ITEMID: 001-68379
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ISAYEVA, YUSUPOVA AND BAZAYEVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violations of Art. 2;No separate issue under Art. 3;Violation of P1-1;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial awardsCosts and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The first applicant was born in 1953, the second applicant was born in 1955 and the third applicant was born in 1945. The first two applicants are residents of Chechnya. The third applicant currently lives in Germany.
11. The facts surrounding the bombing of the civilian convoy and the ensuing investigation were partially disputed. In view of this fact, the Court requested the Government to produce copies of the entire investigation files opened in relation to the bombing. The Court also asked the applicants to produce additional documentary evidence in support of their allegations.
12. The submissions of the parties on the facts concerning the circumstances of the attack on the convoy and the ensuing investigation are set out in Sections 1 and 2 below. A description of the materials submitted to the Court is contained in Part B.
13. The first and third applicant lived in the city of Grozny, and the second applicant in Staraya Sunzha, which is a suburb of Grozny. In the autumn of 1999 hostilities began in Chechnya between the federal military forces and Chechen fighters. The city and its suburbs were the targets of wide-scale attacks by the military. The applicants allege that at some date after 25 October 1999 they learned from radio and television announcements, including on the all-Russian channels RTR and ORT, that on 29 October 1999 a “humanitarian corridor” would be arranged for civilians to escape from the fighting in Grozny.
14. Because of the attacks the third applicant and her family left Grozny on 26 October 1999 and went to stay with relatives in the village of Gekhi. The first applicant and her relatives tried to cross the border with Ingushetia on 28 October, but were told by the military at a roadblock that the corridor for civilians would be open the next day.
15. Early in the morning of 29 October 1999 the first and the second applicants and their relatives – about a dozen persons in a RAF mini-van – left Grozny along the road towards Nazran, also known as the Rostov – Baku highway, or the “Kavkaz” highway. Around 8 a.m. they reached the military roadblock “Kavkaz-1” on the administrative border between Chechnya and Ingushetia. There was already a line of cars about one kilometre long. The first applicant and some relatives walked to the roadblock and the military informed them that they were expecting an order from their superiors to open the road, and that the order should arrive at about 9 a.m. The weather was bad at that time, it was cloudy and raining.
16. The family of the third applicant left the village of Gekhi at about 5 a.m. on 29 October 1999 in three cars, a Zhiguli, a Niva and a blue GAZ-53, and travelled along the road to Nazran. When they reached the queue in front of the roadblock, they were assigned numbers 384 and 385 in the line. The line of cars grew very quickly, and there were three or four times as many cars behind them as in front. The third applicant estimated that there were over 1,000 cars in the column, including trucks, vans and buses.
17. People started asking the servicemen about the opening of the border. At first they were told that it should be opened after 9 a.m., and that the soldiers were expecting an order to that effect. The first applicant estimated that about 11 a.m. a senior officer came out and told the people that the “corridor” would not be opened that day and that he had no information as to when it would be opened. According to the applicants, he also ordered everyone to clear the space in front of the roadblock and to return to Grozny. The column started to turn around, but progress was very slow because there were several lanes of cars and little space.
18. The applicants turned around and were slowly moving with the convoy away from the roadblock. According to the second applicant, there was a large number of cars, and the column stretched over about 12 kilometres. Sometime later the clouds cleared and the applicants saw two planes in the sky. The planes turned over the column and fired missiles.
19. The driver of the first and the second applicants' minivan stopped and the passengers started to get out. The first applicant's children, Ilona (also spelled Elona) Isayeva (born in 1983) and Said-Magomed Isayev (born in 1990) and her sister-in-law Asma Magomedova (born in 1954) were the first to get out. The first applicant saw them thrown to the side of the road by a blast. She recalled that the planes circled around the convoy and dropped bombs several times. The first applicant's right arm was hit by a fragment of a shell and she fainted. When she regained consciousness and ran to her relatives, all three were dead from shell-wounds. Another woman, Kisa Asiyeva, who was in the minivan, was also killed. After the attacks were over, the first applicant was taken by car with other wounded person to a hospital in Atagi. The doctors treated the wounds and sent her home, because there was no room in the hospital. One week later the first applicant travelled to Nazran, Ingushetia, where she had an operation on her right arm. She needs another operation on her arm.
20. The second applicant recalls that, as their mini-van was nearing Shaami-Yurt, they saw two planes in the sky launching rockets. In a few minutes a rocket hit a car immediately in front of theirs. The second applicant thought the driver was hit, because the car turned around abruptly. When they saw this, everyone started to jump out of the minivan, and then the second applicant was thrown over by another blast. She fainted, and when she regained consciousness, she realised that two of the first applicant's children, Ilona Isayeva and Said-Magomed Isayev, were dead. The second applicant believes that there were eight explosions after the first one. She was dragged to the side of the road by others, but later she returned to the road to help the first applicant to collect the bodies. Said-Magomed had a wound to the abdomen and Ilona's head had been torn away, and one leg was crushed. The second applicant was wounded by shells in the neck, arm and hip. Their minivan was not hit, and they used it to leave the scene afterwards. On 7 November 1999 she was taken to Ingushetia by ambulance for further treatment.
21. The third applicant was in a Zhiguli car with her husband and his friend. Her son and two of her husband's nephews, one with his wife, were in the GAZ car behind them. She recalled that the rain stopped and the sky cleared when they passed the village of Khambirzi and were nearing the village of Shaami-Yurt. Then there was a powerful blast, and their car was thrown to the left side of the road. All its windows were broken. The third applicant realised that there had been a blast behind, and she ran over to see if her son and his cousins were alive. She believes that in the 50-60 metres she ran along the road to find her son's car, she saw several destroyed cars, vans and trucks and 40-50 dead bodies, disfigured and mutilated, some of them in vehicles, some thrown around by the blasts. She recalled a bus with the rear side totally destroyed and a Kamaz truck with human and cattle bodies inside.
22. The third applicant, her husband and their friend picked up some people who needed help. Their Zhiguli car had flat tyres, but they reached Shaami-Yurt, where they changed tyres. They then travelled back to Gekhi where their relatives lived. In the meantime, the applicant's son picked up the wounded and took them to a hospital in Achkhoy-Martan, the district centre. He later returned to the place of the bombing, as he was not sure if the third applicant had been able to leave it. The planes were still flying over the remains of the convoy and struck again. Their GAZ car with all the family possessions was destroyed by a direct hit, as well as their Niva car. The applicant's son and his cousins ran on foot through neighbouring villages, and in the evening reached Gekhi. They later fled to Ingushetia.
23. The applicants are not certain about the exact timing of the attack, as they were in a state of shock. They accepted the timing of the attack given by the Government. They submitted transcripts to the Court of interviews with other witnesses of the attack. In their testimonies these witnesses described the bombing of a convoy of refugees from Grozny near the village of Shaami-Yurt on 29 October 1999, confirming that after the strikes they saw numerous burned and damaged cars, including at least one Kamaz truck filled with civilians and at least one bus. They also confirmed that there were dozens of victims, killed and wounded. Several testimonies concerned the deaths of the first applicant's relatives (see Part B below for a description of the testimonies).
24. The applicants submitted that they saw only civilians in the convoy, and that they did not see anyone from the convoy attempting to attack the planes.
25. According to the Government, on 29 October 1999 the representative of the Chechen Committee of the Red Cross decided to evacuate the office to Ingushetia. As he did not co-ordinate the move with the military authorities, when he and a convoy of vehicles reached the check-point “Kavkaz-1” on the administrative border with Ingushetia, they had to turn back as the check-point was closed.
26. The Red Cross could have used the opportunity to inform the security and military authorities in advance about their travel, which would have made it possible for them to ensure a safe evacuation route. The checkpoint was closed because it could not supervise the passage of a “fair quantity of refugees”. On the way back to Grozny the convoy was joined by a Kamaz truck carrying rebel Chechen fighters.
27. At that time the military authorities were planning and conducting counter-terrorist operations in the Achkhoy-Martan district, aimed at preventing supplies and personnel of the rebel fighters being brought to Grozny by heavy transport, as well as identification and suppression of any other persons, supporting networks or command centres offering armed resistance to the authorities.
28. As part of that mission, on 29 October 1999 two military SU-25 aeroplanes, flown by military pilots identified for security reasons as “Ivanov” and “Petrov”, were on a mission to conduct reconnaissance and to suppress such movements. At around 2 p.m., when flying over the village of Shaami-Yurt, they saw vehicles moving towards Grozny. The planes were attacked from a Kamaz truck with large-calibre infantry fire-arms. The pilots reported the attack to an air-traffic controller identified as “Sidorov” at the command headquarters, and were granted permission to use combat weapons. At about 2.15 p.m. the planes fired four rockets each from a height of about 800 metres at the Kamaz, which they estimated carried at least 20 fighters, and destroyed it. They then located a second Kamaz truck on the same road on an intersection with a road to the village of Kulary, from which they were also attacked. The pilots retorted by launching two missiles each at the target. They then returned to their deployment aerodrome. In their submissions on the admissibility of the applications, the Government indicated the timing of the attack as 2.05 – 2.20 p.m. and 3.30 – 3.35 p.m.
29. The Government conceded that apart from the two Kamaz trucks targeted, other vehicles were destroyed or damaged. From the observations on the merits submitted by the Government, it appears that 14 civilian vehicles were damaged. This resulted in 16 civilians being killed and 11 wounded. Among the killed were two employees of the local Red Cross Committee and the first applicant's three relatives. Among the wounded were the first and the second applicant. The Government did not submit any information about the number or names of wounded or killed fighters in the Kamaz trucks.
30. At the same time, the Government submitted that the pilots had not foreseen and could not have foreseen the harm to the civilian vehicles, which appeared on the road only after the rockets had been fired. In the Government's view, the fighters were deliberately using the convoy, which had been moving without authorisation, as a human shield. The radius of damage of the rockets is 600 – 800 metres, which explained the casualties.
31. In connection with the incident, the International Committee of the Red Cross (ICRC) in Geneva issued a press release on 30 October 1999. It stated that, according to the local branch of the Red Cross, on 29 October 1999 a convoy of vehicles, among them five vehicles of the Chechen Committee of the Red Cross, had tried to cross the border into Ingushetia but had been turned back at the check-point and were returning to Grozny. All five cars were clearly marked with the Red Cross sign, and the truck displayed a red cross on its roof. They were attacked by missiles from aeroplanes, as a result of which two Red Cross workers were killed and a third was wounded. A number of other vehicles were also hit, resulting in some 25 civilian deaths and over 70 injured.
32. The Russian military air force issued a press release which stated that on 29 October 1999 at 2 p.m. a column of trucks with fighters and ammunition was moving along the road from Nazran towards Grozny. A SU-25 plane flying over the convoy was shot at with automatic weapons and called a second plane for support. The planes hit the convoy with missiles at an interval of five minutes, as a result of which two trucks full of fighters were destroyed. The press service denied that civilians could have been hit by the air strikes.
33. On 2 December 1999 the Committee to Protect Journalists (CPJ), New York, stated that on 29 October 1999 two TV journalists, one working for a Moscow-based company, and the other for a local station in Grozny, were killed during a military attack on a convoy of refugees fleeing Grozny near the village of Shaami-Yurt. According to the statement, the two journalists were covering the movement of a convoy, and when the first rocket hit a bus with refugees, they went out to film the scene. As another rocket hit a nearby vehicle, both were fatally injured.
34. The attack on the convoy was reported in the Russian and international media.
35. On 20 December 1999, at the first applicant's request, the Nazran District Court of Ingushetia certified the deaths of Ilona Isayeva, born on 29 May 1983, and Said-Magomed Isayev, born on 30 October 1990, “due to shell-wounds received as a result of bombing of a convoy of refugees from Grozny by fighter planes of the Russian military air force on the “Kavkaz” road between the villages of Shaami-Yurt and Achkhoy-Martan on 29 October 1999, around 12 noon”.
36. In September 2000 the Ingushetia Republican Prosecutor introduced a request for supervisory review to the Presidium of the Supreme Court of Ingushetia, by which he sought to quash the decision of 20 December 1999. On 17 November 2000 the request was granted, and the decision was quashed. The case was remitted to the District Court. The Government submitted that the first applicant failed to appear at the District Court for a new consideration and that her place of residence was unknown. On 18 March 2002 the Nazran District Court adjourned the case due to the first applicant's failure to appear on summonses.
37. On 3 May 2000 the military prosecutor of the Northern Caucasus military circuit (военная прокуратура Северо- Кавказcкого военного округа), military unit no. 20102, located in Khankala, the Russian federal military headquarters in Chechnya, opened a criminal investigation, no. 14/33/0205-00, concerning the aerial bombardment of a refugee convoy near the village of Shaami-Yurt on 29 October 1999.
38. The investigation confirmed the fact of the bombardment, the deaths of the first applicant's relatives and the wounding of the second applicant. It also identified several witnesses and relatives of other victims of the bombardments, who were questioned. Some of them were granted victim status and recognised as civil plaintiffs. The investigation identified a number of individuals who had died as a result of the strikes and who were wounded. It also identified two pilots who had fired at the convoy and the control tower operator who had given permission to use combat weapons. The pilots, who were questioned as witnesses, stated that their targets had been two solitary Kamaz trucks with armed men, who fired at the planes. In response, the pilots used eight S-24 air-to-ground missiles against the first truck and four such missiles against the second truck. No one was charged with having committed a crime (see Part B below for a description of the documents in the investigation file).
39. On 7 September 2001 the criminal investigation was closed due to lack of corpus delicti in the acts of the pilots. This decision was appealed to the military court by a victim of the attack, Ms Burdynyuk. Following her complaint of 6 June 2002, the Bataysk Garrison Military Court quashed the investigator's decision on 14 March 2003 and remitted the case for a new investigation to the military prosecutor of the Northern Caucasus military circuit (see § 88 below).
40. After the hearing of 14 October 2004 the Government submitted a document of 5 May 2004 issued by a military prosecutor of the Northern Caucasus military circuit. By this decision the criminal investigation was again closed due to the absence of corpus delicti in the acts of the pilots (see §§ 90-97 below).
41. The applicants stated in their submissions that they were not aware of any adequate steps taken by the authorities to conduct an efficient and meaningful investigation and to ensure their participation in it. The first applicant submitted that some time after her complaint to the Court had been communicated to the Russian Government, her elder brother, Aslanbek Vakhabov, was twice visited at his house in Chechnya by the military prosecutors, who were looking for her. After the second visit the prosecutors left a note for the first applicant, instructing her to appear at the Khankala military base for questioning. The first applicant failed to do so. She submitted that Khankala was the main military base of the federal forces in Chechnya, was not freely accessible to civilians and was heavily guarded and surrounded by numerous check-points. It would be very difficult and unsafe for her to attempt to get there on her own, and she believed that the prosecutors could have found her either in Ingushetia, where she was staying, or in Chechnya, where she travelled. The first applicant was also aware that prosecutors from the Chechen town of Achkhoy-Martan were once looking for her in Ingushetia, while she was in Grozny.
42. The second and third applicants were never called for questioning. They were not given any official information in relation to the incident. None of the applicants was officially informed that they had been granted the status of crime victims (потерпевшие), as provided by Article 53 of the Code of Criminal Procedure.
43. The parties submitted numerous documents concerning the investigation into the killings. The main documents of relevance are as follows:
44. The Government submitted a copy of the investigation file in the criminal case, divided into two volumes. No list of documents was provided, but it is apparent from the numbering of the pages that there were initially at least three volumes and that a certain part of the file is missing. According to the documents submitted, the investigation made some attempts to locate the first applicant and, to a lesser extent, the second applicant. Although some of their relatives were questioned and granted victim status (it is not clear whether they were informed of this), the investigators did not contact the first and the second applicant directly. It does not appear that the third applicant was ever sought. The documents contained in the case-file present a coherent and detailed account of the attack of which the applicants complain.
45. The most important documents contained in the file are as follows:
46. The Moscow Office of the International Committee of Red Cross (ICRC) addressed the Main Military Prosecutor's Office in Moscow in relation to the attack on the convoy on 29 October 1999. On 29 October 1999 the ICRC urgently informed the Ministry of Internal Affairs that, due to a rapid deterioration of the security situation in Grozny, the local personal of the ICRC and of the Chechen Committee of the Red Cross were being evacuated from Grozny by a convoy of five trucks and six passenger vehicles. The letter stated that the vehicles would not be marked by any emblem.
47. Later on 29 October 1999 the ICRC again urgently informed the Ministry of the Interior that the Red Cross personnel were unable to cross the border with Ingushetia. The road between Ingushetia and Grozny was under fire and one of the Red Cross trucks had been damaged.
48. On 16 November 1999, in reply to a request from the Main Military Prosecutor's Office of 9 November 1999, Mr Ruslan Isayev, chairman of the Chechen Committee of the Red Cross and Red Crescent, submitted his account of the attack. He submitted the following:
“I have been the Chairman of the Chechen Committee of the Red Cross since January 1995. We worked together with the ICRC, taking care of 15,000 elderly and disabled persons in Chechnya... From 1 October 1999 we had to close the food centres since electricity and gas had been cut off, but we continued to bake bread using diesel fuel and to distribute it to 12,000 elderly persons... Starting from 20 October 1999 Grozny came under heavy air bombardment, and on 27 October we stopped all programmes, because it was impossible not just to work, but to stay there. We started to prepare to evacuate, and I informed the ICRC Office in Nalchik [Kabardino-Balkaria] of this fact.
Because all public media were declaring that an exit route to Ingushetia would be opened for refugees on 29 October 1999, we decided to evacuate on 29 October 1999, together with the ICRC staff. In order to evacuate we needed special permission, and on 29 October we brought all our transport to the [rebel] commandatura, which issued a permit to travel. I went ahead of the convoy to check the road, and saw several craters from explosions on the road, so I personally ensured that we had flags with red crosses on the roofs of our three trucks.
Our cars travelled in a convoy, and at about 8.30 a.m. we were in a line of cars on the Rostov- Baku highway. The line extended for about 3 kilometres from the check-point [at the border with Ingushetia]. About 10 a.m. at the check-point, where about 3000 people were waiting and no one was let through, a general appeared ... and said that no one would be allowed to cross, because the check point was not prepared. He said that it would open five days later, that everyone should go back, and that he guaranteed that the road would not be attacked. Until about 11.30 a.m. we could not turn around, because of a line of cars about seven kilometres long behind us. At noon we started to move towards Grozny. I was heading the convoy in a Zhiguli car, the others were behind me. Other refugees followed our convoy, having seen our red cross symbols; they were also flying white flags.
About two kilometres before Shaami-Yurt I saw two military planes launching rockets. As cars were also approaching from opposite direction, I thought that they had been shooting at something by the side of the road. In order to verify, I accelerated and went ahead of the convoy. When I reached the bridge, I saw the road turning to the left and the planes bombing the road. When I reached the spot, two trucks were lying on the left side of the road, both on their sides, on the right side a Zhiguli car was burning after a direct hit and nearby a woman covered in blood was trying to take out of the car a man's beheaded body. I stopped to help, but at that moment passengers in my car whom I had picked up on the road to Grozny started to scream and pointed to the skies. I saw two military planes coming towards us. I got back into the car and drove forward. After about 100 metres the car jolted and the back windscreen was broken. The car slowed down because one of the back wheels had been punctured. After 600 metres I reached Shaami-Yurt, where I let the passengers out, changed the tyre and returned to the convoy. When I approached the bridge I saw a horrible site. In front, on the bridge, was our Mercedes truck. Its cabin was almost entirely gone. Other cars were behind it. I ran to the truck and saw that the bodies of two drivers, Aslanbek Barzayev and Ruslan Betelgeriyev, were torn apart. Then I started to look for the others. To the right under the road I found Ramzan Musliyev, who was wounded in the back. Then I found other colleagues who were assisting the wounded from a PAZ bus, which had taken a direct hit by a rocket; 12 people had been killed on the spot. We took the wounded and two cars with broken windows which could drive and went to the village of Khambirzi. I told the staff to unload the trucks and take away the dead after things had calmed down. In the meantime I drove the wounded to the village of Alkhan-Yurt. At 4 p.m. I returned to my colleagues in Khambirzi. They told me that the planes had returned and attacked the convoy twice more, and that they had descended to a very low height and shot at the cars with machine-guns.
To sum up, on 29 October 1999 between 12 and 4 p.m. on the bridge near the village of Shaami-Yurt, military planes attacked a civilian convoy containing refugees five times; consequently, dozens of cars were destroyed, about 25 persons were killed and about 75 were wounded. I believe that many victims were hurt because numerous refugees followed our convoy, having noticed the Red Cross sign.
I and my colleagues categorically deny that the planes were allegedly shot at from the convoy. Starting from the cross-roads with the road to Urus-Martan, not only we did not see any cars with an anti-aircraft gun, but we did not see not a single armed person. While in Chechnya we ourselves suffered from the [Chechen] fighters, who accused us on many occasions of working for the Russians, and our office and staff had been attacked, so we were very cautious. I cannot state that the pilots deliberately aimed at the Red Cross convoy, but they could not have failed to see our trucks with the crosses on the ill-fated bridge, and afterwards they were striking at the civilian convoy for four hours.”
49. To this statement were appended copies of the identity documents of the two drivers who had been killed, Aslanbek Barzayev and Ramzan Bitilgiriyev. There was also a travel permit for six vehicles, issued by an “independent Chechen authority” – the Aldy commandatura – on 29 October 1999.
50. Three other testimonies were collected from the Red Cross workers in April 2000. They confirmed Isayev's statements as regards the timing and the circumstances of the attack and the identity of the victims who had been Red Cross employees.
51. On 27 April 2000 a military prosecutor from military unit no. 20102 in Khankala issued a decision not to open a criminal investigation into the complaint by the Red Cross Committee. The decision said that a review of the complaint established that the Red Cross convoy was travelling on 29 October 1999 to Ingushetia, and that it could not cross the administrative border because the check-point had not been prepared. The convoy movements were not coordinated with the headquarters of the United Group Alignment (UGA). When returning to Grozny, the convoy, together with other vehicles, was attacked at the bridge near the village of Shaami-Yurt by “unidentified airborne devices”. The decision further referred to information from the headquarters of the UGA that, according to the operations record book, on 29 October 1999 the UGA aviation forces had not conducted flights in the vicinity of Shaami-Yurt. The investigator concluded that there was no proof that the servicemen from federal forces had been involved in the air bombardment of the Red Cross convoy and refused to open a criminal investigation because of the absence of a corpus delicti in the actions of servicemen of the armed forces.
52. On 3 May 2000 a prosecutor of the Military Prosecutor's Office for the Northern Caucasus in Rostov-on-Don quashed the decision of 27 April 2000 and ordered an investigation. On 10 May 2000 the military prosecutor of military unit no. 20102 accepted the case no. 14/33/0205-00 for investigation. On 28 June 2000 the case-file was transferred to another investigator within the same military unit.
53. After communication of the case by the Court to the Russian Government in June 2000, the Prosecutor's Office for the Northern Caucasus requested information about the case from the Chechnya Republican Prosecutor's Office. On 13 September 2000 the Achkhoy-Martan District Prosecutor's Office opened criminal investigation no. 26045 into the killing of the first applicant's three relatives and the wounding of the first and the second applicants. In November 2000 the criminal case was forwarded for investigation to military unit no. 20102. On 4 December 2000 a military prosecutor in the same military unit joined it with the investigation no. 14/33/0205-00.
54. It appears that at some point in 2001 the criminal case was transferred for further investigation to the North Caucasus Military Prosecutor's Office in Rostov-on-Don.
55. Among the victims of the attack were Nina and Boris Burdynyuk, residents of Grozny. The husband was killed in the attack, and the wife was wounded. On 6 December 1999 Nina Burdynyuk wrote to the local military prosecutor in Anapa, Krasnodar Region, where she was staying. She stated that on 29 October 1999 she and her husband travelled along the “humanitarian corridor” that had been declared for Grozny residents. Through a local transport agency, they had arranged in advance for a truck to collect them and their movable property. As the roadblock was closed, they had to go back to Grozny. At 1.10 p.m. near the village of Shaami-Yurt they were attacked by military planes. Their car was thrown to the side by a blast, which killed her husband, and wounded her and the driver. Ms Burdynyuk was taken away by passers-by for first aid, but returned for her husband's body, which had in the meantime been taken to a village mosque. With the assistance of a local resident, she took her husband's body to a roadblock near Achkhoy-Martan and buried it in a shallow grave. On 4 November she reached Anapa, where her daughter lived. She was treated in hospital for head trauma and concussion. Upon release from the hospital, on 2 December 1999, she returned to Chechnya to collect her husband's body. On 5 December 1999 she placed it in the Anapa town morgue. She requested the military prosecutor of the Novorossiysk Garrison to open a criminal investigation into the attack and to order a forensic expert report on her husband's body.
56. On 8 December 1999 a forensic report on the body of Boris Burdynyuk concluded that he had died of a shell wound to the chest, possibly in the circumstances indicated in his wife's statement. On 8 December 1999 the Anapa civil registration office issued a death certificate for Boris Burdynyuk, who had died on 29 October 1999 in the village of Shaami-Yurt, Chechnya.
57. The documents pertaining to the case were forwarded to the military prosecutor of military unit no. 20102, who on 7 February 2000 issued a decision not to start criminal investigation because no crime has been committed. There were no grounds to conclude that military pilots could have been involved in the death of Boris Burdynyuk.
58. On 23 October 2000 that decision was quashed by a military prosecutor of military unit no. 20102. The investigation was joined to investigation of criminal case no. 14/33/0205-00, which concerned the attack on the Red Cross convoy.
59. On 1 September 2000 Ms Burdynyuk was questioned as a witness. On the same day an investigator of the Anapa Prosecutor's Office, acting upon directions from the military prosecutors, issued a decision to recognise her as a victim and as a civil plaintiff in the case.
60. On 11 August 2000 two of the first applicant's relatives – her brother Aslanbek Vakhabov and nephew Alikhan Vakhabov - were questioned as witnesses. Aslanbek testified that his wife and son, the first and the second applicants and other relatives (he named 12 persons) had left Grozny on the morning of 29 October 1999 for Ingushetia. The witness had remained at home, and at about 5 p.m. his relatives had returned with the same minibus. Four of the people inside had been killed and the rest were wounded, as a result of an air strike at the convoy. The first applicant's two children, Ilona Isayeva and Said-Magomed Isayev, were buried in the Chernorechye cemetery near Grozny. Alikhan Vakhabov, a teenager who was in the minibus, testified about the circumstances of the attack and about his splinter wound in the left shoulder. He was treated in the Atagi hospital immediately after the incident, and then stayed for some time in the Nazran hospital in Ingushetia.
61. On 18 October 2000 the investigators questioned Zhalavdi Magomadov, a relative of the Vakhabovs, who was in the minivan on 29 October 1999 and who gave a detailed account of the events. He submitted that there were 15 passengers in the minibus, himself included, plus the driver. He estimated the timing of the attack between 12 and 1 p.m., because some people had stopped by the road for the midday prayer (namaz). He recalled that first he heard an explosion in front of their car, where a Mercedes truck had been travelling. Their minivan stopped and everyone started to get out of the car and ran towards the shoulder of the road. At that point a second explosion occurred on the right side of the road. The witness was wounded by shrapnel in both legs, one arm and his back and he was in a state of shock, but he recalled two other explosions somewhere nearby. He further recalled being brought by his relatives to the hospital in Staraya Sunzha, where he was operated on and shrapnel were extracted from his body. Six passengers in the van were killed: the witness's mother (Asma Magomedova) and two sisters, the first applicant's two children and another woman. The witness submitted that no forensic examinations were performed on the bodies before burial and that he objected to exhumation of the bodies of his mother and two sisters. Seven passengers in the minivan, including himself and the driver, received shrapnel wounds of varying severity. When asked if he had heard anyone shooting from the convoy at the planes, the witness denied it and said that he did not see any armed men in the convoy. He also produced a detailed drawing of the site, with an indication of the placement of the cars on the road and the explosions.
62. The investigators attempted to find the first and the second applicants. In September 2001 they questioned a resident of Nazran, who stated that in September 1999 – autumn 2000 two families of refugees, the Yusupovs and Isayevs had lived in his house. He did not know anything of the attack in October 1999 and did not know where they had gone afterwards.
63. On 15 August 2000 the investigators of military unit no. 20102, together with two employees of the Red Cross who had witnessed the attack, travelled to the site. They found the damaged carcass of the Mercedes truck about 30 metres from the bridge and photographed it and the fresh asphalt patch on the road where the witnesses stated the crater had been. The Red Cross submitted their own photographs of the destroyed truck and of the explosion craters on the road.
64. The investigation attempted to identify and question other victims of the attack or their relatives and to collect medical records and death certificates. Requests were sent to the local departments of the interior in Chechnya, to the district prosecutors' offices and to the five largest refugee camps in Ingushetia.
65. On several occasions in 2000 and 2001 six workers from the Chechen Committee of the Red Cross were questioned about the circumstances of the attack. They gave detailed explanations, accompanied by drawings of the site. Relatives of the two deceased Red Cross drivers were questioned. They testified about the deaths and identified the graves. An order for exhumation and a forensic report was issued, but the relatives objected and the order was not carried out. The father of one driver was granted victim status in the proceedings in July 2001.
66. In addition to the relatives of the first and the second applicants, Ms Burdynyuk and Red Cross staff, the investigators identified other victims. Two correspondents of local TV stations, Ramzan Mezhidov and Shamil Gegayev, were killed during the attack. The investigators questioned Mezhidov's mother and widow, who objected to his exhumation. They submitted his death certificate and medical documents about his wounds. It does not appear that Gegayev's relatives were questioned.
67. The relatives of Sadik Guchigov, driver of the truck in which the Burdynyuk family had been travelling, testified that he had died from his wounds one month after the events. His widow was questioned and granted victim status in the proceedings. She also produced her husband's medical documents and death certificate and objected to his exhumation.
68. Five other persons who were killed during the attack on the convoy were identified, their relatives were questioned and some were granted victim status. In addition, one local resident from the village Valerik was killed not far from the road when he was washing his car by a pond, apparently by the same air strikes. His brother was also granted victim status.
69. The investigation established a total of 18 deaths.
70. The witnesses also consistently referred to a PAZ bus (a 25-seater), which received a direct hit and where at least 12 persons were killed. They also referred to a Kamaz truck containing refugees – mostly women and children – and cattle which was directly hit and burned down, apparently with no survivors. It does not appear that the passengers of these two vehicles or their relatives were ever established.
71. On 6 September 2001 the investigators questioned a woman, whose name was not submitted to the Court, identified as “Raisa”. She testified that on 29 October 1999, together with three other persons, she tried to leave in their car for Ingushetia through the “humanitarian corridor”. After they were refused permission to cross at the checkpoint, they turned back at about noon and reached Grozny safely. Later she learned that the refugees had been attacked from the air, and that many people were killed and wounded. She submitted that on the road back she had seen a group of four or five men on the edge of the Samashki forest, dressed in camouflage and with machine-guns. Their car, a mud-splattered all-terrain UAZ vehicle, was nearby. The witness presumed that these were Chechen fighters, who could have provoked the military planes, circling in the skies, to strike at the refugees on the road. When asked, the witness said that she did not see a Kamaz or any other trucks with fighters.
72. Through witnesses testimonies and medical documents the investigators also identified several persons who had been wounded, among them the first and second applicants.
73. In summer 2001 ten medical records of the wounded on 29 October 1999 were sent from the Urus-Martan hospital for forensic reports. The reports concluded that the injuries –shrapnel wounds, traumatic amputations of limbs, concussion, head traumas – could have been received in the circumstances described by the victims, i.e. during an air strike. Two of the wounded died later and their relatives were granted victim status in the proceedings. One was Ramzan Mezhidov, a local TV reporter. It appears that other wounded persons or their relatives were not found by the investigators, despite certain attempts to that effect.
74. On 27 August 2001 the investigator issued nine decisions to grant victim status to persons whose relatives had been killed or wounded, among them the first and second applicants. These decisions were not countersigned by the victims, as prescribed by the Code of Criminal Procedure, and there is no indication that they were sent to the applicants or to their relatives whose addresses had been established.
75. The investigators questioned eight residents of Shaami-Yurt. They testified that there were air-strikes on the road and that dead bodies had been brought to the village mosque on 29 October 1999. They also testified about giving first aid to the victims.
76. In 2000 and 2001 the investigators questioned medical personnel from the hospitals in Achkhoy-Martan, Staraya Sunzha (Grozny), Urus-Martan and Nazran (Ingushetia). They testified about the wounded who had been brought to the hospitals on 29 October 1999. It appears that the majority of the victims were brought to the Achkhoy-Martan hospital, which was the closest to the site. However, no records were made that day because the large number of victims meant that all the staff was busy providing first aid for the heavy wounds. At least ten wounded persons were brought to the Urus-Martan hospital and six to the Staraya Sunzha hospital, where a nurse recalled treating the second applicant and Zhalaudi Magomadov for shrapnel wounds.
77. In November 2000 in the course of the investigation into the applicants' complaints, the District Prosecutor's Office in Achkhoy-Martan requested the commander of the UGA and the military commandant of Chechnya to submit information about flights on 29 October 1999 in the vicinity of Achkhoy-Martan and Shaami-Yurt. It is unclear if any answers were submitted, and ten days later the criminal investigation was transferred to the military prosecutor of military unit no. 20102.
78. In October 2000 the military investigators questioned two military pilots and an air controller. They were questioned as witnesses and their real names were not disclosed to the Court.
79. The air controller identified as “Sidorov” submitted that on the evening on 28 October 1999 he was informed, in accordance with procedure, about an aviation mission for the following day. The mission was to prevent the movement along the road towards Grozny of heavy vehicles, possibly carrying weapons, fighters and other supply equipment for the “illegal armed groups” defending the city. On the same evening he informed two pilots of the mission. Neither on 28-29 October 1999, nor later, until the questioning, had he been informed of a “humanitarian corridor” for civilians, about the movement of a Red Cross convoy on the road or about civilian casualties. He was not aware whether the “Kavkaz-1” roadblock was functioning or not and received no information from that roadblock.
80. The witness further submitted that on 29 October 1999 the pilots left for the mission without airborne forward controllers, because the mission was not perceived to be taking place close enough to the federal troops. The forward air controllers remained on the ground in the control tower. At about 2 p.m. one air-crew reported a solitary Kamaz truck on the road near the village of Shaami-Yurt, not far from the Samashki forest, from which they were being fired at. The air controller, knowing from the reconnaissance information about the presence of fighters in the Samashki forest and in view of the mission's purpose, permitted them to open fire. The pilots did not report any other vehicles on the road or the Red Cross signs on the truck. Neither did they report any errors in hitting the targets.
81. On 10 October 2000 a pilot identified as “Ivanov” testified that on 29 October 1999 he was performing a mission to prevent the movement of heavy vehicles towards Grozny. On the road near Shaami-Yurt, about 100 metres from the bridge, he observed a dark-green Kamaz truck with a canvass cover. He descended from 1500 metres to 200 metres for a closer look. The pilot could see the truck very clearly, was certain of its mark and was sure that it did not bear any signs of the Red Cross. When asked, he responded that had he seen the Red Cross signs, he would not have fired at the vehicle. He was also certain that there were no other vehicles on the road at that time. The wingman reported fire from the truck, and the pilot requested the ground controller's permission to open fire. Permission was granted and the pilot made a loop, aimed at the truck and fired rockets from the height of 800 metres. By that time the truck had already crossed the bridge. The timing of the attack was about 2.05 – 2.10 p.m. He then climbed to 2000 metres. When flying over the site he noted that the truck had stopped. Then, at the crossroads near the village of Kulary he noted a second solitary Kamaz truck, also dark-green, and a group of armed persons dressed in camouflage near it, firing at the planes with sub-machine guns. The crew's attention was drawn to this new target and they no longer observed the first target. The visibility conditions were good and the sky was clear. No other cars were on the road at the time. The pilot submitted a drawing of the site with indications of the two solitary trucks on the road.
82. On 10 October 2000 a pilot identified as “Petrov” was questioned as a witness. His testimony begins with words “I confirm my previous submissions”, however no other testimonies from him were submitted to the Court. He repeated, almost word for word, the first pilot's submissions about the circumstances of the attack on 29 October 1999. He added that he did not see “any refugee convoys” or cars marked with a Red Cross symbol.
83. On 8 December 2000 additional information was taken from the pilot identified as “Ivanov”. The statement refers to two previous interviews, of which only one – dated 10 October 2000 – was submitted to the Court. The pilot was questioned about the number and type of missiles fired. He said that he fired two S-24 missiles at the first Kamaz truck.
84. As well as answering questions, the pilots were asked to indicate the coordinates of their targets on a detailed map of the district, which they did. One target was marked on the road before the bridge leading to the village of Shaami-Yurt, the other – about 12 kilometres away along the same road, on an intersection near the village of Kulary.
85. The case-file also contains two photographs of planes, undated and without descriptions.
86. On 7 September 2001 the criminal case was closed due to the absence of corpus delicti in the pilots' actions. It does not appear, however, that this decision was communicated in a timely manner to the victims or to the applicants. Nor was a copy of this decision submitted to the Court.
87. On 6 June 2002 Ms Burdynyuk wrote to the Rostov-on-Don Garrison Military Court asking for review of the decision not to open criminal proceedings. On 31 December 2002 the Military Prosecutor of the Northern Caucasus forwarded her complaint to the Military Circuit Court, along with the criminal case which comprised five volumes. On 4 February 2003 the North Caucasus Circuit Military Court established that the case should have been reviewed by the Grozny Garrison Court, but because the latter was not functioning, the case was transferred to the Bataysk Garrison Military Court.
88. On 14 March 2003 the Bataysk Garrison Military Court quashed the decision of 7 September 2001 and remitted the case for a new investigation. The court cited the decision of 7 September 2001, according to which the investigation had established that on 29 October 1999 the pilots “Ivanov” and “Petrov” struck at two solitary Kamaz trucks containing rebel fighters on the road between the border between Ingushetia and Grozny. Both vehicles were destroyed. However, besides the two vehicles, the rockets damaged the convoy of Red Cross vehicles and refugees. As a result of the attack, 14 vehicles were destroyed and 16 persons killed, including Ms Burdynyuk's husband; 11 persons were wounded. The investigation concluded that “the convoy was indeed damaged by the actions of the pilots 'Ivanov' and 'Petrov' from the Ministry of Defence, who were acting in accordance with their mission and aimed the missiles at the cluster of enemy personal and hardware. They did not intend to destroy the civilian population and the Red Cross convoy, because they did not and could not have foreseen such a possibility. Death and injuries were caused to the victims because they, on their own initiative, happened to be in the impact zone of the missiles, the extent of which exceeds 800 metres”.
The Garrison Court stated:
“On 7 September 2001 the criminal case was closed by an investigator of the Circuit Military Prosecutor's Office for the Northern Caucasus under Article 5 § 2 of the Criminal Procedural Code, i.e. due to the absence of corpus delicti in the pilots' actions, because the vehicles of the Red Cross and of the refugees on their own entered into the impact zone of the missiles. The pilots did not and could have not foreseen such consequences.
The court believes that the pilots were executing an assigned task, namely to 'locate and destroy fortified points and the enemy mobile forces and resources' in 'free chase' mode, i.e. the decision to employ combat means was based on their own appreciation of the observed situation. There is no doubt that such assessment should include not only an assessment of the targets, but also of the possible harm to other vehicles and persons who were in the vicinity. Observing the said targets (cars with 'fighters'), they could not have failed to notice other vehicles with people nearby, and they should have proportionated the weapons according to their characteristics, precision, damage radius etc. The court finds that the pilots did not take all this properly into account, which explains that 14 civilian vehicles were damaged, 16 persons killed and 11 persons were wounded as a result of the missile attack.
...taking into account that not all investigative measures were taken to the extent necessary to ascertain the pilots' guilt, an additional investigation is needed in this case”.
89. On 26 March 2003 the North Caucasus Military Prosecutor's Office accepted the case for further investigation.
90. On 5 May 2004 a prosecutor of the North Caucasus Military Prosecutor's Office again closed the criminal case due to the absence of corpus delicti in the pilots' actions. A copy of this document was submitted by the Government after the hearings in Strasbourg on 14 October 2004. The Government did not submit new documents from the investigation file to which the decision refers. From this document it follows that at some point (presumably, after March 2003) the first and the second applicants were questioned as witnesses about the circumstances of the attack and granted victim status in the proceedings. Additional attempts were made to find and question the third applicant, but they were not successful.
91. The document also referred to some additional evidence obtained from the military. It mentioned a log book which noted the time of the missile strike on 29 October 1999 in the vicinity of Shaami-Yurt as 14.05 – 14.20 p.m.
92. The decision referred to undated statements of the two pilots identified as P. and B. (presumably the same ones as “Ivanov” and “Petrov”, cited above in §§ 81-84). Pilot P. in his statement allegedly submitted that while on mission on 29 October 1999 they noted a Kamaz truck on the eastern edge of the Samashki forest, near the village of Shaami-Yurt. Some persons jumped out and ran towards the forest. At the same time the plane was shot at from the truck, probably with a large-calibre machine-gun. The pilot realised that the plane had been hit. He reported this to the leading pilot, who requested permission to use fire-power from the control centre. When the permission had been granted, they both fired at the truck two rockets each, twice, from the height of 1600-2000 metres. At that time they did not notice any other vehicles on the road in the vicinity of the truck. There were some vehicles further on the road, towards Grozny, but at a considerable distance. One or two seconds after the missiles were fired the pilot noted another truck coming out of the Samashki forest and heading towards Grozny. The truck entered the impact zone. The pilot did not have time to verify what had happened to it or if there had been other vehicles on the road because of the danger of being shot at.
93. Pilot P. is further quoted as saying that they were informed that the road had been closed at the administrative border with Ingushetia. They therefore presumed that the trucks were coming out of the Samashki forest, where a considerable group of fighters (“boyeviki”) had gathered. They did not see any transport moving out of Grozny at that time. Pilot B. is quoted as having added to these statements that the missiles could have changed the direction on their own, or because they had been shot at from the ground.
94. The document further cites undated statements of two unidentified airport technicians, who had on 29 October 1999 examined two SU-25 planes after their return from a mission. The pilots informed them that they had been shot at, probably with a large-calibre machine-gun. The examination of both planes, hull numbers 40 and 73 respectively, revealed two holes, 20 and 70-90 mm large, in the first plane and one hole, 20 mm large, in the second plane. One technician suggested that the holes resulted from large-calibre machine-gun bullets. The decision further referred to two undated protocols of inspection of planes nos. 40 and 73, which noted similar damage.
95. The decision further mentioned statements on unspecified dates by the commander of the military aviation unit and 12 of the pilots' colleagues, who apparently denied having heard anything about the attack on the civilian convoy on 29 October 1999.
96. In addition, the decision of 5 May 2004 referred to the results of an investigative experiment, which showed that the sign of the red cross on the flag of the Chechen Committee of the Red Cross was clearly distinguishable from the distance of 200 metres. The document also referred to information from the headquarters of the 4-th Army of the Air Force and Anti-Air Defence which defined the impact radius of the S-24 missiles at 300 metres.
97. The document concluded that harm to the civilians was caused by the actions of the pilots B. and P., who had acted in permissible self-defence and had tried to prevent damage to the legitimate interests of the society and state from members of illegal armed groups. Furthermore, the pilots did not intend to cause harm to the civilians because they did not see them until the missiles had been launched. The criminal investigation was closed for absence of corpus delicti in the pilots' actions. By the same decision the decisions to grant victim status in the civil proceedings were quashed, and the victims should have been informed of a possibility to seek redress from the Ministry of Defence through civil proceedings. It does not appear that the decision was sent to the victims, including the applicants.
98. The applicants submitted a number of additional documents relating to the circumstances of the attack and the investigation.
99. The applicants submitted additional statements about the circumstances of the attack and its effects. The second applicant submitted that the shock of that day has stayed with her and her relatives. The third applicant submitted that “since that attack on the road I am plagued by nightmares... I am still sick every time I see a dummy in a shop window. It reminds me of the dead I saw on the Rostov-Baku highway. This effect is so strong that on several occasions I have fainted in shops. A month ago I walked into a phone company store in Nazran. They had a model of a hand in the shop window. That brought back the memory of a hand cut off and a woman's leg that I saw right in front of me on the road on 29 October 1999. I felt sick and fainted. I was sick for some days afterwards. Now I simply can't walk into a shop with dummies or with models of human bodies”.
100. The third applicant also submitted a list of items which were inside the GAZ vehicle destroyed during the attack and documents for the three vehicles destroyed during the attack – a “Zhiguli” VAZ 21063, produced in 1992, a “Niva” VAZ 21213, produced in 1996 and a GAZ 53, produced in 1982. The list of items included cash in US dollars to the amount of 48,000, hi-fi and computer equipment to a value of 1,350 US dollars, household items and clothing to the value of 28,640 US dollars, jewellery to the value of 8,770 US dollars, and three cars to a value of 20,500 US dollars. The total value was indicated at 108,760 US dollars.
101. The applicants submitted five additional testimonies from witnesses and victims, related to the circumstances of the attack. Witness A. testified that she was in the same car as Ramzan Mezhidov and Shamil Gigayev, TV reporters, both of whom were killed. After the first blast Mezhidov got out of the car and filmed the destruction around him; he was killed by a second blast. Afterwards, they attempted to retrieve his camera and the tape, but they were beyond repair. Gigayev's widow testified about her husband's death. Witness B. testified that their car was near Shaami-Yurt and returning to Grozny when the attack occurred. The witness and his brother were wounded and taken to the Urus-Martan hospital for treatment. On 22 November 1999 he was transferred to Ingushetia. Two other witnesses, employees of the Red Cross, also described the circumstances of the attack. All witnesses denied that there had been any shooting at the planes before or during the attack, or that there were armed men in the convoy.
102. The applicants submitted a report prepared by the NGO Human Rights Watch in April 2003, entitled “A Summary of Human Rights Watch Research on Attacks on Fleeing Civilians and Civilian Convoys during the War in Chechnya, Russia, between October 1999 and February 2000”. The submission, prepared for the European Court of Human Rights, is based on eyewitness testimonies collected by the HRW researchers in Ingushetia between November 1999 and May 2000. The report described at least five independent incidents where civilians fleeing from fighting were attacked en route. The report stated that “the Russian forces appear to have deliberately bombed, shelled, or fired upon civilian convoys, causing significant civilian casualties. ... The most egregious attack occurred on October 29, 1999 when dozens of civilian vehicles taking a so-called safe route out of Grozny on the Baku-Rostov highway were attacked by Russian aircraft.” The report invoked provisions of international humanitarian law, namely Common Article 3 to the Geneva Conventions of 1949, as well as Article 13 (2) of Protocol II Additional to the Geneva Conventions of August 1949. The report submitted that “where aircraft make multiple attack passes over a civilian convoy, or convoys are subject to prolonged attack by ground troops, the most plausible inference is that such attacks are intentional and with the likely knowledge of the predominantly civil character of the convoy. Customary international law requires that any attacks discriminate between the civilians and military objects and that foreseeable injury to civilians be proportionate to the direct and concrete military advantage to be gained by the attack. ... Each of the incidents described below raises concerns that civilians may have been targeted intentionally or that the force used was not proportionate to the military advantage pursued...”.
103. The report proceeded to describe in detail the announcement of the safe route on 29 October 1999, the closing of the administrative border with Ingushetia and the attack itself. Based on interviews with witnesses, press articles and public statements, it presented information about the damaged vehicles. It referred to the van with 13 passengers in which the first and the second applicants with their families were travelling. The second applicant and another passenger who had been in the minivan were interviewed and gave details of the attack.
104. The report concluded that the exact number of victims of the attack is unknown and it is unlikely that it would ever be known, since many victims were never identified. The eyewitnesses gave accounts of the number of persons killed, varying between 40 and 70 people. They were buried in nearby villages.
105. Various documents related to the establishment of facts of the first applicant's children's deaths were submitted to the Court.
106. In her statement of 15 December 1999 the first applicant asked the Nazran Town Court to certify the fact of her two children's deaths. She submitted that on 29 October 1999 a refugee convoy was attacked by fighter planes on the “Kavkaz” highway, between Achkhoy-Martan and Shaami-Yurt. Many people were killed, among them her children Ilona Isayeva and Said-Magomed Isayev. Their bodies were taken back to Grozny and buried in Chernorechye, near Grozny. The applicant could not attend her children's funeral, because at that time she was being treated for her wounds by relatives in Grozny. She could not produce any documents about her children's deaths nor about her own wounds, because no hospital or state body was functioning in Chechnya due to the hostilities. The applicant could not even obtain a burial certificate from the local authority. She requested that the second applicant and Ruslan Vakhabov be called to testify about her children's deaths, to which they had been eyewitnesses. At that time they were all living in the Logovaz-1 refugee camp in Nazran. The court decision was required to obtain death certificates, which the civil registration body had refused to issue in the absence of medical certification of the deaths.
107. On 20 December 1999 the Nazran Town Court granted the first applicant's request. From the transcript of the proceedings it follows that the court heard the first applicant, who repeated her statement, and two witnesses as she had requested. Ruslan Vakhabov and the second applicant confirmed the deaths of Ilona Isayeva and Said-Magomed Isayev (see § 35 above).
108. Article 20 of the Constitution of the Russian Federation protects the right to life.
109. Article 46 of the Constitution guarantees the protection of rights and liberties in a court of law by providing that the decisions and actions of any public authority may be appealed to a court of law. Section 3 of the same Article guarantees the right to apply to international bodies for the protection of human rights once domestic legal remedies have been exhausted.
110. Articles 52 and 53 provide that the rights of victims of crime and abuse of power shall be protected by law. They are guaranteed access to the courts and compensation by the State for damage caused by the unlawful actions of a public authority.
111. Article 55 (3) provides for the restriction of rights and liberties by federal law, but only to the extent required for the protection of the fundamental principles of the constitutional system, morality, health, rights and lawful interests of other persons, the defence of the country and the security of the state.
112. Article 56 of the Constitution provides that a state of emergency may be declared in accordance with federal law. Certain rights, including the right to life and freedom from torture, may not be restricted.
113. Section 25 of the Law on Defence (Федеральный закон от 31 мая 1996 г. N 61-ФЗ "Об обороне") provides that “supervision of adherence to laws and investigations of crimes committed in the Armed Forces of the Russian Federation, other Forces, military formations and authorities shall be exercised by the General Prosecutor of the Russian Federation and subordinate prosecutors. Civil and criminal cases in the Armed Forces of the Russian Federation, other forces, military formations and authorities shall be examined by the courts in accordance with the legislation of the Russian Federation.”
114. The Law on the Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows:
“Section 3. Basic Concepts
For purposes of the present Federal Law the following basic concepts shall be applied:
... 'the suppression of terrorism' shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities;
'counter terrorist operation' shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts;
'zone of a counter-terrorist operation' shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...
Section 13. Legal regime in the zone of an anti-terrorist operation
1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled:
... 2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification;
3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation;
4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health;
5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...
Section 21. Exemption from liability for damage
In accordance with and within the limits established by the legislation, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.”
115. Articles 126-127 of the Code of Civil Procedure (Гражданский процессуальный Кодекс РСФСР) ), in force at the material time, contained general formal requirements governing an application to a court, including, inter alia, the defendant's name and address, the exact circumstances on which the claim was based and any documents supporting the claim.
Article 214 part 4 provided that the court had to suspend consideration of a case if it could not be considered until completion of another set of civil, criminal or administrative proceedings.
116. Article 225 of the Code provided that if in the course of reviewing a complaint against the actions of an official or a civil claim a court came across information indicating that a crime had been committed, it was required to inform the prosecutor.
117. Chapter 24-1 established that a citizen could apply to a court for redress in respect of unlawful actions by a state body or official. Such complaints could have been submitted to a court, either at the location of the state body or at the plaintiff's place of residence, at the latter's discretion. Under the same procedure, the courts could also rule on an award of damages, including non-pecuniary damages, where they concluded that a violation had occurred.
118. The Code of Criminal Procedure (Уголовно-процессуальный Кодекс РСФСР 1960г. с изменениями и дополнениями), in force at the material time, contained provisions relating to criminal investigations.
119. Article 53 stated that where a victim had died as a result of a crime, his or her close relatives should be granted victim status. During the investigation the victim could submit evidence and bring motions, and once the investigation was complete the victim had full access to the case-file.
120. Article 108 provided that criminal proceedings could be instituted on the basis of letters and complaints from citizens, public or private bodies, articles in the press or a discovery by an investigating body, prosecutor or court of evidence that a crime had been committed.
121. Article 109 provided that the investigating body was to take one of the following decisions within a maximum period of ten days after notification of a crime: open or refuse to open a criminal investigation, or transmit the information to an appropriate body. The informants were to be informed of any decision.
122. Article 113 provided, where an investigating body refused to open a criminal investigation, a reasoned decision was to be provided. The informant was to be made aware of the decision and could appeal to a higher-ranking prosecutor or to a court.
123. Article 126 provided that military prosecutor's office was responsible for the investigation of crimes committed by military servicemen in relation to their official duties or within the boundaries of a military unit.
124. Articles 208 and 209 contained information relating to the closure of a criminal investigation. Reasons for closing a criminal case included the absence of corpus delicti. Such decisions could be appealed to a higher-ranking prosecutor or to a court.
125. No state of emergency or martial law has been declared in Chechnya. No federal law has been enacted to restrict the rights of the population of the area. No derogation under Article 15 of the Convention has been made.
126. On 6 June 2003 the State Duma adopted Decree no. 4124-III, by which an amnesty was granted in respect of criminal acts committed by the participants to the conflict on both sides in the period between December 1993 and June 2003. The amnesty does not apply to grievous crimes, such as murder.
VIOLATED_ARTICLES: 13
2


ITEMID: 001-60749
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ZVOLSKÝ AND ZVOLSKÁ v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Gaukur Jörundsson
TEXT: 9. On 20 June 1967 the applicants executed a deed of sale and gift (kupní a darovací smlouva) under which M.R., as vendor, agreed to sell them a farmhouse in Srch and to transfer the adjoining agricultural land to them without consideration. At the time, the system for transferring agricultural holdings was by a sale of the house and gift of the adjoining land that was farmed by a socialist cooperative. The approval of the cooperative and the agreement of the competent national committee were required before the deed of sale and gift could be executed. Purchasers of land were required to give an undertaking that they would work for the cooperative.
According to the applicants, M.R. wished to secure his release from his obligation to work for the socialist cooperative and could only do so by transferring the land. It was he who had proposed the arrangement, as he wanted to sort out his domestic affairs. Under the statutory provisions then in force, the applicants were obliged, as a condition for purchasing the house, to give an undertaking to work for the cooperative as a replacement for M.R. They paid him 30,000 Czechoslovak korunas on top of the purchase price of the house, as compensation for the value of the transferred land.
10. In 1991 M.R. signed a declaration that he had transferred the land of his own free will. In the applicants' submission, that declaration constituted a rider to the deed confirming M.R.'s consent.
11. However on 1 July 1993 M.R. brought a civil action against the applicants seeking, inter alia, rescission under section 8(3) of the Land Act (Law no. 229/1991) of the part of the agreement that concerned the transfer of the agricultural land.
12. In a judgment of 30 September 1994, the Pardubice District Court (okresní soud) found in favour of M.R., holding, inter alia:
“[The applicants] have invited the Court to dismiss M.R.'s actions on the ground that he transferred his land of his own free will to sort out his domestic affairs and that in consideration [for that transfer] they had assumed his obligation to work for the agricultural cooperative. ...
Section 8(3) of the Land Act (Law no. 229/1991) provides that if a landowner has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building and at the date this Act entered into force the land was still in that person's possession, the court shall, on application by a person with standing, either (a) order rescission of that part of the sale agreement by which the land was donated or transferred without consideration, or (b) order the current owner to reimburse the price of the land. ...
The Court ... finds that the aforementioned conditions were satisfied in the present case and therefore finds in favour of [M.R.]. It has been established that [M.R.] is the person with standing within the meaning of Law no. 229/1991, that is to say the person who gave [the applicants] – the obligees within the meaning of that Act – the agricultural land in connection with the sale of the building ... It has also been established that [the applicants] are currently in possession of the land. Consequently, the Court ... rescinds the section of the deed of sale and gift executed by the parties on 20 June 1967 that provides for the transfer of ownership of the land in question without consideration. ... It does not consider that the 'minuted rider to the deed' dated 6 April 1991 constitutes a valid rider to the deed of sale and gift. The statement in which [M.R.] expressly confirmed that he had sold his immovable property voluntarily and at the agreed price has no ... value in law, as it was made before the amendment to the legislation on land law that enabled him to seek restitution was passed. In fact, [M.R.] denies that he intended to sell the land [to the applicants] and the intentions of both parties are set out in the notary's minutes ... The Court finds that the [applicants'] argument that a decision in favour of [M.R.] would entail a violation of Article 11 of the Charter of Fundamental Rights and Freedoms is unfounded, as the latter was obliged to transfer ownership of the agricultural land used by the agricultural cooperative without consideration.”
13. In a judgment of 29 February 1996, the Hradec Králové Regional Court (krajský soud) upheld the District Court's judgment rescinding the relevant part of the deed of sale and gift. It found that M.R. had given, and thus de facto transferred without consideration, the agricultural land to the applicants as part of the agreement for the sale of the adjoining house. The Regional Court also noted that the terms “donate” and “transfer without consideration” were identical. At the same time, it dismissed an application by the applicants for leave to appeal on points of law (dovolání), holding that the request for a ruling on the construction of the words “transfer without consideration” in section 8(4) of the Land Act did not raise a question of crucial legal importance (rozhodnutí po právní stránce zásadního významu).
14. Article 239 § 2 of the Code of Civil Procedure provides that leave to appeal on points of law will be granted if the court hearing the appeal on points of law (dovolací soud) considers that the impugned decision gives rise to a question of crucial legal importance. In reliance on that provision, the applicants appealed to the Supreme Court on 14 June 1996, alleging that the ordinary courts had construed the Land Act erroneously by confusing two incompatible concepts: “donations” and “transfers without consideration”.
15. In a judgment of 29 July 1997, the Supreme Court (Nejvyšší soud) refused the applicants leave to appeal on points of law, holding that the Regional Court's judgment did not give rise to a question of crucial legal importance. It noted that it had considered the question of the definition of the terms “donations” and “transfers without consideration” in a number of previous decisions in which it had construed the Act as not requiring duress to have been used if the agricultural land had been transferred without consideration. The Supreme Court's judgment was served on the applicants at the earliest on 11 September 1997.
16. On 12 November 1997 the applicants lodged a constitutional appeal (ústavní stížnost) in which they alleged that the domestic courts' decisions had violated the constitutional guarantees embodied in Articles 1, 11 §§ 1 and 3 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod), namely equality of rights for citizens and protection of property. They also sought an order abrogating section 8(4) of the Land Act.
17. On 4 August 1998 the Constitutional Court (Ústavní soud) declared their appeal inadmissible as being out of time. It held, inter alia:
“The Constitutional Court considers that litigants are not entitled to bring proceedings in the Supreme Court that do not qualify for leave under the statutory rules or to make an application in such proceedings for an order quashing decisions of the ordinary courts, unless a refusal to hear [the appeal on points of law] would constitute a denial of justice and, consequently, a breach of the right to a fair trial. The [Supreme Court's] judgment does not constitute a decision on the final statutory remedy for the protection of rights ... The constitutional appeal could only be brought against the appeal court's decision, which became enforceable on 15 May 1996. Since it was not lodged until 17 November 1997, it fails to satisfy the condition set out in section 72(2) of the Constitutional Court Act. For this reason, the Constitutional Court has no alternative but to declare the appeal inadmissible, as it was lodged after the expiry of the statutory time-limit.”
18. Article 10 of the Constitution of the Czech Republic (as worded at the material time) provided that treaties on human rights and fundamental freedoms that had been ratified and promulgated and were binding on the Czech Republic had immediate mandatory effect and prevailed over statute.
19. Article 11 §§ 1 and 2 of the Charter of Fundamental Rights and Freedoms provide, inter alia, that everyone has the right to property. It is for the legislature to identify property that is necessary for society's needs, the development of the national economy or the public interest that may be owned only by the State, local authorities or such legal entities as the legislature may designate. It may also provide that certain property may be owned solely by citizens or legal entities domiciled in the Czech and Slovak Federal Republic. Article 11 § 3 prohibits any abuse of property that infringes the rights of others or conflicts with the general interest protected by law. The right to property must not be exercised in such a way as to cause an unlawful interference with human health, nature or the environment.
20. Article 36 § 1 of the Charter on Fundamental Rights and Freedoms provides that everyone has the right to seek justice under a set procedure from an independent and impartial court, or in specified cases, another authority.
21. Article 236 § 1 lays down that an appeal on points of law (dovolání) shall lie only against decisions (rozhodnutí) that have become enforceable, and solely as provided by law.
22. Article 239 § 1 provides that an appeal court that has upheld a decision of the court below must grant leave to appeal on points of law if it considers that its decision gives rise to a question of crucial legal importance justifying such leave (rozhodnutí po právní stránce zásadního významu). It may grant such leave on its own initiative.
Article 239 § 2 provides that if an appeal court refuses to grant an application for leave to appeal on points of law made by one of the parties before the decision upholding the decision at first instance was adopted, leave may only be obtained if the Supreme Court itself considers that the appeal court's decision gives rise to a question of crucial legal importance.
23. Section 72(1) provides that anyone claiming to be a victim of a violation by a “public authority” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of Article 10 of the Constitution shall have standing to bring a constitutional appeal.
Under section 72(2), constitutional appeals must be lodged within sixty days after the appellant has been served with the decision on the final statutory remedy available for the protection of his or her rights.
24. Section 75(1) provides that a constitutional appeal shall be inadmissible if the appellant has not used all available statutory remedies, other than an application to reopen proceedings. Section 75(2)(a) gives the Constitutional Court a discretion not to declare a constitutional appeal inadmissible for failure to exhaust statutory remedies if the issue at stake goes significantly beyond the appellant's personal interest and the appeal was lodged within one year after the impugned decision or event.
25. Section 8(4) (formerly section 8(3)) confers on a person who has donated land to a private individual under duress or transferred it without consideration under a contract for the sale of an adjoining building the right (provided that at the date the Act came into force the land was still in that person's possession) to apply to the court, which must either (a) order rescission of the part of the contract by which the land was donated or transferred without consideration to a private individual, or (b) order the owner (or his or her estate) to pay the value of the land thus acquired, such value to be assessed by reference to the price regulations in force at 24 June 1991.
If the owner of the land does not agree to pay the price in accordance with (b) above, the court will order rescission of the agreement in accordance with (a).
26. In its decision no. I ÚS 22/93 of 5 January 1995, the Constitutional Court considered, inter alia, the question of the admissibility of a constitutional appeal that had been lodged outside the statutory time-limit in a case in which the appellant was not sure whether he would be granted leave to appeal on points of law. The Constitutional Court held that when an appellant decides to appeal on points of law against a decision of the appeal court in circumstances in which it is unclear whether leave to appeal will be granted, he must lodge a constitutional appeal at the same time, in order to ensure that it is brought within the statutory time-limit.
27. In its decision no. 131/1994 of 24 May 1994, the Constitutional Court dismissed an application by forty-one members of Parliament for an order abrogating section 8(3) of the Land Act. In its reasons, it stated that section 8(3) allowed private individuals' land to be expropriated lawfully and restrictions to be imposed on the manner in which they exercised their right of property without payment of compensation, adding that the rule applied not only to rights of property that had been acquired by taking advantage of the socialist system but also to those acquired in good faith. It noted the legitimate aim pursued by the Land Act and the priority given to restoring land to original owners who had been deprived of it without compensation between 1948 and 1989. In the circumstances, it was both feasible and fair to ask those who had received property without consideration to return it without compensation to the original owner, who had been forced to donate it to them.
28. In its decision no. IV ÚS 146/96 of 30 July 1996, the Constitutional Court said that notwithstanding the fact that appeals on points of law had no suspensive effect and did not affect the enforceability of appeal court decisions, the initial target of a constitutional appeal had to be the Supreme Court's decision. If the constitutional appeal was directed only against the appeal court's judgment, the Supreme Court's decision would remain valid, so that the principle of legal certainty would be violated in the event of a conflict.
29. In its decision no. I ÚS 213/96 of 26 November 1996, the Constitutional Court said that if an appellant was unsure whether an application he had just lodged for leave to appeal on points of law would be granted, then, in order to avoid being out of time with his constitutional appeal, he should lodge it at the same time, without waiting for the decision on the application for leave, since, if leave was refused, the final decision in his case would be the appeal court decision.
30. In its decision no. II ÚS 113/97 of 8 October 1998, the Constitutional Court held that an appellant whose application for leave to appeal on points of law has been dismissed by the appeal court is nevertheless entitled to apply for leave to the Supreme Court under Article 239 § 2 of the Code of Civil Procedure. Unless he does so, he will not have exhausted the statutory remedies provided to protect his rights.
31. In its decision no. III ÚS 53/98 of 8 September 1998, the Constitutional Court found, inter alia, that, even though the applicants had been refused leave to appeal on points of law by the appeal court, they were still entitled to seek leave under Article 239 § 2 of the Code of Civil Procedure, as they satisfied the necessary conditions. Since they had not made use of that available remedy, their constitutional appeal could not be declared admissible.
32. In its decision no. IV ÚS 93/98 of 28 April 1998, the Constitutional Court declared a constitutional appeal inadmissible for failure to exhaust statutory remedies, on the ground that the appellant had failed to exercise his right to lodge an appeal on points of law under Article 239 § 2 of the Code of Civil Procedure.
33. In its reasoning in decision no. III ÚS 224/98 of 8 July 1999, the Constitutional Court stated, inter alia, that if a party to the proceedings is refused leave by the appeal court to appeal on points of law, he must apply to the Supreme Court for leave under Article 239 § 2 of the Code of Civil Procedure, otherwise his constitutional appeal will be inadmissible.
34. Decision no. IV ÚS 294/98 of 23 March 1999, which was adopted after the entry into force of an amendment to the Code of Civil Procedure on 1 January 1996 extending the right of appeal on points of law, makes it clear that an appellant may only be regarded as having exhausted available statutory remedies once the Supreme Court has delivered its decision. Any other solution would give rise to an undesirable situation with the coexistence of two sets proceedings. In such cases, time for lodging a constitutional appeal will, therefore, only start to run after the Supreme Court's decision has been served on the appellant.
35. In its decision no. III ÚS 148/99 of 15 September 1999, the Constitutional Court declared a constitutional appeal inadmissible on the ground that if a party's application to the appeal court for leave to appeal on points of law was dismissed, he would still be regarded as having failed to exhaust statutory remedies unless he applied to the Supreme Court for leave, despite the fact that it was his application to the appeal court that had made the application to the Supreme Court necessary.
36. Furthermore, applications nos. 73577/01 and 73403/01 (Vodárenská Akciová Společnost, A.S. v. the Czech Republic and Turek v. the Czech Republic, respectively), which have been lodged with the Court and communicated to the respondent Government, show that the effectiveness of lodging an appeal on points of law simultaneously with a constitutional appeal may prove to be purely theoretical. In these cases, the applicants lodged both forms of appeal at the same time, but their constitutional appeals were declared inadmissible for failure to exhaust domestic remedies, as their appeals to the Supreme Court. They subsequently lodged fresh appeals with the Constitutional Court, once the Supreme Court had refused them leave to appeal. However, their constitutional appeals were again declared inadmissible, this time on the ground that they were out of time.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1