ITEMID: 001-68419
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KHASHIYEV AND AKAYEVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violations of Art. 2;No violation of Art. 3 (torture);Violation of Art. 3 (failure to investigate);Violation of Art. 13;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicants were born in 1942 and 1955 respectively and were residents of Grozny, Chechnya. The first applicant currently resides in Ingushetia, and the second applicant in the Moscow Region.
11. The facts surrounding the deaths of the applicants' relatives and the ensuing investigation were partially disputed. In view of this the Court requested that the Government produce copies of the entire investigation files opened in relation to the applicants' relatives' deaths. The Court also requested that the applicants produce additional documentary evidence in support of their allegations.
12. The submissions of the parties on the facts concerning the circumstances of the applicants' relatives' deaths 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.
13. The first applicant lived at 101 Tashkalinskaya Street in the Staropromyslovskiy district of Grozny. After 1991 the first applicant, who is ethnic Ingush, attempted to sell the house and leave because he felt threatened by the situation in Chechnya, but could not find anyone to buy it. During the hostilities in 1994-1996 the first applicant and his family stayed in Ingushetia, and on their return found that all their property had been destroyed or looted.
14. In November 1999 the first applicant left Grozny because of the renewed hostilities. His relatives decided to stay in Grozny to look after their houses and property. They were his brother, Khamid Khashiyev (born in 1952), his sister Lidiya Khashiyeva (born in 1943) and her two sons, Rizvan Taymeskhanov (born in 1977) and Anzor Taymeskhanov (born in 1982). The first applicant's brother lived in the street parallel to Tashkalinskaya Street, at 109 Neftyanaya Street, and his sister lived in the neighbouring house at 107 Neftyanaya Street.
15. The second applicant was a resident of the “Tashkala” quarter in the Staropromyslovskiy district of Grozny. In October 1999 she left the city together with her mother and sister because of the hostilities. Her brother, Adlan Akayev (born in 1953) remained to look after their property and house, located at 24 4-th Neftyanoy Lane.
16. In December 1999 the Russian federal army started an operation to take control of Grozny. Heavy fighting lasted until the end of January 2000, when the central parts of the city were finally taken. The exact date on which the Staropromyslovskiy district of Grozny was taken by the federal forces is somewhat unclear. The applicants submitted, referring to the Government RIA and Interfax news agencies, that by 20 January 2000 the Staropromyslovskiy district was under the Russian federal forces' firm control. Several witness statements produced by the parties indicate that the federal troops were in control of the district as from 27 December 1999. The Government disputed this allegation and referred to two witness statements, allegedly contained in criminal investigation file no. 12038 which suggest that, although troops were present in the district as early as 1 January 2000, they still faced scattered resistance from the Chechen fighters (“boyeviki”). However, no such testimonies are contained in the copy of the file submitted by the Government to the Court, nor are they listed in the list of documents attached to the criminal case-file.
17. At the end of January 2000 the applicants learned that their relatives had been killed in Grozny. On 25 January 2000 the first applicant, his sister Movlatkhan Bokova (maiden name Khashiyeva), and one of their former neighbours from Grozny, Petimat (also spelled Fatima) Goygova, travelled to Grozny to find out more about the state of their relatives. At 107 Neftyanaya Street they found three bodies lying in the courtyard with gunshot wounds and other marks. These were Lidiya Khashiyeva and Anzor Taymeskhanov, the first applicant's sister and nephew, and Adlan Akayev, the second applicant's brother. The second applicant's brother was holding his identity card as Head of the Physics Department of the Grozny Teaching Institute. Other documents were in a shirt pocket: his passport, identity card as researcher for the Grozny Oil Institute and his driving licence. Identity documents were also found on the two other bodies.
18. The first applicant and the women had to return to Ingushetia on the same day, because of the curfew imposed after 5 p.m. There they informed the family of Adlan Akayev, including the second applicant, of his death. Having arranged for transport, on 28 January 2000 they went to Grozny to collect the bodies. Soldiers from a roadblock in the Staropromyslovskiy district accompanied them to the house at 107 Neftyanaya Street and helped them to collect the bodies. The first applicant brought the bodies to the village of Voznesenskoye in Ingushetia, where they were buried on 29 January 2000.
19. The first applicant submits that the bodies of his relatives bore marks of numerous stab and gunshot wounds and bruises, and that some bones were broken. In particular, the body of Lidiya Khashiyeva had 19 stab wounds, her arms and legs were broken and teeth were missing. The body of Anzor Taymeskhanov had multiple stab and gunshot wounds, and his jaw was broken (see § 51 below).
20. On 28 January 2000 the second applicant travelled to Voznesenskoye and saw the bodies of her brother and of the first applicant's relatives. She saw numerous gunshot and stab wounds and traces of beatings and torture on the body of her brother and on the other bodies. In particular, she submits that her brother's body had seven gunshot wounds to his skull, heart and abdominal area. The left side of his face was bruised and his collar-bone was broken (see § 61).
21. Both applicants submit that they did not contact a medical doctor or take photographs of the bodies at that stage due to the state of shock caused by their relatives' violent deaths.
22. On 2 February 2000 the village authorities of Psedakh, Ingushetia, issued a certificate to confirm that the body of Adlan Akayev, brought from the Staropromyslovskiy district of Grozny, was buried on 29 January 2000 in the village cemetery.
23. On 9 February 2000 the second applicant travelled to Grozny. In the courtyard of the house at 107 Neftyanaya Street she picked up machine-gun cartridges and her brother's hat. On the same day she saw five other bodies in a nearby house. All had been shot. She learned that a sixth woman from the same group, Elena G., had been wounded but survived. The second applicant later traced her to Ingushetia. Elena G. informed the second applicant that they had been shot at by soldiers and that she had last seen the applicant's brother alive on the evening of 19 January 2000.
24. On 10 February 2000, the first applicant, together with his daughter and sister, travelled to Grozny again, hoping to find his missing brother and nephew. With help from a local resident they found three bodies lying between nearby garages. These were the bodies of Khamid Khashiyev and Rizvan Taymeskhanov, the first applicant's brother and second nephew. The third body belonged to Magomed Goygov, a neighbour. The first applicant took photographs of the bodies. He then brought a car to transport the bodies to Ingushetia, where they were buried the next day. Goygov's body was collected by his relatives on 11 February 2000 for burial.
25. The first applicant submits that Khamid Khashiyev's body was mutilated, half of his skull was smashed and some fingers had been cut off. Rizvan Taymeskhanov's body was grossly mutilated from numerous gunshots (see §§ 52 and 54).
26. On 10 February 2000 at the first applicant's request, the three bodies were examined by officers of the Nazran Department of the Interior, who reported numerous wounds to the head, body and extremities. The examination took place in the Malgobek town morgue. The officers did not remove the clothes from the bodies, which were frozen.
27. The second's applicant's mother, Isit Akayeva, died on 29 April 2000 at the age of 65 of a heart attack. The second applicant submits that her death was brought about by the news of her only son's death.
28. On 7 February 2000 the Malgobek Town Court in Ingushetia, acting on a motion by the second applicant, certified the death of her brother, Adlan Akayev, which had occurred in Grozny on 20 January 2000. The court based its decision on statements of the applicant and two witnesses. They confirmed that his body had been found in Grozny in the courtyard of the Khashiyevs' house with numerous gunshot wounds and that he had been buried on 29 January 2000 in the village of Psedakh. Following the court's decision, the civil registration office of the Malgobek district in Ingushetia issued a death certificate for the second applicant's brother on 18 February 2000.
29. On 14 March 2000 the office of the Malgobek Town Prosecutor issued a paper to the first applicant certifying that on 10 February 2000 the dead body of his brother, Khamid Khashiyev, had been found in Grozny and that, given the numerous gunshot wounds to the head and body, his brother appeared to have died a violent death.
30. On 7 April 2000 the Malgobek Town Court in Ingushetia, at the first applicant's request, certified the deaths of Khamid Khashiyev, Lidiya Khashiyeva, Rizvan Taymeskhanov and Anzor Taymeskhanov, which had occurred in Grozny, Chechnya, on 19 January 2000. The court based its decision on statements by the applicant and two witnesses. The court noted in the decision that a criminal case had been opened and that an investigation was in progress (there is no evidence that a criminal case had been opened at that time). Following the court decision, the civil registration office of the Malgobek district in Ingushetia issued death certificates for the first applicant's four relatives on 19 April 2000.
31. The Government submitted a copy of investigation file no. 12038, opened on 3 May 2000 by the Grozny Town Prosecutor's Office following a publication entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000 about mass murder of civilians by the “205th brigade” in the Novaya Katayama settlement in Grozny on 19 January 2000. The relevant documents, as submitted by the Government, are listed below in Part B.
32. On 27 May 2000 the military prosecutor of military unit no. 20102 (the Russian federal military headquarters in Chechnya) informed the first applicant, in response to a complaint he had made on 5 April 2000 concerning the killing of his relatives, that, after a review by the prosecutor, no decision to open a criminal investigation had been taken for lack of corpus delicti in the actions of federal servicemen.
33. On 6 June 2000 the Malgobek Town Prosecutor informed the first applicant that criminal case no. 20540020, opened on 4 May 2000 into the deaths of Rizvan Taymeskhanov and Khamid Khashiyev, had been transferred on 15 May 2000 to the Republican Prosecutor in Ingushetia.
34. On 30 June 2000 the office of the Chief Military Prosecutor, in response to a request by the Memorial Human Rights Centre for information regarding the investigation into the second applicant's brother's death, forwarded this request to the Military Prosecutor of the Northern Caucasus.
35. On 17 July 2000 the second applicant was informed by a letter from the office of the Chief Military Prosecutor, addressed to the special prosecutor's office in the Northern Caucasus, that a “local prosecutor's office” was investigating the case of her brother's death.
36. On 20 July 2000 the Chief Military Prosecutor, in response to an enquiry from the NGO Human Rights Watch about violations of the rights of civilians in Grozny in December 1999 - January 2000, informed the NGO that the military prosecutors were investigating only one case - that of the murder and injury of two women – which was unconnected with the applicants. That investigation was still ongoing and was being supervised by the office of the Chief Military Prosecutor.
37. In September 2000 the two criminal cases opened at the applicants' requests were joined in the Grozny Town Prosecutor's Office with investigation no. 12038. This investigation was adjourned and reopened several times. The last document in the file submitted by the Government is dated 22 January 2003; in it the Deputy to the Chechnya Republican Prosecutor extended the period of investigation until 27 February 2003. The investigation carried out by the Grozny Town Prosecutor's Office focused on the version initially submitted by the applicants and by all witnesses whose statements had been produced, alleging that the killings were committed by a military detachment. The investigation failed to identify the detachment which was responsible and no one was charged with the crimes (see Part B below for a description of the documents in the investigation file).
38. In November 2000 the Presidium of the Supreme Court in Ingushetia rejected a request for supervisory review (protest) by the Republican Prosecutor, in which he sought to quash the decision of the Malgobek Town Court of 7 February 2000. Another request for supervisory review was made by the Deputy Chairman of the Supreme Court of the Russian Federation, and on 1 October 2001 the Supreme Court quashed the decision. The Supreme Court referred to Article 250 of the Russian Code of Civil Procedure, which states that those who request courts to establish facts of legal significance must indicate the reasons for that request. It found that the second applicant had failed to set out the reasons for which she sought “legal certification” of her brother's death. The case was remitted back to the Malgobek Town Court. On 27 November 2001 the Malgobek Town Court decided not to consider the case on the merits, since the second applicant had twice failed to appear for a hearing without valid reasons. The second applicant submits that she was not informed of the new set of proceedings in the Malgobek Town Court and that the summonses were not delivered to her.
39. At the end of 2002 the first applicant applied to a district court in Ingushetia seeking pecuniary and non-pecuniary damages from the Ministry of Finance. The applicant stated that his four relatives had been killed in Grozny in January 2000 by the military. He had found their bodies and had transported them with great difficulty to Ingushetia, where they were buried. A criminal investigation was opened, but failed to establish the servicemen responsible for the killings. Witness Nikolay G. testified to the court that he lived in the Staropromyslovskiy district not far from the applicant's family. In January 2000, about a month after the federal troops had established firm control over the district, he saw the servicemen leading Khamid Khashiyev and two of his nephews towards the garages. They were walking in front of an armoured personnel carrier (APC); armed soldiers were sitting on its hull. Soon afterwards he heard automatic rifle shots from the garages. When he attempted to go there, soldiers threatened him. He also submitted that he was threatened by someone from the prosecutor's office to “keep his mouth shut”. Other witnesses testified about the circumstances in which the bodies were discovered in Grozny, transported to Ingushetia and buried, and about the state of the bodies prior to burial.
40. On 26 February 2003 the Nazran District Court in Ingushetia partially granted the first applicant's claim and awarded him pecuniary and non-pecuniary damages in the amount of 675,000 roubles.
41. The court noted that it was common knowledge that the Staropromyslovskiy district was under the firm control of the Russian federal forces by the material time, and that this did not need to be proved. At that time only federal soldiers were able to travel about town on an APC and to conduct identity checks. That Lidiya Khashiyeva and Anzor Taymeskhanov had been killed during an identity check was corroborated by the fact that their bodies were found in the courtyard of their house with identity documents in their hands. The court further noted that the exact military unit responsible for the killings had not been established by the investigation, which had been adjourned on 8 June 2002. However, all military units were State bodies and therefore pecuniary damage should be paid by the State.
42. The decision was upheld at the final instance by the Ingushetia Supreme Court on 4 April 2003, and on 23 April 2003 the applicant was issued the writ of execution. The decision was not executed immediately because, as the Government submit, the applicant failed to present details of his bank account. On 29 December 2004 the applicant received the award in full.
43. In their submissions on the merits the Government stated that investigative measures continued in 2003. On 18 March 2003 the second applicant was recognised as a victim in the criminal proceedings. On 15 April 2003 additional forensic reports were prepared on the bodies of Khamid Khashiyev and Rizvan Taymeskhanov (presumably, on the basis of the existing descriptions of the bodies). Certain additional witnesses were questioned. The Government did not, however, submit copies of these documents to the Court.
44. The Government submit that the investigation into criminal case no. 12038 found itself in a “deadlock”, since it proved impossible to identify eye-witnesses to the killings.
45. The parties submitted numerous documents concerning the investigation into the killings. The main documents of relevance are as follows:
46. The Government submitted a copy of the investigation file in criminal case no. 12038, which comprises two volumes, and a list of documents contained therein. According to the list, the file contained 130 documents, of which 88 were submitted to the Court. On 7 March 2003 the Court reiterated its request to the Russian Government to submit a copy of the complete investigation file. The Government responded that the documents withheld were not relevant to the circumstances of the present case.
47. The most important documents contained in the file are as follows:
48. On 3 May 2000, following the publication of an article entitled “Freedom or Death” in the Novaya Gazeta newspaper on 27 April 2000, the investigator of the Grozny Town Prosecutor's Office opened a criminal investigation under Article 105 (a), (d), (e) and (j) of the Criminal Code “concerning mass murder by the '205th brigade' of civilian population in the Novaya Katayama settlement in Grozny on 19 January 2000”.
49. The case file contains the first applicant's brief statements of facts concerning his relatives' deaths and requests to conduct an investigation, dated 10 February 2000 (addressed to the Malgobek Town Prosecutor) and of 1 March 2000 (addressed to the Russian President).
50. In their further testimonies dated 5 May 2000 the first applicant and his sister Movlatkhan Bokova (born Khashiyeva) gave details concerning the discovery of their relatives' bodies. Both stated that on 25 January 2000 they had travelled to Grozny with Petimat Goygova, their neighbour from Grozny. On Ipronovskaya Street they met a local resident, Viskhan, who told them that their relatives had been taken away by federal soldiers. After discovering the three bodies at 107 Neftyanaya Street they returned to Ipronovskaya Street, where they met a group of soldiers who were taking things from a house and stacking them in a lorry. The first applicant asked the soldiers' help to remove the bodies, but one of them, who introduced himself as the commander, Dima, who was aged about 19 and dressed in camouflage, refused. When the applicant insisted and said that his sister and nephew had been killed, Dima said that the fighters had killed 32 soldiers and that the murders were an act of revenge on their part. The applicant lost his temper and started to curse, but one of the soldiers raised his gun and Movlatkhan stepped forward to protect him, then led him away. Both certified that they could have identified the house and “commander Dima”. They returned to Grozny on 28 January with a car, removed the bodies with the assistance of soldiers from a nearby roadblock and transported them to Ingushetia.
51. Movlatkhan Bokova further testified that she had washed Lidiya Khashiyeva's body before burial, and had seen numerous (about 20) stab and gunshot wounds on her body. Her left arm was broken and front teeth were missing. She further testified that Anzor Taymeskhanov's head bore numerous blow marks and that his jaw had been broken.
52. The first applicant and his sister also testified about their return to Grozny on 10 February 2000. They stated that they again met Viskhan, who told them that their relatives had been led away by soldiers towards the garages. They followed his directions and found three bodies, all frozen to the ground and with heavy wounds to the head. The first applicant took photographs of the bodies at the spot and went to fetch a car. On the same day they delivered the bodies to Ingushetia, where they were buried the following day, on 11 February 2000. They also stated that they had collected cartridges in the yard of 107 Neftyanaya Street which were still in their possession.
53. The first applicant's daughter, Raykhat Khashiyeva, accompanied her father and aunt on their trip to Grozny on 10 February 2000. In her statement of 10 May 2000 she confirmed their accounts regarding the discovery of the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov.
54. An examination of the bodies of Khamid Khashiyev and Rizvan Taymeskhanov was conducted by an investigator from the Malgobek Town Prosecutor's Office in the municipal morgue on 10 February 2000. The bodies were frozen, and the examination was conducted without removing the clothes. On 14 February 2000 two forensic reports were prepared by a forensic expert, based on the investigator's descriptions and without examining the bodies. The report stated that Khashiyev's body had eight gunshot wounds and that his death had been caused by a gunshot wound to the head. Taymeskhanov's body had eight gunshot wounds and his death also appeared to have been caused by numerous gunshot wounds to the head and body.
55. On 7 and 8 May 2000 the Malgobek Town Prosecutor's Office made a report and took photographs of other evidence in the case – identity documents of the deceased persons, photographs of the bodies taken by the first applicant and Rizvan Taymeskhanov's and Khamid Khashiyev's clothes.
56. On 5 May 2000 the first applicant was recognised as a victim in the criminal proceedings and he signed the notification thereof in the Malgobek Town Prosecutor's Office. On 15 June 2000 the same notification was signed at the Grozny Town Prosecutor's Office.
57. On 14 May 2000 U. and Y., two women residents of the Staropromyslovskiy district of Grozny, made statements. Both witnesses confirmed that they had seen the bodies of people who had been shot and that, at the relevant time, the district had been under the control of federal forces. Neither of them had witnessed the executions but referred to the “rumours” that the murders had been committed by federal troops. Both witnesses testified that they had seen soldiers looting abandoned houses in the district.
58. Two female relatives of Magomed Goygov, Petimat Goygova and M., made statements related to the circumstances surrounding the discovery of the bodies of Maryam Goygova, Magomed's mother, on 19 January 2000 at the intersection of Neftyanaya Street and 4th Lane, and Magomed Goygov, on 10 February 2000. Petimat testified that a man from the neighbourhood named Viskhan told her that their relatives had been killed by soldiers from the 205th infantry brigade from Budennovsk, and referred to two soldiers who had told him the same thing – one named Oleg, the other Dima. She also testified that on 21 January 2000, when they were taking Maryam Goygova's body to Ingushetia, they took along a wounded woman, Elena G., who had survived an attack by soldiers on 19 January and who was later taken to the Sunzhenskiy hospital in Ingushetia.
59. Several documents refer to a certain Yuriy Zh., whose family had resided at 130 Neftyanaya Street. From the witnesses' testimonies it appears that Yuriy Zh. left Grozny at the end of 1980s, while his parents (or aunt and uncle) lived at the said address. They had been killed in 1997 by Chechen fighters and their house had been occupied. The witnesses referred to “rumours” that Yuriy Zh. was among the soldiers involved in the killings and that he was motivated by revenge. The house at 130 Neftyanaya was destroyed during the fighting. Several requests for information about Yuriy Zh. were sent by the investigators to the military authorities and to the civil authorities of the neighbouring regions, but the answers to these requests were either negative or were not provided by the Government.
60. The journalist Anna Politkovskaya, author of the article “Freedom or Death”, was questioned on several occasions by the investigators. She testified that in February 2000 she was in Ingushetia and in the Staropromyslovskiy district of Grozny, where she had interviewed several witnesses of the massacre and the relatives of the deceased. In their interviews, several witnesses had referred to the “205th brigade” as being responsible for the murders.
61. In her statement by 12 July 2000, addressed to the Chief Military Prosecutor, the second applicant testified that on 25 January 2000 her brother's body had been found in the courtyard of the Khashiyevs' house by Magomed Khashiyev and his sister Movlatkhan. The second applicant saw her brother's body in Ingushetia and noted several gunshot wounds to his face, heart and abdomen. His left collar-bone was broken. His identity card from the Grozny Teaching Institute had been found in his hand, and his passport and other identity documents and two 50-rouble notes were in his pocket.
62. On 9 February 2000 the second applicant travelled to Grozny. In the courtyard at 107 Neftyanaya Street she picked up several cartridges from an automatic weapon and her brother's hat. On the same day the second applicant saw five dead bodies in a nearby garage, belonging to three women and two men. A sixth person from that group, Elena G., had survived the massacre and later told the applicant, who found her in a hospital in Ingushetia, that they were shot on 19 January by soldiers from the 205th brigade from Budennovsk. She also said that she had seen Adlan Akayev and the Khashiyevs in the evening of 19 January 2000 and that they were alive. On the same day she was picked up by the Goygovs, who had come to collect their dead, and taken to Ingushetia to a hospital. On 22 February 2000 the second applicant met with Omar S., who was at the material time living in Grozny, who had heard the members of the military talking in the commendatura of the Staropromyslovskiy district after 20 January that they had shot a “professor”. Omar's story was related in the article “Freedom or Death”.
63. On 22 August 2000 the Grozny Town Prosecutor's Office opened a criminal investigation into the killing of the second applicant's brother. On 5 September 2000 this investigation was joined with criminal case no. 12038 related to the mass murder in the Staropromyslovskiy district. On 5 September 2000 the deputy Grozny Town Prosecutor created an investigating group, made up of three investigators, to work on the case.
64. On 19 November 2000 the headquarters of the United Group Alignment (UGA) of the Ministry of Defence (based in Khankala) replied to the prosecutor's request and submitted a list of military units identified by five-digit numbers only, which had been deployed in Grozny between 5 January and 25 February 2000.
65. On 4 March 2001 an investigator from the Chechen Republican Prosecutor's Office sent a request to the military prosecutor of military unit no. 20102 (Khankala), asking to identify the exact temporary location of the military units at the relevant time, to identify the commanding officers and retrieve notes referring to operations in the Staropromyslovskiy district. The file reviewed by the Court contained no reply to that request.
66. At different stages of the proceedings several orders were produced by the Chechen Republican Prosecutor's Office enumerating the steps to be taken by the investigators. The order of 14 August 2001 listed ten persons whose bodies had been discovered in Novaya Katayama, including the applicants' relatives. On 16 January 2003 the same prosecutor's office ordered the investigators to establish possible places of burial of other civilians, to identify further witnesses and victims and to identify military units possibly responsible for the crimes.
67. A summary of the main steps of the investigation is given in the order by the Grozny Town Prosecutor dated 22 January 2003, which is the last document in the case-file. Criminal investigation file no. 12038 was started by the Grozny Town Prosecutor's Office on 3 May 2000 following the publication of the article “Freedom or Death” about mass murder in the Staropromyslovskiy district. On 4 May 2000 the Malgobek Town Prosecutor's Office in Ingushetia opened a criminal investigation following the first applicant's complaint concerning the killing of his relatives. On 23 July 2000 both criminal cases were joined as no. 12038. On 22 August 2000 the Grozny Town Prosecutor's Office opened a criminal investigation following the second applicant's complaint concerning the killing of her brother. On 5 September 2000 it was joined to criminal case no. 12038.
68. The case was adjourned seven times and the investigation was renewed on eight occasions. The file was transferred four times between the Grozny Town Prosecutor's Office and the Chechen Republican Prosecutor's Office. The document concludes with a list of tasks that should be carried out by the investigation team, including identification of the military units deployed in the Staropromyslovskiy district of Grozny at the relevant dates, identification of the burial places of civilians in the Novaya Katayama settlement, identification of witnesses and the victims of the crimes, etc.
69. The applicants submitted a number of additional documents relating to the circumstances of the killings and discovery of the bodies. The main documents of relevance are as follows:
70. The applicants submitted a statement by Christopher Mark Milroy, registered medical practitioner, Professor of Forensic Pathology at the University of Sheffield and Consultant Pathologist to the British Home Office. The statement was prepared on the basis of the applicants' submissions concerning the circumstances of their relatives' deaths and of eight colour photographs taken by the first applicant when the bodies of Khamid Khashiyev, Rizvan Taymeskhanov and Magomed Goygov were found.
71. The expert concluded that “the photographs show injuries in keeping with bullets fired from a high velocity rifle. ... High velocity rifles can cause significantly destructive injuries. Those unused to looking at injuries caused by these weapons may mistake the cause of injuries produced by these weapons.” He further listed a number of procedural steps normally taken in an examination of a body of a person who has died in suspicious circumstances. In the expert's opinion, these should include an x-ray of the body to identify and recover the projectiles and detailed examination and photographing of the external injuries, “as the pattern of injuries may indicate whether the victims were shot at close range or they had been tortured”.
72. In his letter dated 25 April 2003, Deputy General Prosecutor Mr Fridinsky replied to a request for information sent by Mr Kovalev, a member of the State Duma. The letter contains information relating to the prosecution of army servicemen in Chechnya for crimes committed against civilians. Since the beginning of the “counter-terrorist operation”, 58 indictments have been forwarded to the courts by the military prosecutors and 74 persons have been indicted. Of those, 12 cases concerned murder, 13 – theft, four – abuse of power, five – careless driving of military vehicles, etc. 51 persons were found guilty, of whom seven were officers, 22 were professional soldiers and sergeants, 19 were conscript soldiers and three were non-commissioned officers. In addition, the Chechen Republican Prosecutor's Office brought 17 charges against 29 servicemen of the Ministry of Interior for crimes against the civilian population. From the description attached to the letter it follows that, in the majority of cases, the sentences were conditional or were lifted in application of an amnesty.
73. A number of documents submitted by the applicants relate to the proceedings initiated by them in the domestic courts in order to have the facts of their relatives' deaths established.
74. On 5 April 2000 the first applicant submitted an application to the Malgobek Town Court in Ingushetia, seeking to have certified the facts of the deaths of his brother Khamid Khashiyev, his sister Lidiya Khashiyeva and his two nephews, Rizvan Taymeskhanov and Anzor Taymeskhanov. The first applicant submitted that his relatives had remained in Grozny during the winter of 1999 – 2000, while he and the rest of the family escaped the hostilities to Ingushetia. On 17 January 2000 the soldiers of the “205th battalion” of the federal army entered Staropromyslovskiy district and “committed outrages”. On 19 January 2000 they entered his sister's household and killed his relatives in a brutal fashion, causing numerous firearms and stab wounds. The first applicant learnt the details of the killings when he attended the funeral of a neighbour, Maryam Goygova. His relatives were buried in Ingushetia. A criminal investigation had been opened and was ongoing. The declaration of deaths was required to obtain death certificates from the civil registration office.
75. From the transcript of the hearing of 5 April 2000 it follows that the court heard the applicant, who repeated his statement, and two witnesses to the burial from the village of Voznesenskoye. They merely confirmed that the bodies had been brought to Voznesenskoye for burial and that they were aware that the killings had been committed by the federal soldiers. The court issued its decision on 7 April 2000.
76. On 3 February 2000 the second applicant submitted an application to the Malgobek Town Court, seeking to establish the fact of her brother's death. She submitted that her brother's body had been found in Grozny on 21 January 2000 in the vicinity of his house. His death was caused by numerous gunshot wounds. His body had been brought from Grozny and buried in the village of Psedakh in Ingushetia on 28 January 2000. The court decision certifying his death was required to obtain a death certificate from the civil registration office.
77. From the transcript of the hearing of 7 February 2000 it follows that the court heard the second applicant and two witnesses. The second applicant testified that in November 1999 she and her aunt (her mother's sister) had moved from Grozny to Ingushetia and lived with her mother in the village of Psedakh. Her brother Adlan remained in Grozny to look after the property. On 27 January 2000 Liza Khashiyeva and Raya Khashiyeva came to them and said that three bodies had been found in their family house in Grozny, and that one of them was her brother's. Her relative D. went to Grozny with the Khashiyevs and brought the body back. On 28 January 2000 her brother was buried in Psedakh.
78. Witness D. testified that she was a close relative of the second applicant's mother. On 27 January 2000 they were visited in Psedakh by the Khashiyevs who told them that the body of Adlan Akayev was in the courtyard of their house in Grozny. They identified him by his card from the Grozny Teaching Institute, where he had been the Head of the Physics department. On 28 January 2000 they brought his body to Psedakh and buried him. Another witness from Psedakh confirmed the fact of burial. The court issued its decision on 7 February 2000.
79. Article 20 of the Constitution of the Russian Federation protects the right to life.
80. 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.
81. Articles 52 and 53 provide that the rights of victims of crime and abuse of power shall be protected by the law. They are guaranteed access to the courts and compensation by the State for damage caused by the unlawful actions of a public authority.
82. Article 55 (3) provides for the restriction of rights and liberties by a 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.
83. 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.
84. 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.”
85. 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.”
86. 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.
87. 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.
88. 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.
89. The 1960 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.
90. 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 was entitled to submit evidence and bring motions. Once the investigation was complete the victim had full access to the case-file.
91. 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 the discovery by an investigating body, prosecutor or court of evidence that a crime had been committed.
92. 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.
93. Article 113 provided that, 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.
94. Article 126 provided that the 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.
95. Article 195 provided that a criminal investigation could be suspended, inter alia, if it was impossible to identify the persons who could be charged with the crime. In such cases, a reasoned decision was to be issued. No investigative actions were to be carried out once a case had been suspended. A suspended criminal case could be closed on expiry of the limitation period.
96. 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.
97. 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.
98. 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 serious intentional crimes, such as murder.
VIOLATED_ARTICLES: 13
2
3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-82610
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CZMARKO v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant was born in 1939 and lives in Vác.
5. The facts of the case as submitted by the parties, may be summarised as follows.
6. On 17 July 1997 the applicant's employment with the Vác Health Care School was terminated. He challenged the school's decision before the Budapest Labour Court. On 7 February 2001 the Labour Court dismissed his action. The applicant appealed.
7. On 14 September 2001 the Budapest Regional Court upheld the first-instance decision. The applicant lodged a petition for review with the Supreme Court. On 29 January 2003 the review bench of the Supreme Court finally dismissed his action. The applicant requested its re-opening, but to no avail.
8. In December 1999 the applicant, transporting medical equipment in his lorry, was halted at the Belarus border. While he was completing the necessary documents, the contents of his lorry were robbed. Purportedly in order to clarify the events, the Belarus authorities took the applicant into custody for approximately two weeks, after which he was allowed to return to Hungary.
9. On 23 September 2001 the applicant initiated a civil action in the Vác District Court against a Belarus official who had participated in the above events.
10. On 6 February 2003 the District Court informed the applicant that his case had been registered as a claim for compensation. In view of the fact that the case file had meanwhile been lost, it requested him to reproduce certain documents.
11. On 4 April 2003 the applicant again submitted his action.
12. On 20 April 2003 the District Court ordered the applicant to state his financial situation with a view to determining his request for legal aid. On 20 May 2003 the applicant submitted the necessary documents.
13. The case is still pending before the District Court.
14. In 1993 the applicant's luggage was lost during his flight to Canada. The applicant unsuccessfully requested the airline to compensate him.
15. On 23 September 2001 the applicant brought an action in compensation against the company. On 6 February 2003 the Vác District Court informed the applicant that that case file had been lost and requested him to reproduce certain documents.
16. The case is apparently is still pending before the District Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5217
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: DAHLSTRÖM v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Wilhelmina Thomassen
TEXT: The applicant is a Swedish national, born in 1935 and living in Östersund.
A.
On 13 June 1997 I., the then 15-year-old daughter of the applicant’s cohabitee, E., reported to the police that he had sexually harassed her. The local Social Welfare Committee then decided to take I. into public care on a provisional basis under the 1990 Care of Young Persons (Special Provisions) Act (lagen med särskilda bestämmelser om vård av unga).
The decision was upheld on 26 June 1997 by the County Administrative Court (länsrätten) of the County of Dalarna. E. appealed against this decision, but it was upheld by the Administrative Court of Appeal (kammarrätten) in Sundsvall on 16 July 1997.

The Social Welfare Committee later applied to the County Administrative Court for a care order under the 1990 Act. The applicant was summoned to give evidence but he was not a party to the proceedings as I. was not his child and he did not have custody of her. By judgment of 28 July 1997 the court granted the application, finding that the applicant had made sexual advances towards I. and verbally abused her.
Both the applicant and E. appealed to the Administrative Court of Appeal. The applicant claimed that the inferior court’s judgment contained false accusations against him. On 22 August 1997 the appellate court found that the applicant had no standing in the case and therefore dismissed his appeal. By judgment of 9 October 1997, the court rejected the appeal lodged by E., giving the following reasons:
(Translation)
“I. has, according to the [court], made a mature and credible impression. The information she has provided regarding the events and facts of relevance to the case is also in several respects supported by other circumstances and statements. The [court] finds that it must be considered to have been established in the case that [the applicant] on some occasions has kissed and caressed [I.] in a way which was improper with regard to the fact that they were in a stepfather–stepdaughter relation to each other. [I.] has recounted at least one of these occasions to [E.]. The information concerning how [E.] has reacted to this is not coherent but at least it is apparent that she has not taken [I.’s] allegations seriously, be it because she did not believe [I.] or because she did not find the matter called for action. In both these cases [E’s.] care for [I.] must, as stated by the County Administrative Court, be deemed to have been seriously lacking. It is true that some time has now passed since these events took place and that they seem not to have recurred since JanuaryFebruary1997. Furthermore, [I.] has now stated that she is no longer afraid of [the applicant]. However, the [court] finds that what has happened entails such a grave disloyalty to [I.] that it constitutes an apparent deficiency in the home of [E.] as long as [the applicant] resides there, even if it should be possible to prevent a recurrence. The facts further show that [I.] has been subjected to degrading treatment in the home. Firstly, she has been caused to undergo an abnormally strict control of her whereabouts, a control which to some extent amounted to a violation of her privacy. She has also been subjected to degrading epithets and accusations and [the applicant and E. have] also [made] mainly entirely unsubstantiated reports and requests [concerning I.’s behaviour] to school and police authorities. In these respects both [E.] and [the applicant] have, on several occasions, treated [I.] in a very peculiar way, as it appears often with [the applicant] as instigator. In sum, the [court] finds, with reference to the above, that there prevail such severe deficiencies in [I.’s] home that there must be deemed to exist a palpable risk of her mental health and social development being impaired if she, against her will, is forced to live with [E.] and [the applicant]. – [E.] is still cohabiting with [the applicant]. It is true that she has declared that she intends to leave him for a home of her own in Mora as soon as the opportunity occurs, but her intentions in that respect seem rather vague. She has also stated that, for the time being, she does not intend to discontinue her relationship with [the applicant], who will consequently be in her home whether she moves or not. Having regard hereto, the [court] finds that necessary care presently cannot be provided [I.] by [E.] and that [I.] therefore must be placed in a foster home. Since [E.] does not consent to such a measure there are, as the County Administrative Court has found, reasons for providing [I.] with care pursuant to [the 1990 Act]. Consequently, the appeal shall be rejected.”
On 22 October 1997 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal against the appellate court’s decision of 22 August 1997. On 23 December 1997 the Supreme Administrative Court found that he had no standing to appeal against the appellate court’s judgment of 28 July 1997 and thus dismissed his appeal in this respect.
On 8 September 1998 the applicant was informed by the Local Prosecution Office in Falun that he was going to be questioned regarding suspicions of having committed sexual harassment. On 25 October 1999 the applicant was informed that the Office had decided to terminate the preliminary investigation on the ground that it could not be proved that a crime had been committed.
B. Relevant domestic law
Care pursuant to the 1990 Act shall be provided for a young person under 18 years of age if one of the situations referred to in Sections 2 or 3 of the Act is at hand and the necessary care presumably cannot be given to the young person with the consent of the person having custody of him and, if the young person himself has reached the age of 15 years, with his own consent. According to Section 2 of the Act care shall be provided if there is a palpable risk of impairment of the health or development of the young person due to ill-treatment, exploitation, lack of care or any other condition in the home.
Decisions on whether to place a young person under public care are made by the County Administrative Court following an application from the Social Welfare Committee.
The concept of health or development in the 1990 Act was taken directly from the previous legislation in this area as a description of a person’s physical or mental health or development. The concept refers to situations where the young person is risking his physical health or where mental suffering is inflicted because of the situation in the home.
According to the travaux préparatoires to the 1990 Act the expression palpable or apparent risk (påtaglig risk) was deemed well suited for indicating at what level a compulsory care order could be justified. A subjective assumption that a young person is in danger is not enough and irrelevant circumstances such as public order must not be the basis of a care order. There has to be concrete or apparent circumstances supporting the fact that there is a risk for the young person’s physical or mental health (cf. Government Bill 1989/90:28, pp. 63 and 107).
According to Section 6 of the 1990 Act the Social Welfare Committee may order the immediate taking into care of a young person (“provisional care order”) if he probably needs to be provided with care under this Act and a court decision on the matter cannot be awaited owing to the risk to the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. A provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld awaiting the Court’s judgment regarding the application for public care.
According to Section 33, subsection 2 of the 1971 Administrative Court Procedure Act (förvaltningsprocesslagen) a decision made by a county administrative court or an administrative court of appeal may be appealed against by a person whom the decision concerns, provided that the decision affects him adversely.


ITEMID: 001-87412
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF HAJIBEYLI v. AZERBAIJAN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1960 and lives in Baku. The applicant’s surname was “Hajiyev” before he formally changed it to “Hajibeyli” on 29 April 2005.
6. The applicant was a politician and a member of the opposition. On 29 April 2000 the Democratic Congress of Azerbaijan, a political block uniting a number of opposition political parties, held a demonstration in Fuzuli Square in Baku. Earlier, the Baku City Executive Authority (“BCEA”) had refused to grant authorisation to hold the demonstration in Fuzuli Square, suggesting instead that the demonstration be held in another location further from the city centre. However, contrary to the BCEA’s decision, the organisers of the demonstration refused to change their plans and decided to gather their followers in Fuzuli Square.
7. Soon after the start of the demonstration, police units began arriving in the square with the aim of dispersing the crowd. It appears that the police and the crowd engaged in a series of violent clashes. According to the applicant, the police used excessive force. The applicant himself was beaten by the police in the square and taken to a police station.
8. On 30 April 2000 the applicant was charged with the administrative offence of obstructing the police and, on the same day, the Nasimi District Court sentenced him to ten days’ “administrative detention” in accordance with Article 174 of the Code of Administrative Offences.
9. At around the same time, the Nasimi and Yasamal District Prosecutor’s Offices instituted criminal proceedings in respect of the demonstrators’ obstruction of the police. On 2 May 2000 the case was transferred to the Baku City Prosecutor’s Office.
10. On 4 May 2000 the Baku City Prosecutor’s Office charged the applicant, together with ten other persons, with obstructing state officials by the actual or threatened use of force, an offence under Article 189-1 § 2 of the former Criminal Code, which was in force before 1 September 2000.
11. On the same date the investigator issued an order for the applicant’s detention on remand in connection with this criminal charge. Under the former Code of Criminal Procedure such a decision could be taken by an investigator, not a court.
12. On 23 May 2000 the applicant’s detention on remand was substituted by a preventive measure prohibiting him from leaving his place of residence. He was therefore released from detention.
13. Between April and June 2000 the investigators interrogated a number of witnesses in connection with the case. It appears that no major investigative acts were carried out subsequently.
14. On 25 January 2001 the Baku City Prosecutor’s Office decided to suspend the investigation in the applicant’s case because one of the coaccused, S.H., had absconded and he could not be located or his testimony obtained. Moreover, it was noted that at that stage of the investigation a number of other “accomplices to the offence” had not been identified. The prosecutor found that, in the absence of S.H. and other unidentifed accomplices, it was not possible to conclude the investigation and give a legal assessment of the acts of the co-accused, including the applicant. Therefore, the prosecutor decided to suspend the investigation until such time as S.H. and other accomplices were found and brought before the investigating authorities.
15. According to the applicant, he was not informed about the decision to suspend the proceedings and he only found out at a later, unspecified, date.
16. On 7 July 2004 the applicant filed a lawsuit with the Sabayil District Court complaining of the unlawfulness of the prosecutor’s actions and requesting the court to discontinue the proceedings. He complained that the criminal charges against him were unfounded and based solely on the testimony of police officers. He also complained that his case was still at the preliminary investigation stage despite the fact that the proceedings had been instituted four years earlier. No procedural act had been carried out during that period. He pointed out that he remained under an obligation not to leave his place of residence and, as a result, could not obtain an international passport or travel abroad on personal business.
17. On 23 August 2004 the Sabayil District Court dismissed the applicant’s complaint and upheld the prosecutor’s decision. In essence, it reiterated the prosecutor’s reasons for suspending the proceedings and found them lawful. Its decision was silent as to the applicant’s continued inability to leave his place of residence and obtain a passport. On 14 October 2004 the Court of Appeal upheld the Sabayil District Court’s decision. Under the domestic rules of criminal procedure, the Court of Appeal was the highest instance for appeals against procedural decisions of investigative authorities.
18. Following requests by the applicant to the Baku City Prosecutor’s Office to discontinue the proceedings, on 24 August 2005 the criminal investigation was resumed. On 6 September 2005 the prosecutor decided that the offence with which the applicant was charged under Article 189-1 § 2 of the former Criminal Code was to be recharacterised under Article 315.1 of the new Criminal Code, which had entered into force on 1 September 2000. Accordingly, the prosecutor issued a new indictment under Article 315.1 of the new Criminal Code.
19. On 14 September 2005 the prosecutor of the Baku City Prosecutor’s Office discontinued the proceedings in respect of the applicant because, in accordance with Article 44 § 3 of the former Criminal Code, the criminal charge against him had become time-barred five years after the date of the commission of the alleged offence. The prosecutor noted that, although under the relevant provisions of the new Criminal Code the same charges would have become time-barred only after seven years from the date of the offence, these provisions could not be applied retroactively in the present case as they would aggravate the applicant’s position. The prosecutor also lifted the preventive measure prohibiting the applicant from leaving his place of residence.
20. The applicant filed a complaint with the Sabail District Court against the prosecutor’s decision of 14 September 2005. He disagreed with the formal ground that had been given for discontinuing the proceedings, claiming that the proceedings should have been discontinued because of the lack of a criminal element in his actions.
21. On 24 October 2005 the Sabail District Court dismissed the applicant’s complaint. The applicant appealed. On 13 December 2005 the Court of Appeal upheld the Sabail District Court’s decision.
22. In accordance with the former Criminal Code of 1960, which was in force before 1 September 2000, the offence of obstructing state officials by the actual or threatened use of force was punishable by imprisonment for a term of up to five years (Article 189-1 § 2 of the former Criminal Code). Charges in respect of offences punishable by imprisonment for a term of up to five years became time-barred five years after the date of their commission (Article 44 § 3 of the former Criminal Code).
23. In accordance with the new Criminal Code of 1 September 2000, a provision of criminal law which aggravates the position of a person who has committed an offence shall have no retroactive effect (Article 10.4).
24. Offences are classified according to four levels of gravity: offences which do not pose a major public threat, less serious crimes, serious crimes, and especially serious crimes (Article 15 of the new Criminal Code). Offences punishable by a prison sentence of more than two years and up to five years are considered as “less serious crimes” (Articles 15.2 and 15.3 of the new Criminal Code). Charges in respect of “less serious crimes” become time-barred seven years after the date of their commission (Article 75.1.2 of the new Criminal Code).
25. The use of violence against, or the violent obstruction of, a state official acting in the course of his or her official duties, or the actual or threatened use of violence against the relatives of a state official is punishable by imprisonment for a term of up to three years, and accordingly constitutes a “less serious crime” (Article 315.1 of the new Criminal Code).
26. In accordance with the Code of Criminal Procedure (“CCrP”) of 1 September 2000, the investigator may suspend criminal proceedings if, inter alia, an accused has not been identified or has absconded (Articles 51.1.1, 51.1.3 and 277.1). If the criminal proceedings involve two or more accused persons and if the ground for the suspension of the proceedings does not apply to all of them, the investigator may either sever the relevant part of the proceedings and suspend it or suspend the whole proceedings (Article 53.4).
27. While the proceedings are suspended, the prosecution must carry out all procedural acts which can be carried out in the absence of the accused and take all necessary measures for finding him or her (Articles 53.5 and 277.5). The proceedings remain suspended until such time as the ground for the suspension ceases to exist (Article 53.6). The suspended proceedings must be discontinued when the criminal charges become time-barred, unless the accused is evading prosecution, or is charged with crimes punishable by life imprisonment or other grave crimes, such as crimes against humanity and war crimes (Article 53.7).
28. Article 154 of CCrP provides for ten types of preventive measures, including inter alia an obligation not to leave one’s place of residence (Article 154.2.4.). Preventive measures may be imposed by the preliminary investigator, an investigator, a supervising prosecutor or a court (Article 155.1).
29. The obligation not to leave the place of residence is a preventive measure under which the suspect or accused is required to give a written undertaking to remain at the disposal of the prosecuting authority, not to leave his or her place of residence (city, town, village or other type of settlement) without the prosecuting authority’s permission, not to abscond, not to engage in criminal activity, not to impede the investigation or judicial examination of the case, to comply with any summons issued by the prosecuting authorities and courts, and to inform them of any change of address (Article 165.1). The obligation not to leave the place of residence is imposed by the prosecuting authority (Article 165.2).
30. The maximum permitted length of an active pre-trial investigation in respect of a person charged with a “less serious crime” is nine months, including all possible extensions of the initial three-month investigation period (Articles 218.2.2, 218.6.2, 218.7.2, 218.8.2 and 218.10.2).
31. Complaints against the procedural acts and decisions of a prosecuting authority are subject to judicial review by a single judge of the relevant court of first instance (Articles 442.2.2, 442.3 and 449). A further appeal against a decision of the court of first instance may be lodged with an appellate court (Article 442.4). The decision of the appellate court is final and not subject to further appeal (Articles 453.10 and 454).
32. In accordance with section 1 of the Law on the Entry into and Departure from the Country and on Passports of 14 June 1994, the right of a person charged with a criminal offence to leave the country may be temporarily suspended until the end of the criminal proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1