November 2000 the military prosecutor of military unit no. 20102 in Khankala, where the headquarters of the Russian military forces in Chechnya were based, returned the applicant’s complaint to the Grozny District Department of the Interior, with a copy to the applicant. The accompanying letter stated that there were no grounds to apply to the military prosecutor’s office, because the “attached materials did not corroborate the involvement of any military servicemen in the disappearance of the applicant’s son”.
26. On 30 November 2000 the military prosecutor of military unit no. 20102 replied to the NGO Memorial that, following examination of its submissions, it had been concluded that “Yandiyev’s corpse had never been discovered and it did not follow from the videotape that he had been killed, as the videotape did not contain such facts.” Consequently, it was decided, under Article 5 part 1 of the Code of Criminal Procedure, not to open a criminal investigation on account of the absence of a criminal act. In a similar reply to Memorial, dated 30 December 2000, the same military prosecutor stated that there were no grounds to conclude that military servicemen had been responsible for the actions shown in the videotape.
27. On 8 December 2000 the Chechnya Prosecutor informed the Special Envoy about progress being made in several cases, including that involving a videotape “where an officer of the federal forces orders the execution of a wounded fighter. The latter was identified by his relatives as Yandiyev Kh. S. The said videotape has been forwarded to the military prosecutor of military unit no. 20102 for checking and investigation under Article 109 of the Criminal Procedural Code”.
28. On 18 December 2000 the Moscow bureau of Human Rights Watch sent a letter to the General Prosecutor with the following questions:
“(1) Was a criminal investigation opened into Yandiyev’s disappearance?
(2) Was the identity of the interrogating officer established?
(3) Was he questioned? If not, why not?
(4) Were the whereabouts of Yandiyev established, in particular if he was still alive?
(5) Was the interrogating officer or anybody else charged with Yandiyev’s “disappearance”?
If a criminal investigation into Yandiyev’s “disappearance” and ill-treatment has not been opened, please open such an investigation.”
29. On 29 December 2000 and 24 January 2001 the Military Prosecutor’s Office for the Northern Caucasus informed the applicant and Human Rights Watch that their complaints had been forwarded to the military prosecutor’s office of military unit no. 20102.
30. In February 2001 two individuals, I. and B., submitted affidavits to the head of the Karabulak District Department of the Interior, in which they stated that on 2 February 2000 Khadzhi-Murat Yandiyev had been detained in Alkhan-Kala by federal troops. The affidavits did not contain the addresses of I. and B. and did not explain how they became aware of Yandiyev’s detention.
31. On 13 February 2001 the Chechnya Prosecutor wrote to Memorial acknowledging receipt of the videotape depicting Khadzhi-Murat Yandiyev’s interrogation. The videotape had been forwarded to military unit no. 20102 for the purposes of the investigation.
32. On 13 and 27 February 2001 the military prosecutor of military unit no. 20102 forwarded all requests pertaining to the case to the Grozny District Department of the Interior.
33. On 16 May 2001 Human Rights Watch wrote to the Military Prosecutor’s Office for the Northern Caucasus, asking the prosecutor to quash the decision by the military prosecutor of military unit no. 20102 not to open a criminal investigation. The letter referred to the contents of the videotape and to the fact that Yandiyev had not been seen subsequently. It again requested that the officers who appeared in the recording be identified and questioned. In reply, on 31 May 2001 the Military Prosecutor’s Office wrote that an inquiry would be conducted. On 22 June 2001 it informed Human Rights Watch that all the documents pertaining to the case had been transferred to the Grozny District Department of the Interior.
34. On 14 July 2001 a prosecutor from the Chechnya Prosecutor’s Office opened criminal investigation no. 19112 into the abduction of Khadzhi-Murat Yandiyev by unidentified persons in February 2000 in Alkhan-Kala. The decision referred to Article 126 part 2 of the Criminal Code (kidnapping).
35. On 17 August 2001 Human Rights Watch again sent a letter to the Chief Military Prosecutor. On 4 September 2001 he replied that the criminal case was being investigated by the local prosecutors’ office in Chechnya, which would inform the interested parties of its progress.
36. The applicant submits that in December 2001 she was visited at her home by certain persons who stated that they were carrying out a population census. They asked her and her neighbours about her son and whether he had returned home. The next day they returned and told her that they were from the Karabulak Town Prosecutor’s Office and that they had received documents from the Chechnya Prosecutor’s Office pertaining to her son’s disappearance. The applicant confirmed that her son was missing and that she had had no news of him.
37. On 23 October 2002 the SRJI asked the Chechnya Prosecutor for an update on the investigation into Yandiyev’s “disappearance” and possible killing. No response was given.
38. On 20 December 2002 the SRJI submitted a similar request for information to the General Prosecutor’s Office. On 4 February 2003 the General Prosecutor’s Office informed the SRJI that its letter had been forwarded to the Prosecutor’s Office for the Southern Federal Circuit. In March 2003 that Office informed the SRJI that its request had been forwarded to the Chechnya Prosecutor’s Office.
39. On 15 April 2003 the SRJI wrote to the military prosecutor of military unit no. 20102 and asked, with reference to its letter of 30 November 2000, for a copy of the decision by which he had refused to open a criminal investigation into the applicant’s complaint about her son’s possible murder. In June 2003 the military prosecutor responded that all documents related to the case had been forwarded to the Grozny District Temporary Department of the Interior (VOVD) on 24 November 2000.
40. On 7 December 2003 the investigator of the Grozny District Prosecutor’s Office informed the applicant that the investigation in criminal case no. 19112 had been resumed on 6 December 2003. On 6 February 2004 the applicant was informed by the same Office that the investigation had been adjourned for failure to identify the culprits. The applicant was informed that it was possible to appeal that decison.
41. The applicant submits that on 30 March 2004 she was visited at her home in Karabulak by two persons from the Grozny District Prosecutor’s Office who again questioned her about her missing son and about other members of her family. The applicant submitted a description of her son, but explained that she had run out of photographs of him because she had previously submitted them to various offices, including the prosecution service. The applicant signed the record of the questioning.
42. The applicant referred to the Human Rights Watch report of March 2001 entitled “The ‘Dirty War’ in Chechnya: Forced Disappearances, Torture and Summary Executions” which reports Khadzhi-Murat Yandiyev’s story and his “disappearance” after detention by Russian servicemen.
43. In November 2003 the application was communicated to the Russian Government, which were requested at that time to submit a copy of investigation file no. 19112. In March 2004 the Government submitted 80 pages out of about 200. The Court on two occasions reiterated its request for the remaining documents, to which the Government responded that their disclosure would be in violation of Article 161 of the Code of Criminal Procedure, would compromise the investigation and would prejudice the rights and interests of the participants in the proceedings.
44. In September 2005 the Court declared the application admissible and reiterated its request for the remaining documents. In November 2005 the Government submitted a copy of the entire criminal investigation file, comprising five volumes (about 900 pages) and three volumes of attachments (about 700 pages). In addition, in January and March 2006 the Government submitted two more volumes of the latest documents from the criminal investigation file (comprising about 470 pages).
45. The investigation established that the applicant’s son had been detained on 2 February 2000 in Alkhan-Kala, together with other members of illegal armed groups. Immediately after arrest he was handed over to servicemen from the GUIN for transportation to the pre-trial detention centre in Chernokozovo, Chechnya. Khadzhi-Murat Yandiyev did not arrive at Chernokozovo and his subsequent whereabouts could not be established. As of July 2001 Yandiyev was placed on the search list as a missing person, and as of October 2004 his name was placed on the federal wanted list. In October 2004 a criminal investigation in respect of Khadzhi-Murat Yandiyev was opened by the military prosecutor of the United Group Alliance (UGA) under Article 208 of the Criminal Code – participation in an illegal armed group.
46. The applicant and her husband were questioned on several occasions and granted victim status in the proceedings. The investigation also identified and questioned a large number of eye-witnesses to and participants in the events, including servicemen from the army, the interior troops and the GUIN, journalists and local residents. Several witnesses confirmed that they had observed the encounter between Yandiyev and Colonel-General Baranov and that the latter’s words had been regarded by everyone present not as an order but as “a figure of speech” aimed at calming down Yandiyev, who had behaved in an aggressive and provocative manner and could have inspired disobedience among the detainees. After questioning Yandiyev had been taken away from the bus containing the other wounded and had been placed against the fence; he had remained there for some time. The file also contains a statement by General Nedobitko, who had been in charge of the operation and who denied that any summary executions had taken place. All servicemen present were questioned as witnesses. No one was charged with a crime.
47. Colonel-General Baranov was questioned twice about the events and stated that he had not given an order to “shoot” Yandiyev, but that he had intended to stop his aggressive behaviour and to prevent possible disturbances that could have ignited violence and entail further casualties among the arrested insurgents and the federal forces.
48. Several expert reports were carried out on the video recording in question, in order to establish its authenticity; to establish whether the conversation between General Baranov and Yandiyev could be regarded as a proper order given within the chain of command; to evaluate the psychological state of the persons depicted; and to conclude whether the General had insulted Yandiyev. The videotape was found to be authentic. An expert report also concluded that the words used by General Baranov could not have been regarded as a proper order issued to his subordinates within the military chain of command because of its inappropriate form and contents.
49. The investigation did not establish the fate of Yandiyev following his transfer to the GUIN servicemen on 2 February 2000. Various detention centres, military and law-enforcement bodies denied that his name had ever been on their records. Several men who were detained in Alkhan-Kala on 2 February 2000 stated that they had not seen Yandiyev after his detention.
50. Between July 2001 and February 2006 the investigation was adjourned and reopened six times. The case was transferred from the Chechnya Prosecutor’s Office to the Grozny District Prosecutor’s Office and then to the military prosecutor of the UGA. The majority of documents in the case file are dated after December 2003.
51. The parties submitted numerous documents concerning the investigation into the disappearance. The main documents of relevance are as follows:
52. The Government submitted the documents from the criminal investigation file into Yandiyev’s disappearance, comprised of over 2,000 pages. The main documents can be summarised as follows:
53. On 14 July 2001 a prosecutor from the Chechnya Prosecutor’s Office opened a criminal investigation into the abduction of Khadzhi-Murat Yandiyev, born in 1975, by unidentified persons in February 2000 in Alkhan-Kala. The decision referred to Article 126 part 2 of the Criminal Code (kidnapping). On the same date the criminal case was forwarded to the Grozny District Prosecutor’s Office for investigation, which accepted it on 19 July 2001. The case file was assigned no. 19112. In May 2004 the investigation was transferred to the military prosecutor of the UGA, where it was assigned case file no. 34/00/0020-04D.
54. The file contains the applicant’s letter of 30 May 2001 to the General Prosecutor, in which she stated the known facts concerning her son’s disappearance. She stated that, having seen her son on a news broadcast on 2 February 2000, she immediately set out for Alkhan-Kala. She reached there only on 6 February 2000, and was told that her son, who was listed among 105 detainees, had been transferred to Tolstoy-Yurt. On 8 February 2000 she arrived at Tolstoy-Yurt, where she was told that at 3 p.m. that day the detainees had been transferred to the Chernokozovo pre-trial detention centre. At Chernokozovo she was told that her son was not in their custody and that his name was not on their lists. The applicant had no further news of her son, and requested the prosecutor’s office to establish his whereabouts and to inform her if he had been charged with any crimes.
55. On 20 January 2002 the applicant was questioned in her home town. Her brief statement repeated the circumstances of her son’s disappearance and reiterated that she had had no news of him. On the same day the applicant was granted victim status in the proceedings.
56. Later the applicant was again questioned on several occasions. Her husband, Khadzhi-Murat Yandiyev’s father, was also questioned and confirmed her previous statements.
57. The investigators questioned the witnesses to the encounter between General Baranov and Khadzhi-Murat Yandiyev, including servicemen and journalists.
58. In December 2003 and January 2004 the investigation questioned several officers from special police forces (OMON) from the Novgorod region. They submitted, almost word for word, that from November 1999 to March 2000 they had been on mission in Alkhan-Kala and that in early February 2000 an operation had been carried out in the village. Their detachment was being held in reserve, but they were aware that a large group of fighters had entered the village, and several thousand federal troops, with support from aviation and armoured vehicles, had captured a large number of fighters – possibly about 700 persons. The operation was under the command of General-Major Nedobitko, the commander of a division of the interior troops, and was visited by Major-General Vladimir Shamanov, the head of the Western Zone Alignment. The Federal Security Service (FSB) and members of the military intelligence dealt with the detainees.
59. Several army servicemen stated in September and October 2005 that, on 2 February 2000, a group of senior officers headed by Colonel-General Baranov, who at the time had headed the UGA staff, had arrived in Alkhan-Kala by helicopter. They came because a large group of fighters, including casualties, had been detained. They were accompanied by journalists, including TV cameramen. They first visited the Alkhan-Kala hospital, where a large group of wounded fighters was found in the cellar. The cellar was dirty, the wounded were lying on the floor and there was a strong smell of decay. The soldiers deposited a large number of arms and ammunition collected from the fighters near the hospital. They then went to Alkhan-Kala’s central square to see a convoy of three or four buses containing fighters, some of them wounded. The buses were blocked on all sides by army vehicles and guarded by servicemen, who had already disarmed the men inside. Local residents had gathered to watch behind the security cordon. When the senior officers approached the buses they noticed one of the fighters near the first bus, who had been talking to a reporter. He was wearing a new army camouflage jacket and behaved in an aggressive and provocative manner, trying to instigate the detainees and local residents to disobey. The witnesses suggested that he had been under the influence of narcotics. Some witnesses also noted that he was wounded in the hip. Colonel-General Baranov talked to the detainee and calmed him down using harsh words, saying that he should be shot. He also found identity documents, a compass and a map in his pocket. The soldiers then took the detainee away from the bus containing the other fighters and placed him next to a metal fence about five metres away, where he remained calmly for an hour or an hour and a half. Colonel-General Baranov and other army officers left Alkhan-Kala after about an hour and a half, and the detained fighters were left in the charge of the GUIN servicemen. The witnesses stressed that Baranov’s words had not been regarded as an order, that Yandiyev had remained near the bus for a long time after the conversation and that, in any event, there had been far too many people around to issue or to carry out such an order. They also specified that most of the servicemen appearing in the videotape belonged to the Ministry of the Interior (OMON) or Ministry of Justice (GUIN) troops, and thus were not subordinate to a Colonel-General in the army. They denied that summary executions had taken place.
60. In May 2004 the investigation questioned General-Major Nedobitko who had headed the operation in Alkhan-Kala. He stated that the operation had been carried out by a joint group of the army, internal troops, police units from Chechnya and other regions and GUIN troops from the Ministry of Justice. Work with the detainees came within the competence of the GUIN units. He denied that the servicemen had committed summary executions.
61. Journalists and cameramen from NTV, RTR and the army’s press service stated that Yandiyev had told the reporters that he had been in charge of a small group of fighters. During the encounter with General Baranov he had behaved in a slowed-down manner, as if under the influence of narcotics. They also testified that Yandiyev had behaved aggressively and thus provoked General Baranov’s remarks. One reporter testified that after the conversation depicted in the videotape Yandiyev had been taken to a fence, where he remained for about 10 minutes, after which servicemen put him into an armoured personnel carrier (APC) and drove away. Other reporters stated that he remained by the fence for about an hour or more, until the group headed by Colonel-General Baranov had left.
62. In November 2005 the investigation questioned Ryan Chilcote, the CNN correspondent who had been at the scene on 2 February 2000. He stated that he had witnessed the dialogue between the wounded fighter, later identified as Yandiyev, and a high-ranking military officer, later identified as Colonel-General Baranov. He confirmed that although his Russian was weak, he could grasp the meaning of the conversation and had understood that the officer had questioned the fighter about his army jacket and later said that he should be “finished off”. He testified that he saw Yandiyev taken away by soldiers to an APC.
63. The investigation questioned Colonel-General Alexander Baranov as a witness on two occasions – in June 2004 and in September 2005. On both occasions he confirmed that he had a conversation with a young rebel fighter (“boyevik”), later identified as Yandiyev, who had been standing outside the bus with other fighters and who had been creating a disturbance by his statements. The witness stated that he had concluded from the fighter’s inadequate reaction that Yandiyev had been intoxicated, but as there was no smell of alcohol, he thought he might be under the influence of narcotics. The officer said that his harsh reaction had been caused by the detainee’s dangerous conduct, which could have incited other fighters and the villagers to disobey. In his first witness statement Mr Baranov claimed that the video footage had been altered to omit the fighter’s provocative statements. He stressed that the servicemen surrounding him were not his subordinates and thus could not have taken orders from him. In any event, nobody regarded his remarks as an order and Yandiyev was simply taken away from the bus and stood by the fence for a long time afterwards. The GUIN servicemen had dealt with the detainees and Mr Baranov had had no involvement in this.
64. A number of expert reports were carried out in the case.
65. In October 2004 experts from the Criminological Institute of the Federal Security Service (Институт криминалистики ФСБ) concluded that the videotape did not contain any signs of altering or editing of image or sound and that the voice which had given the order to execute Yandiyev was that of Mr Baranov.
66. In October 2005 a professor of linguistics at Moscow State Pedagogical University concluded that, although Colonel-General Baranov had used obscene words and expressions, these were not addressed directly at Yandiyev or anyone in particular and could not therefore be regarded as an insult.
67. In October 2005 a comprehensive psychological and psychiatric report carried out by two senior medical experts concluded that, judging by the video extract and other materials, the behaviour of both Colonel-General Baranov and Khadzhi-Murat Yandiyev on 2 February 2000 had been adequate to the situation and that neither had displayed any signs of weakening of mental performance.
68. In November 2005 an expert commission made up of three professors from military academies concluded that the extract in the videotape did not contain a valid order given within the chain of command due to its contents and improper form. In particular, the experts’ report recalled that orders had to comply with the Constitution and other legal acts and that they could only deal with matters which were relevant to the work of the military and were within the superior’s competence. Furthermore, orders could only be issued by a superior to an identified person under his command; they were to be given in a clear and unambiguous manner. None of these conditions had been met and therefore the report concluded that neither the Colonel-General nor any of the servicemen present at the scene could have regarded his words as an order.
69. The investigation collected a large amount of information about the persons detained on 2 February 2000 in Alkhan-Kala. It identified and questioned the servicemen who had participated in the operation and escorted the detainees to the detention centre, and also the drivers of the buses and other detainees.
70. Musa G., a resident of Alkhan-Kala, was questioned in June 2004 and October 2005. He stated that on 2 February 2000 he had tried to leave the village with his family in a PAZ bus. He was stopped by a group of armed men who ordered him to remove his belongings and to take the bus to the Alkhan-Kala hospital. At the hospital two other PAZ buses, also driven by villagers, were waiting. The armed men took wounded individuals out of the hospital and loaded them onto the three buses; the drivers were initially instructed to travel to Urus-Martan. However, they were not permitted to pass through a military roadblock at the exit of the village and returned to Alkhan-Kala. They were then instructed to go to Tolstoy-Yurt, where, as the witness understood it, the wounded were removed from the buses by servicemen from the Ministry of Justice. The witness identified Khadzhi-Murat Yandiyev from photographs and stated that he had seen that individual being placed in an APC in Alkhan-Kala and subsequently transferred to another APC at the military roadblock at the exit from the village. The witness also stated that he had seen how the servicemen searched the man and found a black flag with Arabic inscriptions. He did not see any ill-treatment of the man or of other detainees. He had not seen the man later identified as Yandiyev prior to 2 February 2000, not did he see him afterwards.
71. In May 2004 B. (see § 30 above) testified that he had known Yandiyev since their childhood in Grozny. In December 1999 and January 2000 he met him in Grozny on several occasions. At that time Yandiyev was wearing his hair long, had a beard and wore an army camouflage jacket, but he was not armed. At the end of January 2000 the witness left Grozny through a “safe corridor” towards Alkhan-Kala. En route the column was shelled and the witness was wounded in the right arm. In Alkhan-Kala he was admitted to hospital, where he again met Khadzhi-Murat Yandiyev, who had been wounded in the hip. On the morning of 2 February 2000 three buses were organised to take the wounded to the Urus-Martan hospital, but the convoy was stopped at a roadblock by the military and returned to Alkhan-Kala. There the buses were surrounded by servicemen and military vehicles and the men were taken out of the buses and searched. B. was placed by a metal fence with his back to the buses. He heard Yandiyev’s voice behind him and recalled that Yandiyev talked to some senior officer who ended the conversation by an order to “shoot” Yandiyev. The witness then saw Yandiyev being taken away. He and the other detainees were first taken to a “filtration point” in Tolstoy-Yurt, from where they were transferred to the Chernokozovo pre-trial detention centre about five days later. After that the witness was detained in two other pre-trial detention centres and was released in July 2000. He had not seen Khadzhi-Murat Yandiyev after 2 February 2000 and had no news of him.
72. The investigation obtained documents from the criminal investigation file opened in respect of B. The file contained a police report about his detention in Alkhan-Kala on 2 February 2000 on suspicion of participation in an illegal armed group. On 4 February 2000 B. was questioned in Tolstoy-Yurt and denied the charges. On the same day he was charged with participation in an illegal armed group and his detention was authorised by a prosecutor. In July 2000 the charges were dropped and B. was released under an amnesty granted to persons charged with participation in illegal armed groups in the Northern Caucasus who had not committed any serious crimes.
73. In December 2005 the investigation questioned two other men who had been detained in February 2000 in Alkhan-Kala and taken to Tolstoy-Yurt. One of them identified Khadzhi-Murat Yandiyev from a photograph and stated that he had seen that individual being taken out of a bus in Alkhan-Kala by servicemen.
74. In November 2005 the investigation questioned several servicemen from the Ministry of Justice, from various regions of Russia, who had been deployed in Alkhan-Kala in February 2000. They stated that although their units had not been involved in the transportation of the three buses, the detainees had been transported on that day to a “filtration point” in the village of Tolstoy-Yurt. They also stated that those detainees who had been identified as “field commanders” or others who were believed to be able to provide valuable information were taken away by officers from the FSB and military intelligence (Главное разведывательное управление, ГРУ Министерства обороны РФ) and were not transported to the filtration points with the other detainees. They also stated that a system of detainee records had been maintained and that individual minutes of detention had been drawn up in respect of each of the detained persons. They estimated that on 2 February 2000 between 100 and 150 persons had been detained on suspicion of participation in illegal armed groups.
75. The Government also submitted to the Court about 700 pages of documents from other criminal investigation files opened in relation to 62 persons detained in early February 2000 in and around Alkhan-Kala. Each of the detainees was questioned on 4 February 2000 in Tolstoy-Yurt, presented with charges and sent to various pre-trial detention centres. A detention order was issued in respect of each detainee, on suspicion of participation in illegal armed groups, by a prosecutor. It appears that most of the detainees were later released under an amnesty act. No such documents exist with reference to Khadzhi-Murat Yandiyev.
76. The investigation tried to obtain information about Yandiyev’s whereabouts from various sources. A number of law-enforcement agencies and detention centres in Chechnya, the Northern Caucasus and further afield in the Russian Federation, including pre-trial detention centre no. 20/2 in Chernokozovo, denied that he had ever been arrested or detained by them.
77. Their family’s neighbours in Grozny stated that they had not seen the Yandiyevs after they left Grozny in 1994. One neighbour, Ibragim D., questioned in October 2004, testified that in spring 2003 he had noticed a man resembling Khadzhi-Murat Yandiyev in a market in Grozny. The witness did not know Yandiyev very well and did not approach the man in the market or talk to him.
78. Also in October 2004 the investigation questioned a local resident in Alkhan-Kala who stated that in February 2000 he had witnessed Yandiyev’s arrest. He stated that in August 2000 he had noticed a man resembling the detainee in a shop in Alkhan-Kala. The witness did not know Yandiyev personally and did not know him by name.
79. The investigators questioned a number of Alkhan-Kala residents, including a policeman and the head of the local administration. In similarly worded statements they stated that in early February 2000 a large group of fighters headed by the field commander Arbi Barayev had entered the village. The village had been shelled and large detachments of the federal forces had then entered the village in APCs. None of the villagers questioned had ever heard of Khadzhi-Murat Yandiyev, but they stated that several young men from Alkhan-Kala had been detained by the federal forces on that day and later released.
80. Several of Yandiyev’s classmates from the Moscow Sociology University stated that they had not seen him after the summer of 1999. They described him as a devout young man who had observed Islamic customs and studied religious literature. The investigation obtained a copy of the order by the Rector of the University by which the student Yandiyev had been discharged as of 15 November 1999 for systematic absence from classes.
81. Yandiyev’s relatives with whom he had lived in Moscow from 1993 to 1999 testified that he had left for Chechnya in the summer of 1999 and that they had had no news from him since.
82. The investigation explored the version that the convoy which had transported Yandiyev from Alkhan-Kala could have been ambushed and that he could have escaped or been killed in the skirmish. It requested information from a number of sources about recorded ambushes of convoys in February 2000 and about escaped detainees, but received no examples of such incidents. None of the servicemen questioned were aware of such incidents. The investigation also explored whether Yandiyev could have used a false identity on arrival at the detention centre in Chernokozovo, but the guards of the facility, questioned in December 2005, testified that all the detainees who arrived there had been in possession of identity documents or police reports confirming their identities.
83. In December 2005 the central information bureau of the Russian railroads submitted data to the investigation about all rail road tickets purchased under the name of Yandiyev from February 1998 to October 2005 (over 450 entries).
84. On 21 January 2006 the investigation ordered a molecular-genetic analysis of the applicant’s blood sample, in order to verify if her relationship could be traced through samples of any persons killed in action while resisting the federal authorities.
85. On 6 October 2004 the military prosecutor’s office in charge of investigating Yandiyev’s kidnapping opened a criminal investigation into Khadzhi-Murat Yandiyev’s involvement in an illegal armed group, a crime under Article 208 part 2 of the Criminal Code. On the same day Yandiyev was charged in absentia with the above crime and his name was included on the federal search list. This investigation was assigned case file number 34/00/0040-04.
86. On 17 February 2005 the military prosecutor responsible for the case adjourned the investigation into Yandiyev’s kidnapping on the ground of failure to identify the culprits. The relevant document summarised the findings by that date. It referred, in particular, to the testimonies of four policemen from the Saratov Region who had been on mission in Chechnya in February 2000. Each of them stated that in mid-February 2000 five male bodies, dressed in camouflage outfits and civilian clothes, had been discovered on the outskirts of Alkhan-Kala, near the cemetery. The residents refused to bury them because they were not from Alkhan-Kala. The bodies were delivered to the Grozny District VOVD, where they were filmed and photographed by officers from the Grozny District Prosecutor’s Office. The bodies were then taken by a car belonging to the Grozny district military command to Mozdok, North Ossetia.
87. The document of 17 February 2005 cited a report by an officer of the Grozny VOVD to the effect that the registration log of the Mozdok forensic centre contained no information about the delivery of unidentified bodies in the first half of 2000.
88. The document further referred to information from the Grozny District Prosecutor’s Office that no criminal investigation had ever been conducted by that office into the discovery of five male bodies at the Alkhan-Kala cemetery in February 2000.
89. The case file reviewed by the Court does not contain these documents.
90. At different stages of the proceedings several orders were issued by the supervising prosecutors, enumerating the steps to be taken by the investigators. On 3 December 2001 a prosecutor from the Chechen Prosecutor’s Office ordered that all the circumstances of Yandiyev’s disappearance were to be fully investigated, those who had taken part in a special operation in Alkhan-Kala in early February 2000 were to identified, and that the applicant was to be found and granted victim status in the proceedings.
91. On 6 December 2003 a prosecutor from the Grozny District Prosecutor’Khadzhi-Murat Yandiyev and about the details of their search for him. It was also necessary to find a copy of the videotape containing Yandiyev’s questioning. The document also ordered that steps be taken to identify the detachments of federal forces that could have been involved in the special operation in Alkhan-Kala in early February 2000 and to establish what had happened to the detained persons.
92. On 1 March 2004 the Deputy Prosecutor of Chechnya ordered the investigators to establish the whereabouts of B. and I. and to question them about the circumstances of Yandiyev’s detention. He also ordered that investigative measures which could help to clarify Yandiyev’s personality, and other necessary measures, be pursued.
93. Between July 2001 and February 2006 the investigation was adjourned and reopened six times. The most recent order by the Deputy General Prosecutor, dated 10 February 2006, extended the investigation until 16 April 2006. It summarised the findings until that date and ordered the investigation to proceed with identification and questioning of other detained persons and the GUIN servicemen who had participated in the detention of suspects on the date in question, and to check the version that Yandiyev could have escaped from detention or used a false identity etc.
94. The Government submitted a copy of a TV report by the NTV company dated 2 February 2000. It contains a short interview with Khadzhi-Murat Yandiyev, who is shown standing by a bus. He confirms that he walked to Alkhan-Kala from Grozny and that he was with a group of about 15 persons. The footage then shows Yandiyev standing alone by a metal fence and a group of servicemen unfolding a black banner with an Arabic inscription.
95. The applicant submitted an undated copy of an interview with the CNN producer Ryan Chilcote for an on-line magazine, in which he spoke of how Yandiyev’s questioning was filmed by his crew:
“The Chechen War, especially the second campaign, was my first experience with real warfare. I was able to get close to the action and see a lot of things on both sides of the conflict.
I was travelling with the Russians when they took Alkhan-Kala, a village near the Chechen capital of Grozny. They captured a bunch of Chechen rebel fighters; one of them, a young guy in his 20s, was wearing a Russian uniform he’d obviously taken from a soldier he’d killed. The second-in-command in the Russian military walked up to him and said, “What the hell are you doing in that Russian uniform?” The rebel fighter talked back to him, and they got into a heated debate. The general looked through the guy’s pockets and found his passport. He read all the information out loud. Then he said to two of his soldiers, “Get rid of this guy. Kill him right here.” The soldiers didn’t know what to do. They knew our cameras were rolling. So they just nodded their heads but didn’t do anything.
When the general came through again, he got upset. “I told you to get rid of this guy!” The soldiers dragged the man to an armoured personnel carrier and drove him off. A Russian colonel came up to me and said, “Hey, Ryan, want to shoot an execution?” It was one of those moments when you don’t know what to do as a journalist. On the one hand, I’d be documenting a war crime, the execution of an unarmed man. On the other, it went against my instincts. Just then, the tank I’d come in on began to leave, and I had to jump aboard. A few months later, we went to the rebel fighter’s address, which the general had read aloud on camera, to find out what had happened to him. We showed his mother the tape and asked if she’d heard from him. She hadn’t. It was really difficult—she totally broke down. It’s quite probable he was executed.”
96. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
97. Article 161 of the new CCP establishes the rule of impermissibility of disclosure of the data of the preliminary investigation. Under part 3 of the said Article, the information from the investigation file may be divulged with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 2-1
5-1
NON_VIOLATED_ARTICLES: 3
34
38


ITEMID: 001-22734
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ÖZCAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Ali Özcan, is a Turkish national, who was born in 1959 and lives in Istanbul. He was represented before the Court by Mr Muharrem Turan, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
Before his discharge from the army, the applicant was serving as a specialist doctor at the GATA Military Hospital in Istanbul.
Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicant and his family were denied access to the military premises on the ground that a photo showing his wife wearing Islamic scarf was not acceptable for the military and social security identity cards. The applicant’s close relatives wearing Islamic scarves were also not allowed into the military buildings.
On 22 April 1996 the applicant was appointed to the İzmir Military Hospital as the chief of the laboratory department.
On 28 May 1996 the applicant filed an action with the Supreme Military Administrative Court (Yüksek Askeri İdare Mahkemesi). He requested the court to annul his appointment to the İzmir Military Hospital.
On 18 June 1996 the Supreme Military Administrative Court decided to annul the applicant’s appointment as an interim measure (yürütmeyi durudurma kararı). Within two months from this decision, the applicant was again appointed to the İzmir Military Hospital.
The applicant appealed. On 23 December 1997 the Supreme Military Administrative Court again decided to annul the applicant’s appointment as an interim measure.
In May 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50(c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant was a member of the Fethullah Gülen’s Nurcu sect. He was involved in disseminating the ideology of the sect and made hatred speeches. He established contacts with a certain A.A. who was discharged from the army. He attended meetings organised by persons who adopted the same extreme religious ideology. He acted discriminatorily in favour of soldiers who adopted the same ideology.
The applicant had an antisocial character and his wife carried Islamic scarf. He refused to participate in social gatherings where alcohol was served. He avoided watching TV and did not allow his family members to do so.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-127116
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF DÖMÖTÖR v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Nebojša Vučinić;Peer Lorenzen
TEXT: 4. The applicant was born in 1950 and lives in Budapest.
5. On 22 November 2002 Ms G.D. and two others brought an action against the applicant and ten further respondents before the Budapest IV/XV District Court, seeking title to, and termination of, co-ownership. Several respondents lived abroad, causing certain difficulties in summoning them.
6. The District Court held six hearings between 3 June 2003 and 28 January 2005.
7. On 27 July 2005 the proceedings were stayed on account of the death of respondent A.G. The applicant, on whom this was legally incumbent, invited the successors to join the proceedings on 22 January 2007.
8. Between 18 October 2007 and 22 May 2009 five further hearings were held. A partial judgment was delivered on 4 June 2009.
9. On 23 November 2010 the Budapest Regional Court held a hearing and, by its order of 30 November 2010, quashed the partial judgment and remitted the case to the first instance.
10. In the resumed proceedings, four hearings were held and a partial judgment was delivered on 25 November 2011.
11. The proceedings continued on appeal before the Budapest Regional Court, acting as a second-instance court. This court adopted a final partial decision on 7 May 2013.
12. As to the remainder, it appears from the documents in the case file that the proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1