CASE OF ARKHESTOV AND OTHERS v. RUSSIA
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed people, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties and the office of the Border Guard Service of the Federal Security Service. Also, a few privately owned weapon shops were attacked. According to the Government, there were over two hundred and fifty participants in the attack. 6. The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005. 7. The first, second, third, fifth and seventh applicants submit that they are relatives of the people whose dead bodies were found following the events of 13 and 14 October 2005 (see paragraphs 8, 9, 10, 12 and 14). The fourth applicant claims that his son was killed by State agents in the village of Anzorey in the Leskenskiy District of the Republic of KabardinoBalkariya on 6 January 2006 (see paragraph 11). The sixth applicant claims that her son was killed by State agents in the town of Nalchik on 12 November 2005 (see paragraph 13). All of the applicants live in the Republic of Kabardino-Balkaria and, unless stated otherwise, are residents of Nalchik. 8. The first applicant, Mr Khusen Kadirovich Arkhestov, born in 1954, referred to the death of his son Mr Lokman Khusenovich Arkhestov, born on 30 December 1989. 9. The second applicant, Mrs Kulisum Zhantuganovna Balkizova, born in 1956, referred to the death of her son Mr Kantemir Safudinovich Balkizov, born on 29 March 1982. 10. The third applicant, Mrs Asiyat Kunakovna Guziyeva, born in 1976, referred to the death of her husband Mr Arsen Gumarovich Margushev, born on 6 January 1979. 11. The fourth applicant, Mr Askarbi Khamidovich Zhekamukhov, born in 1955, referred to the death of his son Mr Albert Askarbiyevich Zhekamukhov, born on 23 November 1980. 12. The fifth applicant, Mr Arsen Khazhmastafovich Tukov, born in 1939, referred to the death of his son Mr Anatoliy Arsenovich Tukov, born on 3 August 1974. 13. The sixth applicant, Mrs Mariya Latifovna Khuranova, who was born in 1955 and lives in the village of Shalushka, referred to the death of her son Mr Azamat Anatolyevich Brayev, born on 29 July 1975. 14. The seventh applicant, Mrs Lyuda Khazhmuradovna Shogenova, who was born in 1965 and lives in the village of Zalukokoazhe, referred to the death of her brother Mr Aslan Khadzmuratovich Shogenov, born on 26 January 1965. 15. The Government did not dispute this information. 16. It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25/78-05 in connection with the attack in Nalchik. 17. In the course of the investigation it was established that between 1999 and February 2005 a group of individuals including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and AbuDzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property. 18. The applicants did not have any procedural status in the criminal proceedings in case no. 25/78-05. 19. Immediately following the attack, an unspecified number of people (including some of the applicants) signed collective petitions requesting various officials, including the prosecutors, to return the bodies for burial. 20. Between the end of October 2005 and until at least April 2006 the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed. 21. Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful, as they were rejected as premature both at first instance and on appeal. 22. On 13 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased on account of their deaths, having taken an individual decision in respect of each deceased person. Each decision described the degree and character of their individual involvement and concluded that these persons had taken part in the attack and died as a result of the ensuing fight. The decisions described the circumstances of death of the persons referred to by the applicants; they are set out below. The respondent Government have submitted the investigation case file in respect of the circumstances of death of each of the deceased persons. 23. The son of the first applicant, Lokman Khusenovich Arkhestov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Federal Service for the Execution of Penalties. 24. The son of the second applicant, Kantemir Safudinovich Balkizov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 25. The husband of the third applicant, Arsen Gumarovich Margushev, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 26. The son of the fourth applicant, Albert Askarbiyevich Zhekamukhov, was found to have taken part in the attack of 13 October 2005 and subsequently to have escaped from Nalchik and gone into hiding. He was located in the village of Anzorey in the Leskenskiy District of the Republic of Kabardino-Balkariya on 6 January 2006. After rejecting a call to give himself up, he died as a result of a failed attempt to arrest him. 27. The son of the fifth applicant, Anatoliy Arsenovich Tukov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 28. The son of the sixth applicant, Azamat Anatolyevich Brayev, was found to have taken part on 12 October 2005 in an exchange of gunfire with police officers preceding the main attack of 13 October 2005. He belonged to the same group as the attackers, but was detected by police officers by chance one day prior to the attack. 29. The brother of the seventh applicant, Aslan Khazhmuratovich Shogenov, was found to have taken part in the attack of 13 October 2005. He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of the Ministry of the Interior. 30. The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications. 31. In the Strasbourg proceedings the Government submitted copies of the decisions of 13 April 2006 in respect of each of the applicants’ relatives. 32. The applicants were furnished with death certificates in respect of their relatives: 33. According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. 34. The cremation took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular: “... the head of investigation group ... [official S.], having examined the materials in case file no. 25/78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely: [the decision names among the deceased all of the persons referred to by the applicants] At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure. By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... was discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure. Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ) ‘the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.’ Pursuant to part 3 of Decree no. 164, ‘On interment of persons whose death was caused by the interception of terrorist acts carried out by them’, approved by the Government of the Russian Federation on 20 March 2003, ‘the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...’. [In view of the above, official S. decided to:] bury the bodies of the 95 terrorists ... forward the decision to the President of the Republic of Kabardino-Balkariya for execution; inform [his superiors] of this decision”. 35. The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them. 36. It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006. 37. The applicants’ initial attempts to obtain judicial review of the decisions of 13 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments. 38. The relatives of those who had taken part in the attack of 13 October 2005 contested the legislation governing the interment of terrorists before the Constitutional Court. 39. On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question: “... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms. The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension. In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity. In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...” 40. The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review. 41. In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows: “... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death ...” 42. Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows: “... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial. At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...” 43. Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted: “... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ... The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...” 44. After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13 April and 15 May 2006. 45. The applicants brought the following court proceedings in connection with the relevant decisions. 46. As a result of the above-mentioned sets of proceedings the applicants succeeded in having quashed the decisions of 13 April and 15 May 2006 in part. It appears that the domestic courts subsequently changed their position and the relevant judgments were later quashed by way of supervisory review. After these changes, the courts still could not review the need for application of the measures set out in section 14 (1) of the Interment and Burial Act and Decree no. 164 of 20 March 2003 in individual cases. 47. According to the applicants who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses (except for the bodies of the relatives of the fourth and sixth applicant, who died at other dates and were identified later) were kept in the town morgue and other locations in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of one other. 48. In response to a letter from the applicants requesting an explanation for the appalling storage conditions, the Prosecutor General’s Office stated in a letter of 14 April 2006 that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms in refrigerated chambers set to the appropriate temperature. The authorities refused to disclose the locality where the bodies were stored. 49. According to the Government, the following applicants participated in the identification procedure in person: 50. According to the applicants, they had access to the bodies both in the Nalchik town morgue and in two refrigerator wagons parked on a plot of land belonging to the Ministry of the Interior. Provision of access to the bodies was random, as not everyone who wanted to take part in the identification process was admitted. In some cases the provision of access was not properly documented. Since the provision of access was limited, the relevant facilities were usually surrounded by crowds of relatives of the deceased. 51. The Government submitted that the corpses in question had been initially held in the Nalchik town morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. Thereafter the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification procedure was the head of the investigation group investigator P. As of 22 October 2005 he was replaced by investigator S. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies. 52. According to the Government’s most recent submissions, the overall number of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eighty-seven participants in the attack. 53. For a summary of the relevant domestic law, see Sabanchiyeva and Others v. Russia, no. 38450/05, §§ 33-37 and 65-90, ECHR 2013 (extracts) and Maskhadova and Others v. Russia, no. 18071/05, §§ 116-146, 6 June 2013. 54. For a summary of other relevant sources referred to by the applicants, see Sabanchiyeva and Others, cited above, §§ 91-96 and also Maskhadova and Others, cited above, §§ 147-150.