ITEMID: 001-5220
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BOLLAN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The first and second applicants are British citizens, born in 1947 and 1948 respectively, and live in Alexandria, Scotland. The third applicant is a British citizen born in 1994 and lives at the same address as the first and second applicant. The first applicant was the stepfather of Angela Bollan, the second applicant was her mother and the third applicant her daughter.
The applicants are represented before the Court by Cairns Brown, solicitors practising in Dumbarton, Scotland.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
Angela Bollan was born on 5 March 1977. She died, aged 19, on 26 April 1996 from asphyxia caused by self-suspension whilst on remand at HM Prison Cornton Vale (“Cornton Vale”) awaiting sentence for an offence of theft.
Angela Bollan was a heroin addict by the time she gave birth to her daughter, the third applicant, on 2 September 1994. As she was unable to care for the child, the third applicant lived with her grandparents. Until the age of 16, she lived with the first and second applicant, after which she moved out to live with friends. She was given the tenancy of a local authority house next door to the first and second applicants. She kept in close touch with them and the third applicant.
Angela Bollan had a number of convictions for shoplifting and breach of the peace, and had passed several spells in drug rehabilitation clinics. She had been held on remand in Cornton Vale on three occasions prior to her final remand on 15 April 1996 - 9 February 1995 to 24 February 1995, 5 February to 6 February 1996, and 27 February 1996 to 19 March 1996. In December 1995, the deceased went to a drug rehabilitation centre but she left after 3 weeks before completing the programme. In March 1996, she was readmitted to the centre and stayed until 9 April 1996 when she again left early.
On 12 April 1996, Angela Bollan was arrested on charges of theft and vandalism. On appearance at Glasgow District Court on 15 April 1996, she pleaded guilty and was remanded in custody for Social Enquiry Reports. She was due back in court on 3 May 1996 for sentencing. She was remanded in Cornton Vale in the block used for remand prisoners.
On arrival in Cornton Vale, Angela Bollan was seen by a nurse. She was seen by a doctor on the day after admission and assessed again. According to the Prevention of Suicide Policy, each prisoner on admission is assessed as to the likelihood of being suicidal. Angela Bollan claimed, as on previous admissions, that she had taken heroin and was vulnerable to withdrawal symptoms. She was prescribed the relevant medicine. She was not found to present any risks of suicide.
On 26 April 1996, Angela Bollan was woken up in the normal way by a prison officer at about 7.15 a.m. She was allowed out of her cell for breakfast and to go to the toilet and wash. Afterwards, she was asked to clean a corridor. The prison officer asked her to do it again properly. She complied. She was then locked in her cell again. The mail for the unit was distributed. There was none for Angela Bollan. She did not go that morning to the medical officer to receive her medication, diazepam, a drug substitute.
From 10.00 a.m., prisoners who wished were taken under supervision to the canteen to make purchases. Angela Bollan had no money and remained in her cell as was the routine. Generally, when prisoners were brought back from the canteen, they were placed under supervision in the sitting room where they were joined by prisoners brought from their cells for the period immediately preceding lunch.
At about 11.10 a.m. the deceased started kicking her cell door. Prison Officer Taylor asked what was wrong and she said she wanted to know why she could not get out of her cell. Prison Officer Taylor explained she would get out when there was enough staff back from canteen escort duty. As he walked away, she kicked the door a couple of times. He returned and told her she would be kept in the cell for a bit longer for kicking the door again. Angela Bollan replied, “That’s fine”.
At 11.30 a.m. Prison Officer Taylor met the Residential Officer for Angela Bollan’s unit and told him about her behaviour. He was concerned as this was not like her usual behaviour but did not consider it a serious situation. He did not think that it amounted to a disciplinary offence and did not tell her that she was being punished. The Residential Officer went up to Angela Bollan’s cell and found her lying on her bunk. He told her that she would remain in her cell until she calmed down, probably until the midday meal was ready. He told her that she would not be put on report. Angela Bollan shrugged her shoulders, seemed angry and tense but did not say anything in reply. The Residential Officer returned to his office and was then called to another unit soon after midday. He did not mention Angela Bollan to his supervisor or anyone else. He overlooked her.
Later, after 12.30 p.m., Prison Officer Taylor was serving dinners to the inmates and noticed towards the end of lunch that he had not seen Angela Bollan come for lunch. He went to her cell at about 12.50 p.m., unlocked the door and found her hanging from the window. The subsequent attempts at resuscitation failed and Angela Bollan was declared dead at about 1.24 p.m.
Angela Bollan had not previously been involved in disciplinary incidents in the prison.
In a period of two years, there had been six suicides in Cornton Vale and therefore, in January 1997, the Procurator Fiscal set up a Fatal Accident Inquiry which was delayed due to a further suicide at the prison. The inquiry lasted 36 days and the determination by the Sheriff was dated 18 November 1997.
The Sheriff found the cause of death of Angela Bollan to be asphyxia due to hanging, and the verdict was suicide. The Sheriff did not make any determination about the reasonable precautions whereby her death might have been avoided, nor about any defects in the prison system which contributed to her death. The Sheriff did however make various general determinations in respect of the systems in place at the prison, including proposals for improving procedures to prevent suicide which were relevant to the other cases under consideration.
In his determination the Sheriff stated:
“The weight of the evidence was clearly that <Angela Bollan> was forward looking, expressed a desire to obtain a house for herself and her child and gave no indication that she had any desire or impulse to kill herself. ...
... It was ... accepted by <counsel for the applicants> that certainly up until the final day of her life <Angela Bollan> did not present as a likely person to commit suicide ...
Looking at the evidence as to what <the deceased> did it is clear that it did not amount to a breach of discipline meriting a report to the Governor. If that is correct then <counsel for the applicants> would argue that the Officers were at fault in keeping <the deceased > in her cell at a time when other prisoners were in free association. The two officers did not consider they were operating in terms of the Rules ... .What they did say they were doing was giving her a “cooling-off period”. ...
It was a practice whereby somebody who created a scene or a fuss which of itself did not merit a Governor’s report was left in her cell or put in her cell for a short period to calm down. It was not part of any official code of practice ... It was known to the Governor and Assistant Governor. They accepted it as a necessary part of the discretion in each Officer in carrying out his or her duties of control.
On one view <the deceased> was not locked up for operational reasons, for example in the course of a security alert. On the other hand if cooling-off was used as a tool by Officers to quell situations and calm people down then in my view it was a valid exercise of the Governor’s powers exercised through the Prison Officers. The evidence from the Officers was not clear. They changed from a cooling-off period through an alternative to a Report to a punishment. I fully accept that Officers might in the course of their duties have to put prisoners in cells for disciplinary reasons to keep order and so on. It may be a fine distinction but it is one which in my view has to be made. I am of the view that Prison Officers do not have the power to mete out punishment. They do not in my mind have the right to impose periods behind doors as a punishment for some minor infraction of the Rules. It is one thing to say to a prisoner: “Now I’m going to keep you in your cell for a bit to let you calm down.” It is quite another matter to say: “Because you are creating a fuss ... I will punish you by keeping you in your cell for 20 minutes.” It seems to me that the Prison Officer does not have the power to behave as in the second example. ...
... Some time was spent on considering the consequences of <the deceased> missing her medication in the morning. The weight of the evidence was that it would have made little or no difference to her physical condition or her state of mind. ...
I cannot set out any reasonable precautions which might have prevented the death of <the deceased> ... I cannot set out any defects in the system which contributed to her death. I do not know why <the deceased> killed herself. ...
I make a composite determination in terms of Section 6 (1)(e) of the <Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976< as follows: - ...
3. In relation to <Angela Bollan>, <the Residential Officer> had no power to inflict punishment upon her; therefore insofar as he imposed a further period behind the door as a punishment he was acting incorrectly.”
On 29 April 1999, the applicants commenced an action in the Stirling Sheriff Court, claiming on behalf of the third applicant damages for loss of society of her mother and loss of support due to the negligence and breach of statutory duties by Scottish Prison Service employees. It is claimed, inter alia, that the officers had no right to keep Angela Bollan locked in as a punishment and that if she had been reported to the Governor under rule 95, instead of being left in her cell until lunchtime, she would not have taken her own life.
The applicants requested an adjournment, agreed by the court, in order to apply for legal aid. An opinion as to causation was obtained from Queen’s Counsel. Legal aid was refused. An application for review of that refusal was rejected. The applicants state that without funding the action will proceed no further.
B. Relevant domestic law and practice
Prison disciplinary provisions
The principal statute regulating the management of prisons is the Prisons (Scotland) Act 1989. This provides that the Secretary of State is responsible for prisons and is empowered to appoint governors and officers to run them. He is empowered to make rules for the regulation of prisons and the control of persons detained in them.
The relevant rules in this case are The Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the Rules”).
The management of a prison and supervision of prisoners is vested in the Governor (Rule 78(1)). Officers act under the authority of the governor in carrying out the daily tasks of running the prison (Rule 3).
Part 9 of the Rules deals with security and control. In particular, by Rule 80, the Governor may order in writing that a prisoner be removed from association with other prisoners where it seems desirable for the purpose of maintaining good order and discipline, protecting the interests of any prisoner or ensuring the safety of other persons. An order may be general or related to a specific activity. If general, it shall not be effective for more than 72 hours without the written authority of the Secretary of State. An authority granted by the Secretary of State may not exceed one month but may be renewed. Where the order relates to a specific activity, it may not exceed 72 hours but the Governor may make a further order, subject to weekly review.
By Rule 83, the Governor may order that a prisoner be restrained by means of a body belt if it seems necessary to restrain a prisoner who threatens to injure, or is injuring himself or others; who threatens to damage, or is damaging property or who threatens to create or is creating a disturbance. The medical officer must be advised of the use of a body belt. If he does not concur, the belt must be removed.
By Rule 85, the Governor may order the temporary confinement in a special cell of any prisoner who is refractory or acting in a violent manner. Such confinement must last no longer than necessary and in any event not more than 24 hours. Notice of it must be given to a medical officer and the prisoner must be visited once every fifteen minutes. A special cell is other than one normally occupied by the prisoner, and having special facilities for observation.
Part 10 of the Rules deals with breaches of discipline. Rule 94, interpreted in accordance with Schedule 3, indicates a range of behaviours, including conduct disrespectful to an officer, use of threatening, abusive or insulting words or behaviour, refusal to obey a lawful order or failure to comply with any rule or regulation. Rule 95 provides that the officer to whose notice it has come shall report every suspected breach of discipline to the Governor, who may then order that the prisoner be removed from association, such removal save in exceptional circumstances, to last no longer than 72 hours. Rule 96 provides that a charge of breach of discipline shall be brought as soon as possible and in any event within 48 hours. The prisoner must have written notice of the charge at least two hours prior to the inquiry. Rule 96 further provides for the Governor to hear an inquiry into a charge. The prisoner must have full details of the charge, receive a full opportunity to present his own case, call witnesses on his own behalf and cross-examine witnesses. In exceptional cases the Governor may allow the prisoner legal representation. Rule 100 provides for punishment, including a caution, a forfeiture of privileges and postponement of the release date. Rule 111, in Part 11, provides for appeals to the Secretary of State, on findings of guilt and sentence.
Complaint procedures available to prisoners
Part 11 of the Rules deals with requests and complaints.
By Rule 102, a prisoner may ask to speak to an officer of the Secretary of State, a member of the Visiting Committee or a sheriff or justice of the peace who is visiting the prison. Rule 103 provides that a prisoner wishing to complain to the Visiting Committee shall be given paper and his letter posted without delay.
Rules 104 to 109 provide a system whereby a prisoner may complain firstly to a residential officer, then to the residential unit manager and then to an internal complaints committee, from there to the Governor and finally to the Secretary of State.
A Scottish Prison Complaints Commissioner operates outside the statutory framework to hear complaints by prisoners.
Prisoners alleging a breach of the rules may challenge decisions of the Governor or officers acting on his behalf by way of judicial review proceedings in the Court of Session.
Domestic case-law on confinement within prison
In the case of Hague v. Deputy Governor of Parkhurst Prison and others, and Weldon v. the Home Office (1991 3 AER 734) the House of Lords held concerning the complaints of prisoners that their liberty had been unlawfully restricted by measures taken within the prison:
“He is lawfully committed to prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.”


ITEMID: 001-66963
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: OLAH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Józsefné Oláh, is a Hungarian national, who was born in 1972 and lives in Ózd. She is represented before the Court by Mr I. Furmann, a lawyer practising in Miskolc, who also assists “the Legal Defence Bureau for National and Ethnic Minorities” (hereafter the “NEKI”). The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is of Roma origin, as was her late husband, Mr Oláh.
The other person involved in the case, Sergeant L.T. was born in 1970. In 1996 he joined the Budapest VI/VII District Police Department. Following ten months' training, he received his firearm in January 1997.
On 24 July 1997 at around 10.30 p.m. Mr Oláh, accompanied by an accomplice, broke the window of a car parked some fifteen metres from the French Embassy in Budapest and stole the radio.
That night Sergeant L.T. was on guard in front of the Embassy. Having noticed Mr Oláh and his accomplice, he left his sentry-box. Seeing a police officer in uniform approach, Mr Oláh handed the car radio to his accomplice and both men started to run.
Sergeant L.T. ordered them to stop. Mr Oláh and his accomplice looked back but kept running. Sergeant L.T. drew a gun and started to pursue them from a distance of some twenty metres. During the chase, he saw a shiny object in the hand of one of the fugitives. In a nearby street he again ordered them to stop. When they failed to do so, he fired a warning shot. Some time later he again ordered them to stop and fired a second warning shot. After some one hundred metres, Sergeant L.T. lost sight of them. Following a tip-off from an eye-witness (E. B.), Sergeant L.T. went through the gateway to a house in order to search for them.
The gateway opened up onto a yard which was crossed by a path. To the right of the path, there was a garden; the entrance door to the building was located to the left of the path. Mr Oláh hid himself by the entrance door; his accomplice was lying in the garden. The visibility in the yard, which was not lit, was one metre. Sergeant L.T. crossed the path holding his firearm in his right hand. As Sergeant L.T. passed by, Mr Oláh, leaning forward, made a sudden move towards him. Sergeant L.T. stepped aside, turned towards Mr Oláh and – holding his firearm at a height of some 1.2 metres – fired a non-targeted shot at him from a distance of 1.6 metres.
The bullet entered the right side of Mr Oláh's chest between the sixth and seventh rib, in a downward direction. It passed through the liver and exited through the tenth rib, finally lodging itself in the entrance door at a height of 130.5 centimetres.
Mr Oláh collapsed. Sergeant L.T. got his handcuffs ready, but having noticed that Mr Oláh's injuries were serious he decided that it was not necessary to use them. At this point the eye-witness E.B. arrived. Sergeant L.T. asked him to call an ambulance and continued his search for Mr Oláh's accomplice.
The ambulance arrived and transported Mr Oláh to the National Institute for Traumatology at 11.21 p.m. where he underwent surgery. On 26 July 1997 he died due to circulatory and respiratory failure caused by haemorrhagic shock.
Meanwhile, on 24 July 1997 at 11.30 p.m. the police inspected the scene of the incident and arrested Mr Oláh's accomplice who was still hiding in the grass. Outside the house where the incident took place, they found the two spent cartridges from the warning shots; the spent cartridge from the lethal shot was found in the yard, as was the stolen radio.
On 25 July 1997 Sergeant L.T. reported the events to the Head of the Budapest VI/VII District Police Department. He maintained that, during the chase and, again, immediately before firing the lethal shot, he had seen a shiny object in Mr Oláh's hand. He had perceived the latter's sudden move away from the door towards him as an attack, probably with a knife. He further deposed that he had intended to shoot Mr Oláh in his thigh in self-defence.
Subsequently, administrative proceedings were instituted against Sergeant L.T. with a view to examining the lawfulness of his use of his weapon. The opinion of a forensic weapons expert was also obtained. On 28 July 1997 the Head of the District Police Department discontinued these proceedings on the ground that “according to the information obtained, the police officer had used his firearm lawfully and professionally”. In the decision, it was established that although Sergeant L.T.'s shot had been aimed at Mr Oláh's thigh, Mr Oláh had in fact been hit on the trunk, because he had been in the act of descending the stairs leading from the entrance door.
On 5 August 1997 the applicant, represented by Mr Furmann, lodged a complaint challenging the administrative decision. In reaction to this complaint, the Budapest Police Department suspended the proceedings pending the outcome of the criminal proceedings initiated against Sergeant L.T. (see below). Following Sergeant L.T.'s acquittal, the District Police Department discontinued the administrative proceedings on 21 February 2000. The applicant was informed of this decision.
Subsequent to Mr Oláh's death, a second administrative procedure was opened in order to establish the circumstances of the death. On 30 July 1997 an autopsy was carried out by two forensic pathologists. On 2 September 1997 the Budapest V District Police Department discontinued the proceedings, having regard to the competent authority's conclusion that Sergeant L.T.'s use of his firearm had been lawful and to the finding that there was no appearance of any medical negligence in the treatment administered to Mr Oláh. The applicant was informed of this decision.
Subsequently, criminal proceedings were instituted against Sergeant L.T. on a charge of homicide. On 1 August 1997 Mr Furmann requested the Investigation Office of the Budapest Regional Public Prosecutor's Office to inform him about the state of these proceedings. On 5 August 1997 Mr Furmann submitted to the Budapest Investigation Office a power of attorney signed by Mr Oláh's mother.
Meanwhile, a reporter and a cameraman from Hungarian Television who had been working at the scene of the incident on 24 July 1997 submitted a video and an audiotape recording of a conversation with Mr Oláh's accomplice about a knife found lying on the ground nearby. Both men were heard as witnesses on 1 and 11 August 1997, respectively.
Two further witnesses were heard on 15 September 1997. One of them (E.B.) was the eye-witness who had given the tip-off to Sergeant L.T. and had been asked by Sergeant L.T. to call an ambulance; the other (Z.K.) lived in the house where the incident occurred.
On 29 September 1997 Mr Furmann submitted two expert opinions which had been prepared at the request of the NEKI.
On 30 September 1997 the Investigation Office appointed a forensic medical expert who submitted his opinion on 15 October 1997.
On 8 October 1997 the Investigation Office appointed a forensic weapons expert who submitted his opinion on 27 October 1997. The opinion was based on an on-site demonstration.
On 14 October 1997 the National Ambulance Service deposed that it had been called at 10.39 p.m. on the evening of the incident. On 29 October and 3 November 1997 the ambulance driver, the doctor and her assistant were heard as witnesses.
On 3 November 1997 Mr Oláh's accomplice failed to appear at the Investigation Office where he was to be heard as a witness. He was eventually heard on 22 January 1998.
On 19 November 1997 Sergeant L.T. was questioned by the Investigation Office as a suspect.
A further on-site demonstration, attended by Mr Furmann, was held at 10.10 p.m. on 9 December 1997 in order to check the visibility conditions.
On 30 December 1997 the National Service of Meteorology submitted information on the visibility conditions at the time of the incident.
On 10 March 1998 Mr Furmann again requested information about the proceedings. On 19 March 1998 he was informed that the investigation had been completed and that the case had been transferred to the Budapest Public Prosecutor's Office.
On 6 May 1998 the Public Prosecutor's Office preferred a bill of indictment against Sergeant L.T. charging him with homicide.
On 8 July 1998 the Regional Court heard Sergeant L.T., a witness (Z.K.), the ambulance doctor, the cameraman and the forensic weapons expert. Mr Furmann had not been notified in advance of this hearing. On the same day Mr Furmann sent a letter to the presiding judge requesting that he be notified about the date of the next hearing. In his reply the presiding judge dismissed the request on the ground that Mr Furmann and his client, Mr Oláh's mother, could not be regarded as a party to the criminal proceedings in accordance with sections 53, 55 and 57 of the Code of Criminal Procedure.
Nevertheless, the judge informed Mr Furmann of the dates of the subsequent hearings.
At 12.10 p.m. on 13 July 1998 the Regional Court conducted an on-site inspection of the scene of the incident.
The next hearing was held on 28 September 1998. The reporter, another journalist, the eye-witness E.B., four police officers and Mr Oláh's accomplice were heard as witnesses.
Another hearing was held on 23 November 1998. On that occasion four police officers and the ambulance assistant were heard as witnesses.
At the next hearing on 11 December 1998 the forensic medical expert and the weapons expert were heard. The parties presented their closing arguments. The public prosecutor proposed that Sergeant L.T. be acquitted by virtue of section 29(2) of the Criminal Code. He argued that the defendant should not be punished because he had been acting lawfully in self-defence even though he had exceeded the necessary force (elhárítás szükséges mértékének túllépése) in the circumstances. According to the public prosecutor, Sergeant L.T. could not have assessed properly the situation with which he was confronted on account of his fear and, given the circumstances, his over-reaction was justified. The public prosecutor however observed that the lawfulness of the use of a firearm in itself did not preclude the commission of a crime and referred to sections 15(1) and 17(2) of the Police Act in this connection.
Counsel for the defence pleaded that Sergeant L.T should be acquitted primarily on the ground of the absence of any danger to society and hence the absence of a crime or, alternatively, by reason of lawful self-defence.
On the same date the Regional Court acquitted Sergeant L.T., applying section 10(2) of the Criminal Code. The court found it impossible to determine whether Mr Oláh had been armed at the time of the incident. In particular, it remained unclear whether Mr Oláh or his accomplice had had an object in their hands and, if so, whether that object had been a knife, the stolen radio or an object which the offenders had been using to smash the car window. The court observed that the knife apparently found during the inspection of the scene had been lost and could no longer be located in police storage.
Moreover, the court, relying on the opinions of the weapons expert and the two forensic pathologists, considered it proven that Mr Oláh had been shot while leaning or moving forward, rather than standing or hiding. Given that it was almost completely dark at the time of the incident, the court accepted that Sergeant L.T. could not properly decipher Mr Oláh's intention when the latter moved towards him.
The Regional Court was satisfied that the defendant's action did not constitute a crime. Under sections 52(1) and 54(k) of the Police Act, he had been free to use his gun to avert an attack directed against his life or bodily integrity. His action had therefore not been “materially illegal” (materiális jogellenesség), that is, dangerous to society. In these circumstances, no criminal act had been committed – a conclusion which allowed the court to dispense with the examination of the question of self-defence, in particular whether it was lawful self-defence or excessive.
The public prosecutor appealed against this judgment, requesting that the defendant be acquitted under section 29(2) of the Criminal Code. Subsequently, the public prosecutor withdrew the appeal. Consequently, on 1 June 1999 the Regional Court's judgment became final.
On 8 January 1999 Mr Furmann requested a copy of the Regional Court's judgment. On 13 October 1999 Mr Furmann, submitting a power of attorney signed by the applicant on 1 October 1999, requested a copy of the case file from the Regional Court. He stated that the case file was needed in order to introduce an application with the European Court of Human Rights. On 20 October 1999 the Regional Court dismissed Mr Furmann's request on the ground that the applicant had not been a party to the criminal proceedings. On 2 November 1999 Mr Furmann appealed against this decision. He relied on the Convention and made references to the Court's case-law under Article 6 on the principle of equality of arms in criminal proceedings.
On 6 December 1999 the Supreme Court dismissed the appeal holding that there was no connection between the cases referred to and the applicant's request for a copy of the case file. It was satisfied that the rejection of the request did not hinder the applicant's exercise of her right to lodge an application with the European Court of Human Rights.
(1) Liability for damage caused in the sphere of State administration shall be established only if the damage could not have been be prevented by ordinary legal remedies or if the injured party has had recourse to ordinary legal remedies appropriate for preventing the damage.
(3) These rules shall also apply to liability for damage caused in the judicial and prosecution spheres, unless otherwise provided by statute.
(1) Any person who does an act which is necessary in order to prevent an unlawful attack against himself or another person, his own goods, or those of other persons, or against the public interest, or an unlawful attack directly threatening the above, shall not be liable to punishment.
(2) A person shall not be punished either if he exceeds the necessary measure of prevention because he is unable to appreciate it due to fear or justifiable excitement (menthető felindulás).
(3) The punishment may, without limitation, be mitigated if the perpetrator is restricted in appreciating the necessary degree of prevention through fear or justifiable excitement.
(1) A criminal act is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which is dangerous to society and in respect of which the law imposes punishment.
(2) An act or omission shall be deemed an act of danger to society if it violates or endangers the State, the social or economic order of the Republic of Hungary, a person or the rights of citizens.
(1) The actions of the police shall not be such as to cause prejudice which is clearly disproportionate to the legitimate aim of the action.
(2) If there exists several possible and appropriate actions or coercive measures in a given situation, the act or measure chosen should be the one which, besides ensuring efficiency, entails the least restriction, injury or damage to the person concerned.
(2) During police actions, in the application of coercive measures, the infliction of injuries or deprivation of life should be avoided as far as possible. ...
A police officer may use his firearm: ...
(k) in order to avert an attack directed against his own life, bodily integrity or personal freedom.
(1) A victim is a party whose rights or lawful interests have been infringed or endangered by the offence.
(2) The victim:
(a) may be present at any procedural acts carried out during the investigation, provided that the victim's presence is permitted by this Act, or during the trial, unless this Act states otherwise;
(b) may have access to documents concerning him/her after the conclusion of the investigation,
(c) may, at any stage of the proceedings, file motions or observations, and request information on his/her procedural rights and obligations,
(d) may submit questions to be put to those heard at the hearing and may take the floor.
(1) A civil party is a victim who files a civil-law claim for determination in the criminal proceedings.
(5) In the event of the victim's death, his/her heir may become a civil party. However, the rights set out in section 53 will be applicable only in relation to the proof of the civil-law claim.
(1) If possible, the court shall decide on the merits of the civil-law claim in the judgment or decision terminating the criminal proceedings. If this procedure delays the criminal proceedings significantly, the court may redirect the civil-law claim to other courts.
(1) Copies of documents from the criminal case-files shall be issued to the ... civil party ... and his/her representative at their request.


ITEMID: 001-81908
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MUSAYEV AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 7. The applicants are:
(1) Yusup Said-Aliyevich Musayev, born in 1940;
(2) Suleyman Anarbekovich Magomadov, born in 1957;
(3) Tamara Saidovna Magomadova, born in 1953;
(4) Malika Alviyevna Labazanova, born in 1955;
(5) Khasan Magomedovich Abdulmazhidov, born in 1940.
They are residents of Grozny, Chechnya.
8. The submissions of the parties on the facts concerning the circumstances of the applicants' relatives' deaths and the ensuing investigations are set out in Part A below. A description of the materials submitted to the Court is contained in Parts B and C below.
9. The applicant's families lived in a settlement referred to by local residents as Novye Aldy, located administratively in the Oktyabrskiy and Zavodskoy districts of Grozny.
10. In October 1999 hostilities resumed in Chechnya between the Russian forces and the Chechen fighters. Grozny and its suburbs came under heavy bombardment. From late December 1999 northern parts of the city came under the control of the Russian forces. At the end of January the central parts of the city were taken over by the Russian troops. The first applicant submitted that from 23 January 2000 their district in the south of the city was no longer shelled, because the Russian troops had been stationed about 500 metres away, in Okruzhnaya Street. According to the first applicant, there were no Chechen fighters in Novye Aldy, because there were no large administrative buildings which they could have used as defence positions.
11. In the winter of 1999 to 2000 the first applicant and several members of his extended family remained in Grozny. The first applicant lived at 116 Voronezhskaya Street. Several of his relatives lived in the neighbourhood. According to the applicant, most of the over 6,000 persons who had lived in Novye Aldy before the hostilities fled, and only a few hundred remained, mostly elderly people.
12. The first applicant submitted that on 4 February 2000 the Russian forces had entered Novye Aldy. Armoured personnel carriers (APCs) and other military vehicles were stationed at crossroads, and the settlement was surrounded and blocked from all sides. Large groups of military servicemen went from one house to another, checking documents and inspecting the cellars and lofts of the buildings. According to the first applicant, they behaved in an orderly and polite fashion. In the evening the soldiers left, having warned several inhabitants to stay inside and to beware of a certain military unit which might come the following day.
13. Early in the morning on 5 February 2000 the first applicant heard shots from automatic guns in the neighbourhood. He was at his cousins' house at 122 Voronezhskaya Street with his three cousins, Khasan Musayev, Aindi Akhmadov and Umar Musayev.
14. Another of the applicant's cousins, Abdurakhman Musayev, rushed into the courtyard and told them that early in the morning he had gone with his two nephews, Suleyman Musayev and Yakub Musayev, to fetch some water from a well. On their way back with a sledge loaded with several water cans they were stopped by a group of Russian soldiers who ordered them to approach. Abdurakhman Musayev, who had been walking behind his nephews, managed to escape unseen. He was very worried about their safety. Abdurakhman and Umar Musayev went outside to look for them. This was the last time they had been seen alive.
15. Soon afterwards their neighbour Aba M., who was about 80 years old, came into the courtyard with her 13-year-old grandson Suleyman and told them that in their street, in front of house no. 112, there were two bodies. The first applicant and his cousins were afraid that these might be their cousins.
16. Several minutes later a group of servicemen entered the courtyard, shouting and firing from automatic weapons. They ordered the men, including the 13-year-old Suleyman, to lie down in the snow. They then searched the house and the courtyard, having ordered Aba M. to walk in front of them. After about half an hour, while the first applicant and others were still lying on the ground, the servicemen “calmed down” and the most senior among them, about 35-40 years old, ordered them to leave. The first applicant, worried about his cousins and nephews, asked for permission to go into the street and to look at the two bodies. The servicemen ordered him to stay inside “unless he wanted to be lying beside them”. They then proceeded into Umar Musayev's house, next door on Voronezhskaya Street.
17. For the following few hours there was continued gunfire all around, and the first applicant did not dare to go outside. After about 3 p.m. he heard cries from women in the street and went out. He saw his cousin Malika Ganayeva and her daughter Larisa, screaming. They had found six bodies in the street, all of them shot dead. Four bodies were in a pile on the corner of Voronezhskaya Street and Khoperskaya Street. They were Alvi Ganayev, Malika Ganayeva's husband, and their two sons, Aslanbek and Salambek. The fourth body was the first applicant's cousin Abdurakhman Musayev. In front of the house at 112 Voronezhskaya Street were the bodies of Umar Musayev, another of the first applicant's cousins, and Vakha Khakimov, a neighbour.
18. The first applicant, his relatives and neighbours started to take the bodies inside the yards. A group of soldiers were still standing at the intersection of Voronezhskaya Street and Khoperskaya Street, and one of them fired a single shot which wounded Ramzan Elmurzayev, a neighbour. He fell down, and other neighbours pulled him inside the courtyard. He died of his wound in the early hours of the following day.
19. In the late afternoon on the same day the first applicant noticed that the house of his relative Yakub Musayev at 118 Voronezhskaya Street was on fire. Together with some neighbours they tried to extinguish the flames, but it was too late and the house burnt down entirely.
20. At about 8 p.m. the same day a relative came and said that they had found the bodies of Suleyman Musayev and Yakub Musayev, the first applicant's relatives who had been missing since the morning, when they had gone to fetch water from a well. Their bodies were found in front of the house at 22 Khoperskaya Street. The first applicant submitted that they had been shot by an automatic gun and a sub-machine gun, because Suleyman's shoulder was twisted. The first applicant dragged the bodies into the courtyard of a neighbouring house, and the next morning took them to the house at 116 Voronezhskaya Street, using a sledge.
21. On 5 February 2000 the first applicant was thus a witness to nine killings, seven of the deceased being his relatives. They were:
(1) Umar Musayev, born in 1938;
(2) Yakub Musayev, born in 1949;
(3) Abdurakhman Musayev, born in 1949;
(4) Suleyman Musayev, born in 1965;
(5) Alvi Ganayev, born in 1938;
(6) Salambek Ganayev, born in 1969;
(7) Aslanbek Ganayev, born in 1965.
22. The first applicant put the bodies of his relatives in the courtyard of the house at 112 Voronezhskaya Street. Contrary to local tradition, the applicant and his relatives did not bury the bodies on the same day because they were afraid to go to the cemetery, but also, as some witnesses stated, because they were waiting for some form of investigation into the killings.
23. On 7 February 2000 a group of servicemen arrived at Novye Aldy. They went around the settlement and checked documents. They asked why the bodies had not yet been buried, and the first applicant replied that they were afraid to go to the cemetery. The servicemen allegedly advised him to hurry up with the burials and left.
24. On 8 February 2000 a military Ural truck with soldiers came to the first applicant's house at 116 Voronezhskaya Street. The applicant submitted that some of the soldiers were the same ones who had been involved in the killings of 5 February. The first applicant tried to enter his courtyard, but the servicemen fired shots in the air and told him not to approach. They took out anything of value from his and his cousin's house, stacked it into the truck and left. The first applicant watched their actions from a neighbour's house, but could not distinguish the registration plates of the vehicle, which were covered with mud.
25. On 9 February 2000 a Russian human-rights activist, Viktor Popkov, was in Novye Aldy and filmed the bodies of the first applicant's relatives and interviews by the first applicant, by Malika Ganayeva (the first applicant's cousin, whose husband and two sons had been killed on 5 February 2000), and by other survivors of the massacre. The first applicant submitted a copy of the videotape and a transcript of the recording.
26. On 10 February 2000 there came a group of men in uniform, who said they had come from the Chechnya Prosecutor's Office. They inspected the bodies still lying at house no. 112, filled in some papers and collected evidence. The first applicant gave them two automatic-rifle bullets extracted from the bodies of Suleyman Musayev and Yakub Musayev, and cartridges and bullets collected at the execution sites. The officers assured him that there would be an expert report on them.
27. On 12 February 2000 a new group of servicemen arrived. They said that they were from the military prosecutor's office for the Northern Caucasus. They too examined the bodies at 112 Voronezhskaya Street and collected more bullets and cartridges.
28. The first applicant submitted that among the evidence collected by the investigators there was an identification card apparently dropped by a serviceman in Khoperskaya Street and a note written by one group of soldiers to his neighbours on 5 February 2000 in order to “protect” them. The first applicant has submitted a copy of that note.
29. On 12 February 2000 the first applicant and his relatives buried the dead.
30. He submitted that until the end of February 2000 groups of officials continued to come to Novye Aldy, asking the residents about the events.
31. On 23 May 2000 the Civil Registration Office of the Zavodskoy district of Grozny issued death certificates for Alvi Ganayev, Aslanbek Ganayev, Salambek Ganayev and Suleyman Musayev.
32. The first applicant submitted a hand-drawn plan of Novye Aldy with indications of the places to which he referred. He also submitted statements by Aba M., by the parents of Suleyman Musayev and by a neighbour, Markha T., who was a witness to the killings in Voronezhskaya Street.
33. The first applicant submitted that the events of February 2000 had affected him deeply. He had undergone several courses of treatment in Chechnya and in Moscow, but despite that he could not sleep, and suffered from headaches and depression.
34. The second and third applicants submitted that in the winter of 1999 to 2000 they had stayed in Ingushetia because of the fighting in Grozny. Their relatives had remained in Grozny to look after the family property. They were Salman Magomadov (born in 1940), the husband of the third applicant and the second applicant's brother, and Abdula Magomadov (born in 1947), the second applicant's other brother. They stayed in their house at 158 Mazayeva Street. The third applicant and Salman Magomadov had been married since 1981 and had five daughters, born in 1973, 1979, 1980, 1985 and 1990.
35. On 5 February 2000 Russian forces conducted an operation in Novye Aldy, as a result of which numerous houses were burnt and civilians killed. The neighbours later told the applicants that the soldiers had started at 176 Mazayeva Street and had gone into the houses, killed the inhabitants and set fire to the houses one by one.
36. On 10 February 2000 their three neighbours Z., S. and Ya. examined the burnt-out house at 158 Mazayeva Street, and discovered the remains of Salman and Abdula Magomadov in the cellar. They dug them out from the debris and buried them in the courtyard. The applicants learnt of this while in Ingushetia.
37. Several days later the second applicant came to Grozny, alerted by the neighbours. In the cellar of the house he discovered some personal belongings of his brothers – a wristwatch, keys from a flat, a key from a garage and parts of clothes. He also found several bullets from a 5.45-mm calibre automatic rifle and machine-gun cartridges. At the end of March the remains of the second applicant's brothers were buried at the local cemetery.
38. On 19 May 2000 the Civil Registration Office of the Zavodskoy district of Grozny issued death certificates for Salman Anarbekovich Magomadov, aged 59, and Abdula Anarbekovich Magomadov, aged 52. The deaths had occurred on 5 February 2000 in Grozny as a result of numerous bullet wounds to the head and body.
39. The fourth and the fifth applicants are wife and husband. During the winter of 1999 to 2000 they remained in Grozny in their house at no. 20, 3rd Tsimlyanskiy Lane. Within the same courtyard in a separate house there lived the fifth applicant's sister and brother, Zina Abdulmezhidova (born in 1940) and Khuseyn Abdulmezhidov (born in 1953).
40. On 4 February 2000 in the afternoon Russian troops entered the settlement of Novye Aldy. The residents, who had been hiding in cellars during the months of shelling, went into the streets. The soldiers instructed them to remain at their homes in accordance with the registration of their places of residence, because on the following day there would be a “mopping-up” operation (зачистка). The fourth applicant submitted that they had eagerly awaited the end of fighting and the entry of the Russian troops and did not worry about the checking of passports.
41. On 5 February 2000 at about 11 a.m. four servicemen came into the applicants' house. They were aged about 25-30. They greeted the applicants, checked the passports and left. The fourth applicant then decided to visit her husband's relatives, the Abdulkhanovs, who lived at 135 Mazayeva Street, to see if the “mopping-up” had finished there. Through backyards she arrived at the Abdulkhanovs' house.
42. When she reached their house she met Akhmed Abdulkhanov, aged 70, sitting in the courtyard. He told her that they had been visited three times and that there were dead bodies everywhere in the street. The fourth applicant opened the gates and saw four bodies of their neighbours, an 80-year-old man, two women and a 50-year-old man, each one at the gates of their houses. The fourth applicant suggested that Akhmed take the bodies inside, but he said that the soldiers might return.
43. The fourth applicant returned to her house and told her husband, the fifth applicant, and his relatives about what she had seen. She also suggested that they should all go into the cellar and hide because even women and old men had been killed, but they refused. Zina Abdulmezhidova told her that they had been checked already and had nothing to fear. The fifth applicant went to a neighbour's house.
44. At about 3 p.m. the fourth applicant heard some loud noise and swearing in the courtyard and opened the door. Zina Abdulmezhidova and Khuseyn Abdulmezhidov also came out and stood in the doorway of their house. In the courtyard there were several soldiers. One of them, tall and dressed in white camouflage, asked the fourth applicant what she was doing there, and she replied that she lived there.
45. They brought Akhmed Abdulkhanov from Mazayeva Street with them. He was pale and his lips were blue. He asked the fourth applicant to get some money. She said that they had no money, and had they had any, they would have left as everyone else had. Then the soldiers started to fire in the air and said that they would kill them all, as they had been ordered.
46. The fourth applicant ran to her neighbours and managed to obtain 300 roubles. She gave the money to the soldier in white camouflage, but he laughed at her and said it was not enough. The fourth applicant gave him her golden earrings. The servicemen were shouting that they had an order to kill them all and ordered one of the soldiers to take the fourth applicant into the house and to “shake her” there.
47. The fourth applicant let the soldier inside the house, ran behind his back and hid behind the heater. The soldier walked up to her and pointed the automatic gun at her head. She fell on her knees and pleaded for her life. The soldier told her that he would be killed if he did not kill her. Then they heard shooting in the courtyard and a male voice shouting. The soldier in the room shot at the ceiling and at the walls, and the fourth applicant realised that he had spared her life. She started to cry and thank him, but he told her to keep quiet and walked out.
48. The fourth applicant heard Khuseyn Abdulmezhidov shouting to his sister to bring his documents, and then more shots were fired. She later realised that the soldiers had first shot Akhmed Abulkhanov in the courtyard, and when her husband's sister and brother saw this, they had run into their house. Khuseyn Abdulmezhidov had been registered as disabled and the applicant guessed that he had wanted to produce the relevant papers. Khuseyn Abdulmezhidov and Zina Abdulmezhidova were shot inside the house.
49. In the meantime the fourth applicant heard her husband, the fifth applicant, calling her from the backyard. She understood that he had heard the noise and shooting in the house and returned. The fourth applicant approached the door and cried in Chechen “Go away”, and her husband escaped unseen by soldiers.
50. Before leaving, the soldiers set the Abdulmezhidovs' house on fire. Their house and barn, with sheep and cows inside, burnt down.
51. Later the fourth and the fifth applicant buried the remains of the fifth applicant's relatives in the courtyard.
52. On 16 May 2000 the Civil Registration Office of the Zavodskoy district of Grozny issued death certificates for Zina Magomedovna Abdulmezhidova, aged 59, and for Khuseyn Magomedovich Abdulmezhidov, aged 46. In both certificates it was recorded that the deaths had occurred on 5 February 2000 in Grozny, as result of numerous bullet wounds to the head and body.
53. The fourth applicant submitted that she had been deeply affected by the events of 5 February 2000, and that her health had deteriorated significantly. She suffered from hypertension and nightmares.
54. Soon after the events the first applicant and other relatives of the victims set up a group called the Aldy Civic Committee, in order to coordinate their efforts in the aftermath of the massacre. The fourth applicant was elected as the head of this group.
55. The applicants submitted that on 5 February 2000 at least 60 civilians had been killed in the neighbouring settlements of Novye Aldy and Chernorechye in the southern suburbs of Grozny. They referred to the Human Rights Watch report of June 2000 entitled “February 5: A Day of Slaughter in Novye Aldy”, which put the blame for the extrajudicial executions on the Russian special police forces (OMON) and the military. The document reported the deaths of the applicants' relatives, on the basis of interviews with the applicants and their neighbours. They also referred to the Memorial Human Rights Centre report entitled “'Mopping-Up'. Settlement of Novye Aldy, 5 February 2000 – Deliberate Crimes against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 – преднамеренные преступления против мирного населения), which listed the applicants' relatives and neighbours among 56 civilians murdered on that day (see Part B below).
56. The applicants also submitted a number of press reports relating to the massacre in Novye Aldy and the subsequent investigation.
57. It appears that the applicants did not seek any direct contact with law-enforcement bodies or with doctors immediately after the killings or when they buried the remains of their relatives. Nevertheless, the events in Novye Aldy became known to the relevant authorities shortly after 5 February 2000 as a result of NGO and media reports.
58. On 5 March 2000 the Grozny Town Prosecutor's Office opened a criminal investigation into the murder of several inhabitants of the Novye Aldy settlement in Grozny by “unidentified men armed with guns”, and into the looting of property. The investigation was opened under Article 105, paragraph 2, of the Criminal Code (murder of two or more persons with aggravating circumstances).
59. On 25 March 2000 Memorial wrote a letter to the Chief Military Prosecutor about the investigation into the massacre in Novye Aldy. It referred to the conclusions of the military prosecutors that “no federal servicemen took part in the operation which entailed civilians' deaths”. Referring to the witnesses' statements, Memorial argued that there were valid reasons to conduct a more detailed investigation into the identity of the perpetrators. Memorial appended to its letter several witness statements it had obtained in March 2000 in Novye Aldy and a list of 67 names of persons apparently killed on that day.
60. On 27 March 2000 the fifth applicant was granted victim status in the proceedings in case no. 12011-2000 in relation to the murder of his brother Khuseyn Abdulmezhidov “by detachments of the Ministry of the Interior of the Russian Federation”. That decision was not countersigned by the fifth applicant.
61. On 6 April 2000 the Chief Military Prosecutor replied to Memorial that its letter of 25 March 2000 had been forwarded to the military prosecutor's office for the Northern Caucasus for investigation.
62. On 21 April 2000 the Military Prosecutor of the Northern Caucasus Military Circuit replied to Memorial and stated that a military prosecutor had conducted a verification of its submissions and on 3 March 2000 had refused to open a criminal investigation owing to the absence of corpus delicti in the servicemen's actions. The letter further explained that no servicemen of the Ministry of the Interior or the Ministry of Defence, who fell under the supervision of the military prosecutor, had taken part in the operation in Novye Aldy on that date. The so-called “mopping-up” operation on 5-10 February 2000 in Novye Aldy had been conducted by servicemen of the special police forces (OMON) from St Petersburg and the Ryazan Region, and the investigation should be carried out by the Grozny Town Prosecutor. All further complaints and letters should be addressed to that office.
63. On 11 May 2000 the Chief Military Prosecutor replied to a member of the State Duma, Mr Kovalev, about the investigation into the Aldy killings. The prosecutor informed him that a criminal investigation was pending and that the investigation had been slowed down by the difficult security situation in the region and by the need to identify witnesses to the crimes.
64. On 9 June 2000 the military prosecutor of military unit no. 20102 (located in Khankala, the main Russian military base in Chechnya) informed the NGO Memorial, in response to its requests for information about a number of alleged crimes committed by the military against civilians, that all material pertaining to the murders in Novye Aldy had been forwarded to the Northern Caucasus Department of the Prosecutor General's Office.
65. On 10 September 2000 the Aldy Committee issued a public statement in which it deplored the murders of 5 February 2000, the absence of an effective investigation and the lack of any assistance to the victims.
66. On 1 December 2000 the Aldy Committee sent a letter to the President of the Russian Federation, the speakers of the State Duma and the Council of the Federation, the Prime Minister and other public figures. The letter described the events of 5 February 2000 and asked for an efficient investigation, and also for any kind of urgent assistance to the survivors whose houses had been burnt down or plundered.
67. On 1 December 2000 the fourth applicant, on behalf of the Aldy Committee, wrote to the Prosecutor General. The letter stated that the relatives of those killed had no information about the progress of the investigation, despite the fact that they had agreed to the exhumation of their relatives' bodies, in breach of their religious beliefs. They asked him to take urgent measures to carry out a proper investigation, to question the witnesses and to inform them about its progress.
68. On an unspecified date in 2000 an investigator from the Northern Caucasus Department of the Prosecutor General's Office issued certificates to the relatives of those killed in Novye Aldy. They contained identical printed text, with only the names of the deceased entered by hand. They read as follows: “On 5 February 2000 in the morning in the settlement of Novye Aldy of the Zavodskoy district of Grozny, Chechen Republic, the forces of the Ministry of Defence and of the Ministry of the Interior during a passport check committed mass murders of civilians of the above settlement, including ____. This event is being investigated by the Northern Caucasus Department of the Prosecutor General's Office”. The first applicant submitted such certificates issued in respect of Suleyman Musayev, Aslanbek Ganayev, Salambek Ganayev and Alvi Ganayev. Similar certificates were issued in respect of the other applicants' relatives.
69. On 10 January 2002 Memorial requested the Chechnya Prosecutor to provide it with an update on the investigation into the Aldy killings.
70. On 19 June 2002 the Chechnya Prosecutor forwarded Memorial's request to the Northern Caucasus Department of the Prosecutor General's Office and stated that the file in case no. 12011 had been referred to that office in March 2000.
71. On 18 July 2002 the Chechnya Prosecutor informed Memorial that criminal investigation no. 12011, “opened on 5 March 2000 in relation to the killings committed in Grozny on 10 January 2000”, had been transferred to the Northern Caucasus Department of the Prosecutor General's Office. All further requests should be addressed to that office.
72. On 22 August 2002 the Prosecutor General's Department for the Southern Federal Circuit forwarded Memorial's letter to the Chechnya Prosecutor with a request for information about the investigation in criminal case no. 12011, concerning “a murder in Grozny on 10 January 2000”.
73. On 14 January 2003 Memorial again requested information from the Prosecutor General about the investigation. No reply was received to that request.
74. On 19 November 2003 and on 14 January 2004 Memorial again sought an update on the investigation from the Prosecutor General. At the same time it sought an explanation as to why no answers had been given to its previous requests. The first letter requested the prosecutor to provide a list of those killed, to list the persons who had been granted victim status in the proceedings and questioned as witnesses, to specify whether there had been a decision to adjourn or reopen the investigation and to grant access to the case file.
75. On 17 April 2004 the Chechnya Prosecutor's Office replied to Memorial that the file in criminal case no. 12011 was under investigation and that no results could be made public before the conclusion of the investigation. It further stated that no explanation could be provided for the failures to reply, because persons who had earlier been responsible for the case file no longer worked in that office.
76. On unspecified dates more than 50 persons from Novye Aldy signed applications to the President of Russia and the speaker of the State Duma. They called for an investigation into their relatives' deaths and for the identification of the servicemen who had committed the murders.
77. The applicants submitted that they had not been properly questioned by the investigators. They were not aware which prosecutor's office was responsible for the investigation and had not been informed about its progress and therefore could not appeal against the investigator's actions.
78. In September 2004 the applications to the Court in the present case were communicated to the Russian Government, who were requested at that time to submit a copy of the file on the investigation in case no. 12011, opened in relation to the killings in Novye Aldy. The Government refused to do so, because the file contained information of a military nature and personal data relating to the witnesses. They referred to Article 161 of the Code of Criminal Procedure. At the same time, the Government suggested that a Court delegation could have access to the file at the place of the preliminary investigation, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”.
79. In December 2005 the Court declared the applications admissible and reiterated its request for the file. In April 2006 the Government submitted a copy of the file as summarised below, as well as updated information concerning the progress of the investigation. In their memorials the Government stated that the investigation had established that on 5 February 2000 a group of armed persons wearing camouflage uniforms had killed more than 50 inhabitants of the Novye Aldy settlement. It had also established that on 5 February 2000 a special operation had been carried out in Novye Aldy by servicemen of the special police forces (OMON) from St Petersburg. The investigation was pending and no final conclusions as to the identity of the perpetrators had been reached. At some point the investigation had been transferred from the Grozny Prosecutor's Office to the Northern Caucasus Department of the Prosecutor General's Office and then to the Chechnya Prosecutor's Office. During the investigation 33 bodies had been exhumed and subjected to a forensic examination, which had confirmed burns and gunshot wounds. A number of other investigative steps had been taken, such as an examination of the sites and ballistics reports (see Part B below for a description of the documents in the investigation file).
80. It appears from the information submitted by the Government and some of the documents in the case file that the applicants and other relatives of the victims were questioned. However, the case file submitted by the Government does not contain full copies of any of the witness statements, except for one transcript of the third applicant's questioning in May 2004. These transcripts are also not mentioned in the list of documents contained in the investigation file. At the same time, the Government submitted that the investigation body had questioned 143 persons and granted victim status to 44 persons.
81. In their memorials the Government revealed additional information about the proceedings, which is not contained in the documents submitted by them. As appears from these submissions, only the first, third and fifth applicants had been granted victim status in the proceedings. The second and the fourth had not been granted victim status and apparently had not sought it.
82. The Government stated that in March and April 2004 over 50 persons had been invited to participate in the investigative measures. However, the first, second and fifth applicants had not appeared when summoned. The Government did not specify the nature of these measures. In June 2005 a photo identification had taken place with one of the victims (there is no information about the results of this measure). In April 2004 the investigators in charge of the criminal case had attempted to identify, through the relevant archives the units of the army (Ministry of Defence), or of the Ministry of the Interior that had possibly been involved in the special operations in Grozny from 4 to 10 February 2000. According to the Government, no meaningful results had been obtained.
83. As it appears, the investigation did not identify the detachments which had been involved in the security operation in Novye Aldy and no one was charged with any crime. The investigation was adjourned on several occasions owing to the failure to identify the culprits, and was then resumed. The most recent decision to resume the investigation was issued by the Chechnya Deputy Prosecutor on 7 February 2006.
84. The Government submitted a copy of the investigation file in criminal case no. 12011, which comprised four volumes (over 800 pages) and a list of the documents contained in the file. The most important of these documents can be summarised as follows.
85. On 5 March 2000 the Grozny Town Prosecutor's Office opened a criminal investigation into the killing of inhabitants of the settlement of Novye Aldy in the Zavodskoy district of Grozny and the looting of property. The decision referred to Article 105, paragraph 2, of the Criminal Code. On 18 March 2000 an investigative group was set up, composed of the officers of the Northern Caucasus Department of the Prosecutor General's Office, the Chechnya Prosecutor's Office and the Grozny Town Prosecutor's Office.
86. On 22 March 2000 a number of relatives of the victims submitted similarly worded requests to the Grozny Town Prosecutor's Office. They stated that on 5 February 2000 their relatives had been shot by unknown persons wearing camouflage, and asked for an investigation to be carried out. One application was submitted by Valid M., the second applicant's brother, who had complained about the killing of his brothers Salman and Abdula Magomadov.
87. In March and April 2000 the investigation requested the Zavodskoy Temporary Department of the Interior (VOVD) to find and question a number of local residents in Novye Aldy about the killings of 5 February 2000 and to collect additional information about those who had been killed. These requests were later repeated.
88. Between March and May 2000 the investigation body questioned and granted victim status to 17 relatives of the deceased. In many cases the degree of kinship was not indicated. The case file examined by the Court does not include any of the witness statements presumably made by the relatives.
89. In April 2003 the Zavodskoy District Department of the Interior (ROVD) informed the prosecutor that it had not been able to identify any witnesses to the crimes in the district. Many relatives of the victims had left and it was impossible to locate them.
90. In March 2004 a lawyer practising in Moscow requested the investigation to allow him to participate in the proceedings. He submitted powers of attorney from 32 members of the families of the victims. In April 2004 he was granted leave to take part in the proceedings. He was also informed that the persons who had victim status in the proceedings would be questioned again and informed of the possibility of submitting claims for damages. On 13 June 2004 the lawyer died in Moscow, and it does not appear that another representative was subsequently appointed.
91. On 12 May 2004 the third applicant was questioned. She described the known circumstances of the deaths of her husband and his brother. She also explained that Valid M., who had been granted victim status in the proceedings, had died in January 2004; she also requested to be granted victim status.
92. Between 2004 and 2005 the investigation questioned and granted victim status to 12 other persons, including at least one eyewitness to the events who had been forced to give her earrings to the soldiers.
93. On 31 March 2000 the investigators examined the area at the intersection of Voronezhskaya Street and Khoperskaya Street in Novye Aldy and the courtyard of the house at 112 Voronezhskaya Street. The local residents stated that on 5 February 2000 six persons had been killed in front of that house. The investigation noted about 20 bullet holes in the gates of the house. No bullets or cartridges were found.
94. On 23 March 2000 the investigation examined the location and exhumed the bodies of the first applicant's three relatives, Alvi Ganayev, Salambek Ganayev and Aslanbek Ganayev, as well their neighbour Ramzan Elmurzayev, who had been buried in the courtyard of the house at 102 Bryanskaya Street.
95. On 4 April 2000 the investigation examined the site at 160 Matasha Mazayeva Street and exhumed the burnt remains of the second applicant's two brothers, Salman and Abdula Magomadov.
96. In addition to that, between 23 March and 4 April 2000 the investigators examined several other locations in Novye Aldy and Chernorechye, indicated by the local residents. They exhumed and described the remains of several persons who had been buried by their relatives in the courtyards of the houses, as well as numerous bullets and cartridges.
97. The reports were accompanied by photographs of the sites and sketches of the area. After the exhumations and the drawing up of the reports, the bodies were buried at the local cemetery.
98. It appears that in April 2000 several relatives of the victims, including the fifth applicant, refused to allow the exhumation and forensic analysis of their relatives' bodies, referring to religious traditions and the decision of the local council of elders. However, later their agreement was obtained and the exhumations and forensic reports were carried out.
99. In April and May 2000 the investigation exhumed in the courtyards and at the cemetery 32 bodies of persons who had been killed on 5 February 2000, including the applicants' relatives. The exhumations took place in the presence of the relatives and forensic experts, and the results were documented on video and in photographs.
100. The forensic experts were asked to resolve questions relating to the cause and date of the victims' deaths. In late April 2000 a forensic expert reported numerous lethal fire wounds. The expert reported that the bodies of the second applicant's two brothers, Salman and Abdula Magomadov, had been incinerated, as a result of which no proper conclusions about the circumstances of the deaths could be reached.
101. In May and June 2000 the investigation ordered 30 new forensic reports, seeking further details relating to the dates and circumstances of the deaths. In June and July 2000 forensic experts in Stavropol issued additional reports based on the previous descriptions of the bodies. The reports concluded that the date of the deaths could have been 5 February 2000 and described in greater detail the numerous bullet wounds caused to the bodies, many of them to the head.
102. On 4 and 5 May 2000 an investigator from the Grozny Town Prosecutor's Office ordered ballistics reports on the cartridges and bullets collected at the site.
103. In May and June 2000 the ballistics experts concluded that the cartridges and bullets had been used by several Kalashnikov sub-machine guns or modified versions, of 7.62 mm and 5.45 mm calibre. Several rifle bullets were also found. Some of the bullets were found to be suitable for identifying the particular guns used. The experts also reported that some of the bullets and cartridges bore serial numbers, which could allow the year and place of their production to be traced. All the bullets and cartridges were sent for further checks through the Ministry of the Interior's federal database of bullets and cartridges (containing data about firearms involved in crimes or lost service firearms).
104. In April 2004 the investigation authority informed the head of the St Petersburg and Leningrad Region Department of the Interior that it had been established that on 5 February 2000 the special operation in the settlement of Novye Aldy had been carried out by servicemen of the OMON for that region. The investigation body requested him to assist in identifying the firearms that could have been involved in the crime by submitting examples of shots from over 400 different firearms. This request was again sent in June 2004 to an investigator at the St Petersburg Prosecutor's Office. It is not clear if these analyses were carried out.
105. In March 2000 the investigation collected from the local residents a passport found at the place of the shooting. They also collected a handwritten note issued by a group of servicemen to the residents.
106. The owner of the passport was located in the Krasnodar Region and questioned. He stated that from 1995 to 1996 he had worked in Grozny as a construction worker. His passport had been stolen there in 1996, and he had later obtained a new one. In January 1999 he had had an accident in Krasnodar, as a result of which he had become severely disabled. He had not been to Chechnya since 1996. His statements were corroborated by a number of other testimonies and documentary evidence.
107. The handwritten note was examined on 2 April 2000. It said: “Guys! We were here, regiment no. 245. [These are] normal people, not fighters. Have mercy on them. Commander of MSR [motorised rifle company] no. 6 Snr Lt of the grd [Senior Lieutenant of the Guard]” and contained an unclear signature. It does not appear that any further action was taken in the light of that note, including the identification of the military unit in question.
108. It follows from the relevant prosecutors' orders that at some time in 2004 the investigation collected a complete list of servicemen of the OMON from St Petersburg and the Leningrad Region who had been stationed in Chechnya in early February 2000, as well as their photographs, with a view to carrying out an identification. It is unclear whether the identification took place.
109. The case file submitted by the Government contains extracts of more than 20 testimonies collected in October and November 2000 from the servicemen of the special police forces (OMON) from St Petersburg, but no full copies of any of these statements. From the extracts contained in the file it appears that they all submitted, almost word for word, that in early February 2000 they had participated in an operation in Novye Aldy and that their detachment had not used any vehicles. They stated that they were not aware of the killing of civilians in Novye Aldy.
110. The investigation was carried out by the Chechnya Prosecutor's Office. It appears that between 5 March 2000 and 7 February 2006 the case was adjourned and reopened ten times. The most recent document in the case file, dated 7 February 2006, informed the victims about the resumption of the investigation.
111. In 2004, and subsequently with their memorials, the applicants submitted numerous items of documentary evidence in support of their allegations. The most important documents can be summarised as follows.
112. In addition to their own statements of the facts, the applicants submitted 13 statements by eyewitnesses to the events of 5 February 2000 and by other relatives of those who had been killed. One witness was not identified by name.
113. Z. and Ya., the neighbours of the second applicant, stated that Salman and Abdula Magomadov had been killed on 5 February 2000 in the cellar of their home in Mazayeva Street. The witnesses, together with the third neighbour, had dug out the remains, scarcely more than a few bones, from under the debris in the burnt-out cellar on the following day and put them into a large pot, which they buried it in the courtyard of the same house.
114. Aset Ch., a resident of Novye Aldy and a nurse by profession, submitted a detailed account of the events of 5 February 2000. She submitted that the men who had conducted the operation on that day had called themselves “police”, had been wearing camouflage uniforms, had used radio to communicate between themselves and had driven around in military Ural trucks and APCs with obscured number plates.
115. Other witnesses described the perpetrators of the killings as being 35 to 40 years old, wearing camouflage uniforms without insignia. They confirmed the applicants' statements about the circumstances of the killing of their relatives and others. Some witnesses submitted that the servicemen had been drunk.
116. In June 2000 Human Rights Watch issued a 45-page report entitled “February 5: A Day of Slaughter in Novye Aldy”, which put the blame for the extrajudicial executions on the units of the OMON and the military. The document reported the deaths of the applicants' relatives, based on interviews with the applicants and their neighbours. It contained a detailed description of the events, including a plan of the district, a list of 60 names of those killed and information about an additional 19 “unconfirmed” killings.
117. In 2000 the Human Rights Centre Memorial issued a 70-page report entitled “'Mopping-Up'. Settlement of Novye Aldy, 5 February 2000 – Deliberate Crimes against Civilians” («Зачистка». Поселок Новые Алды, 5 февраля 2000 – преднамеренные преступления против мирного населения), which listed the applicants' relatives and neighbours among 56 civilians murdered on that day. The report contained numerous statements by the witnesses and victims, photographs of the dead and a plan of the neighbourhood with indications of the places where people had been killed.
118. On 9 February 2001 Human Rights Watch issued a memorandum on the state of the national investigation into human rights and international humanitarian law violations in Chechnya. The report stated that the investigation into the mass murder of civilians in Novye Aldy had been “pushed around” between three prosecutors' offices and then adjourned. Exhumations and forensic reports had been carried out in respect of more than 30 bodies. The officers and servicemen of the detachments of the military and police allegedly implicated in the murders had not been questioned.
119. On 22 February 2000 the New York Times reported the events in Novye Aldy in the article “Chechens Tell of Murderous Rampage by Russians”. The publication referred to interviews with internally displaced persons (IDPs) in Ingushetia.
120. On 23 February 2000 The Guardian published an article entitled “82 Feared Dead in Chechen Massacre”, which was based on information from human-rights groups and survivors. The newspaper mentioned that access to Grozny was severely restricted and that there was no way of independently verifying the testimony of the witnesses interviewed in the IDP camps in Ingushetia.
121. On 22 March 2000 the Novye Izvestia ran an article entitled “Chechen Civilians Shot by OMON from Dagestan?” The article referred to information from the Chief Military Prosecutor's Office, according to which servicemen from the Ministry of Defence had not been involved in the killings of 67 civilians in Aldy on 5 February 2000. The newspaper stated that more than a hundred armed men who had killed the civilians and looted and set fire to property reportedly belonged to a detachment of the Ministry of the Interior, and that there were reasons to believe that they belonged to the OMON units from Dagestan.
122. On 27 March 2000 the Novaya Gazeta published an article entitled “Freedom or Death. The Aldy Nightmare.” It reported the deaths of the applicants' relatives and contained interviews with the survivors and the relatives of those killed.
123. On 2 June 2000 the Washington Post published an article entitled “Chechnya's Bloodiest Massacre”, which contained the fourth applicant's story and interviews with other residents of Novye Aldy.
124. On 28 June 2000 the Chechnya newspaper Svet Rodiny published a letter received in response to the publications about the murders in Aldy from the Chief of Staff of the Ministry of Defence, which stated that the Chief Military Prosecutor's Office was conducting a verification of the facts contained in the article and of the possible involvement of the military servicemen in the events.
125. In February 2004 the Novaya Gazeta reported on the lack of progress in the investigation of the Aldy massacre in an article entitled “Receipt for Murders”. The article contained an interview with the fourth applicant and stated that the victims of the events of 5 February 2000 had received no assistance from the authorities in the form of either an effective investigation of the events and prosecution of the perpetrators, or compensation for the lost and looted property.
126. The applicants also submitted an extract from a book by Andrew Meier, “Black Earth. A Journey through Russia After the Fall” (New York, 2003), with an account of the author's visit to the Novye Aldy settlement in the aftermath of the massacre and interviews with the survivors and the relatives of those who had been killed.
127. The applicants submitted a videotape made by a Russian human-rights activist, Viktor Popkov, in Novye Aldy on 9 February 2000. They also submitted a transcript of the videotape and a translation of the transcript into English. The footage depicted bodies of the victims in the houses and at the local cemetery. The bodies were shown to have firearm wounds, many of them to the head. The inhabitants of the settlement spoke of the events of 5 February 2000, stressing that the servicemen who had committed the crimes had behaved as if they had had an order to kill, because they had not asked for the residents' identity documents and had not spared anyone, including old men and women. They also spoke of looted and burned houses and of the extortion of money and valuables, including gold teeth. Some people said that the soldiers had been drunk, and described the mocking to which they had been subjected.
128. The applicants submitted a letter issued by the Chief of Staff of the United Group Alignment (UGA) to the military prosecutor of military unit no. 20102 concerning operations in Grozny in the winter of 1999 to 2000. The letter was issued on 8 May 2000 in connection with another criminal case investigated by the military prosecutor. According to the letter, “combat operations to free Grozny of illegal armed groups took place between 10 December 1999 and 10 February 2000. The troop alignment 'Special District Grozny' was in charge of the liberation of the town.” The letter listed several dozen military units of the Ministry of the Interior, Ministry of Defence, the FSB and the Ministry of Justice, which had formed the “Special District Grozny” alignment. Among these units was listed the “245th MSP” (motorised rifle regiment) of the Leningrad military circuit.
129. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic. From 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).
130. Article 161 of the new CCP establishes the rule of impermissibility of disclosing data from the preliminary investigation. Under paragraph 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. Divulging information about the private life of participants in criminal proceedings without their permission is prohibited.
VIOLATED_ARTICLES: 13
2
3
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-21912
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: TALIRZ v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1939 and living in Innsbruck. He is represented before the Court by Mr P. Wallnöfer, a lawyer practising in Innsbruck.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 April 1991 the Innsbruck Regional Court instituted preliminary investigations against the applicant on suspicion of having committed aggravated fraud (schwerer Betrug) and fraudulent conversion (Untreue). In particular, he was suspected of having manipulated a call for tenders (Ausschreibung) for the construction of a tunnel in favour of a specific company.
On 6 May 1991 the applicant was questioned by the Investigating Judge about these charges for the first time.
Subsequently, the charges against the applicant were extended to more than 15 counts of aggravated fraud and fraudulent conversion.
In 1992 the Investigating Judge appointed experts on geology and explosives.
On 13 July 1992 the Investigating Judge ordered the tapping of the applicant’s telephone. On 19 August 1992 the telephone tapping was terminated. Subsequently, the applicant introduced an application with the European Commission of Human Rights against this measure (Application no. 21837/93), which was declared inadmissible by the Commission on 2 March 1994.
In June and July 1993 two reports by the court appointed experts on geology and explosives submitted their reports to the Investigating Judge. A third one on geology was submitted in September 1994.
In February 1994 the Public Prosecutor’s Office at the Innsbruck Regional Court lodged the first bill of indictment. In June 1994 the second bill of indictment was lodged. The Innsbruck Court of Appeal dismissed the applicant’s objections (Einspuch) against these indictments.
On 6 November 1995 the trial before the Innsbruck Regional Court commenced. On 26 January 1996, after 40 court hearings, the applicant was convicted of two counts of aggravated fraud and fraudulent conversion and acquitted of the other charges. He was sentenced to 4 years’ imprisonment.
On 13 December 1996 the Supreme Court dismissed the applicant’s plea of nullity, but granted the plea of nullity lodged by the Public Prosecutor and quashed the applicant’s acquittal on five charges. Although the applicant’s conviction in respect of two counts had become final, the Supreme Court remitted the case to the Regional Court in respect of five counts of fraud and fraudulent conversion. Thereupon, the Regional Court resumed the preliminary investigations concerning these charges.
On 13 August 1997 the Innsbruck Regional Court partially granted the applicant’s request for the re-opening of the proceedings (Wiederaufnahme). On 30 April 1998 the Innsbruck Court of Appeal, on the applicant’s appeal, ordered a complete retrial, including all charges against the applicant.
On 12 October 1998 the Innsbruck Regional Court acquitted the applicant of all the charges against him.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."