KHAMZAYEV AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1503/02
by Abdulla Mayrbekovich KHAMZAYEV and Others
against Russia

The European Court of Human Rights (First Section), sitting on 25 March 2010 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 21 November 2001,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The present application was originally brought by Mr Abdulla Mayrbekovich Khamzayev, born in 1937. On 21 August 2003 and 2 March 2004 respectively Ms Leyla Abdullayevna Khamzayeva, born in 1964, and Ms Eliza Sharipovna Tovgayeva, born in 1971, joined in the case. In June 2004 the first applicant died, and the second applicant, his daughter, expressed the intention to pursue the application on his behalf. The last two applicants are Russian nationals and live respectively in Moscow and in the village of Pliyevo, Ingushetia. The second applicant, a lawyer practising in Moscow, also acts as the applicants’ representative before the Court. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Attack of 19 October 1999

At the material time the first two applicants and Mr Mayrbek Abdullayevich Khamzayev owned a private house at 24a Dostoevsky Street in the town of Urus-Martan, the Chechen Republic. The third co-owner, Mr Mayrbek Khamzayev, is not a party to the proceedings before the Court. The third applicant was the first applicant’s relative and had been living in the house with her family with the latter’s permission since October 1997.

In September 1999 the Russian Government commenced a counter-terrorist operation in the Chechen Republic.

On 19 October 1999 the federal military air forces attacked the town of Urus-Martan. The bombing resulted in six people killed and sixteen wounded as well as thirteen houses, including that at 24a Dostoevsky Street, destroyed and twenty-seven damaged. The third applicant’s belongings were destroyed with the house.

According to the applicants, after the attack an unexploded bomb was found at 15 Dostoevsky Street.

It appears that on 10 November 1999 a video record of the site of the incident was made by local residents.

On 24 January 2000 the administration of Urus-Martan (Администрация г. Урус-Мартан) drew up an evaluation report (дефектный акт) describing in detail the damage inflicted on the house at 24a Dostoevsky Street as a result of the attack.

On an unspecified date in November 2000 the administration of Urus-Martan issued the first applicant with a certificate confirming that the house at 24a Dostoevsky Street belonging to him had been partly destroyed as a result of the bomb strike on 19 October 1999.

On 25 February 2002 the administration of Urus-Martan issued the second applicant with a certificate confirming that the house at 24a Dostoevsky Street had collapsed as a result of warfare in the Chechen Republic and presently was unfit for human habitation.

B. Official investigation

After the attack the applicants sought an investigation into the events of 19 October 1999. It was mostly the first applicant who, on behalf of himself and the other applicants, applied, both in person and in writing, to various public bodies.

1. Replies from military and administrative authorities

Between January 2000 and November 2001 the first applicant received a number of similar letters from the General Headquarters of the Russian Air Force (Главный штаб Военно-воздушных сил), the acting commander-in-chief of the Air Force (временно исполняющий обязанности Главнокомандующего Военно-воздушными силами) and the General Headquarters of the Armed Forces of Russia (Генеральный штаб Вооруженных Сил РФ) which stated that the Air Force had never flown in the vicinity of Urus-Martan or launched any bomb strikes in October 1999 or later. The letters continued that air strikes were only aimed at targets which had been pre-selected and identified as military and were situated at a distance of at least two to three kilometres from inhabited areas, and that the accuracy of military aircraft precluded any possibility of accidental hits on civilian targets. Finally, as regards the first applicant’s complaint about an unexploded bomb found by the residents, he was invited to apply to “a competent body of the Ministry of the Interior” in the vicinity of his domicile.

During the same period the first applicant also received responses from the Ministry of the Interior, the commander of the Missile Troops and Artillery (начальник ракетных войск и артиллерии) and the commander of the Troops of the North Caucasus Military Circuit (командующий войсками Северо-Кавказского военного округа), who denied any involvement by their personnel in the alleged attack of 19 October 1999 on Urus-Martan.

On 15 February 2001 military unit no. 40911 informed the first applicant that the aircraft of the Fourth Army of the Air Force and Counter Missile Defence (Четвертая Армия Военно-воздушных сил и противоракетной обороны) had not attacked Urus-Martan or launched an air strike on the house at 24a Dostoevsky Street, since they had not possessed any information regarding any military objects in the said area which would warrant such a strike. The letter also stated that the information allegedly received by the first applicant from the military prosecutor’s office, to the effect that on 19 October 1999 two SU-25 military aeroplanes had launched an air strike on Urus-Martan, was inaccurate.

On 18 December 2001 the Office of the Plenipotentiary Representative of the Russian President in the Southern Federal Circuit (Аппарат Полномочного представителя Президента РФ в Южном федеральном округе) informed the first applicant that there had been no warfare on the territory of Urus-Martan in October 1999, that illegal armed formations had no military aircraft or bombs and missiles in their arsenal and that in October 1999 no incursion by foreign military aircraft into the airspace of the Russian Federation had been detected.

2. Criminal proceedings

It appears that on 7 April 2000 the military prosecutor of military unit no. 20102 decided to dispense with criminal proceedings in connection with the events of 19 October 1999, stating that there was no evidence of involvement by federal military personnel in the imputed offence, and that the alleged casualties and damage could have been inflicted by fighters of illegal armed groups.

On 21 July 2000 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики – “the republican prosecutor’s office”) instituted criminal proceedings in connection with the aerial attack of 19 October 1999 on Urus-Martan and the killing of residents and destruction of property, under Articles 105 § 2 (a) and (e) (killing of two or more persons committed in a socially dangerous manner) and 167 § 2 (aggravated deliberate destruction of one’s property). The case file was given the number 24031 and sent to the prosecutor’s office of the Urus-Martan District (прокуратура Урус-Мартановского района – “the district prosecutor’s office”).

On 21 January 2001 the district prosecutor’s office suspended the investigation, stating that it was impossible to establish the identity of those responsible.

On 7 February 2001 the criminal proceedings were resumed and then, on 7 March 2001, they were again suspended.

On 15 March 2001 the first applicant was acknowledged as a victim and a civil claimant in criminal case no. 24031.

On 29 April 2001 the acting prosecutor of the Urus-Martan District referred the file in case no. 24031 to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) for a further investigation. The decision stated that it had been established that the destruction of houses and other possessions as well as the deaths and injuries of residents of Urus-Martan on 19 October 1999 had been due to an air strike by aircraft of the federal armed forces. This fact was confirmed by interviews with witnesses and victims as well as the inspection of the site of the incident, where fragments of bombs and parts of missiles had been found. The involvement of the federal military personnel in the above attack was obvious, as the illegal armed groups had no aircraft, and therefore the case file should be transferred to the military prosecutor’s office for a further investigation in order to identify the military unit and military personnel who had committed the imputed offence.

It appears that at some point the republican prosecutor’s office returned the case file to the district prosecutor’s office for a further investigation. The latter resumed the criminal proceedings on 6 June 2001.

On 6 July 2001 the district prosecutor’s office again ordered that the criminal proceedings be suspended and the case file transmitted to the military prosecutor’s office. That decision was similar to that of 29 April 2001. It stated in addition that an unexploded bomb had remained lying near a house at 15 Dostoevsky Street since the attack of 19 October 1999.

By a decision of 18 March 2002 the military prosecutor’s office of the North Caucasus Military Circuit refused the first applicant’s request to institute criminal proceedings against high-ranking officers of the General Headquarters of the Armed Forces of Russia and the General Headquarters of the Air Forces of Russia, who had allegedly provided him with false information concerning the attack of 19 October 1999. The decision referred to the statements of a number of officers who had claimed that the first applicant’s allegations relating to the bombing of Urus-Martan had been thoroughly investigated on several occasions and proved unsubstantiated. In particular, one of the officers stated that he had personally examined the registry of combat air missions (журнал учет боевых вылетов) and tactical map (карта ведения боевых действий) for the relevant period and found out that there had been no air strikes on the town of Urus-Martan on 19 October 1999. However, at 1.30 p.m. on that date high-explosive 250 kg air bombs were launched on a group of fighters located one kilometre from the south-eastern outskirts of Urus-Martan. The decision concluded that since it had been established that the officers had provided the first applicant with full and true information and that there was no evidence of crime as regards their actions.

On the same date the military prosecutor’s office of the North Caucasus Military Circuit quashed the decision taken by the military prosecutor’s office of military unit no. 20102 on 7 April 2000.

On 15 July 2002 the district prosecutor’s office suspended the criminal proceedings in case no. 24031 for failure to establish the identity of those responsible.

On 25 August 2002 the criminal proceedings were resumed.

On 25 September 2002 the district prosecutor’s office again stayed the proceedings on the ground that it was impossible to establish the identities of the alleged perpetrators.

On 1 October 2002 the proceedings were recommenced.

On 17 October 2002 the district prosecutor’s office declared the second applicant a victim and civil claimant in criminal case no. 24031.

On 1 November 2002 the criminal proceedings were again suspended in the absence of any persons identifiable as those responsible.

On 10 January 2003 the district prosecutor’s office resumed the criminal proceedings.

On 21 January 2003 the third applicant was granted victim status in criminal case no. 24031.

On 10 February 2003 the district prosecutor’s office stayed the criminal proceedings with reference to the failure to establish the identity of those responsible.

On 15 February 2003 the above decision was quashed and the investigation was resumed.

By a decision of 15 March 2003 the district prosecutor’s office suspended the proceedings for a failure to establish the identity of those responsible and sent the case file to the military prosecutor’s office of the United Group Alignment. The latter resumed the proceedings on 18 April 2003.

In a letter of 3 September 2003 the district prosecutor’s office informed the first applicant that a number of investigative actions in criminal case no. 24031 had been taken, and in particular the scene of the incident had been inspected, fragments of bombs had been seized, new expert examinations had been ordered, and the military commander of the Chechen Republic (военный комендант Чеченской Республики) had been requested to take steps aiming at disposing of unexploded air bombs found in the residential district of Urus-Martan. The letter next stated that on 15 March 2003 the criminal proceedings in case no. 24031 had been stayed, and on 19 March 2003 the case file had been transmitted to the republican prosecutor’s office. At present the investigation was being carried out by the military prosecutor’s office of the United Group Alignment.

On 17 November 2003 the military prosecutor’s office of the United Group Alignment discontinued the criminal investigation into the events of 19 October 1999 with reference to the absence of the constituent elements of the crime in the actions of the federal servicemen. According to the applicants, it was only the first applicant who had been informed of this decision, and none of the applicants had been furnished with a copy of it.

It appears that the first applicant unsuccessfully applied to prosecutors at various levels in an attempt to obtain a copy of the decision of 17 November 2003.

On 26 March 2004 the military prosecutor’s office of the United Group Alignment informed the first applicant that the decision to discontinue the criminal proceedings in connection with the attack of 19 October 1999 had been lawful and well-founded, as it had been established during the investigation that the federal aircraft had bombed fortified command points, bases and ammunition depots of the illegal armed groups rather than any residential areas of Urus-Martan. The letter also stated that the first applicant was entitled to make a claim for compensation for his destroyed property.

On 10 May 2004 the first applicant complained to the Supreme Court of the Chechen Republic about the refusal of the military prosecutor’s office of the United Group Alignment to furnish him with a copy of the decision of 17 November 2003, which prevented him from appealing against that decision in court. It is unclear whether this complaint was examined.

In a letter of 12 July 2004 the military prosecutor’s office of the United Group Alignment stated that the file of the criminal case opened in connection with the attack by federal aircraft on Urus-Martan on 19 October 1999 had been classified, and therefore the first applicant’s request to provide him with the case file materials could not be granted. It also followed from the letter that the criminal proceedings had been discontinued, that the first applicant was entitled to institute civil proceedings, and that the case file could be submitted to court upon the latter’s order.

On 21 July 2004 the military prosecutor’s office of the United Group Alignment sent to the first applicant two letters, the contents of which were similar to those of the letter of 12 July 2004.

On 2 August 2004 the military prosecutor’s office of the United Group Alignment replied to the first applicant’s complaint of 26 May 2004, stating that the preliminary investigation in case no. 34/00/0008-03 had established that in October 1999 the town of Urus-Martan had been occupied by Islamic extremists, amounting to over 1,500 persons, who had based their headquarters in the town, had fortified it and had not been prepared to surrender, and that in such circumstances the federal command had taken a decision to carry out pinpoint bombing strikes against the bases of illegal fighters in Urus-Martan.

C. Proceedings for compensation

On an unspecified date in 2000 the first applicant issued civil proceedings against the Government of Russia, the Ministry of Finance and the Ministry of Defence and a number of prosecutors in the Basmanny District Court of Moscow (“the District Court”). He sought damages in connection with the allegedly improper handling of his complaints by prosecutors as well as pecuniary and non-pecuniary damage for his destroyed property.

On 14 November 2000 the administration of Urus-Martan replied to a query of the District Court, having confirmed that as a result of the air strike on 19 October 1999 six residents of Urus-Martan had been killed and several wounded, and that evaluation reports in respect of the destroyed and damaged houses were kept in the town administration.

In a letter of 19 January 2001 the administration of Urus-Martan again stated in reply to another query from the District Court, that an air strike of 19 October 1999 had resulted in six residents killed and several wounded as well as dozens of houses damaged, including that at 24a Dostoevsky Street. This latter house was unfit for human habitation, and its poor state of repair had been reflected in an evaluation report submitted to the District Court earlier.

On 24 May 2001 the district prosecutor’s office furnished the District Court with a report on the results of the investigation in criminal case no. 24031. The document stated that on 19 October 1999 an unidentified aircraft had launched a strike on Urus-Martan, with the result that six residents had died, sixteen were wounded, thirteen private houses were destroyed, including that of the first applicant, and twenty-seven damaged. In this connection, on 27 July 2000 the republican prosecutor’s office had instituted criminal proceedings in case no. 24031 and the first applicant had been declared a victim and civil claimant in this case. The events of 19 October 1999 had been confirmed by forty-eight witnesses listed in the report and other witnesses, reports of the inspection of the crime scene and forensic examination as well as other evidence, such as fragments of exploded bombs seized from the first applicant’s house and a video record of the site of the incident, dated 10 November 1999. Finally, the report stated that, as the illegal armed groups had no aircraft, on three occasions the criminal case had been sent for further investigation to the military prosecutor’s office, who, however, on various grounds returned it, which had protracted the investigation and made it difficult to identify the pilots involved in the attack of 19 October 1999.

On 11 May 2001 the District Court delivered its judgment, having held that the public bodies had properly examined the first applicant’s complaints and given him timely responses, and therefore had not infringed his rights, including the right to receive information. As to the first applicant’s claims regarding compensation for the destroyed property, the court held that they could not be granted, as “the federal armed forces had conducted a military operation in the Chechen Republic by virtue of presidential and governmental decrees that had not been found unlawful”. The court further stated that the destruction of the first applicant’s house could not be imputed to the defendants, since the military actions had been carried out not only by the federal troops but by the illegal armed groups as well, and that no causal link had been established between the defendants’ actions and the damage sustained by the claimant. The first applicant’s claims for compensation of non-pecuniary damage could not be granted either, as he had not submitted any evidence that the defendants’ actions had caused him any physical, mental or emotional suffering, and had not indicated the amount of the compensation. In view of the above, the court concluded that there were no grounds to grant the first applicant’s claims.

On 4 October 2001 the Moscow City Court upheld the first-instance judgment on appeal, relying largely on the District Court’s reasoning.

COMPLAINTS

The second applicant complained, on behalf of the first applicant and that of herself, that the destruction of their private house in the attack by the federal military forces on 19 October 1999 infringed their rights under Article 1 of Protocol No. 1 to the Convention and Article 2 of Protocol No. 4 to the Convention. She also maintained a complaint raised by the first applicant in an application form dated 18 March 2004 that high-ranking military officers had provided false information about the air strike, and had therefore infringed his right to receive information, guaranteed by Article 10 of the Convention.

The third applicant alleged that the strike by federal troops with high-explosive bombs on a heavily populated residential area of Urus-Martan on 19 October 1999 had put her life at real risk, contrary to Article 2 of the Convention. She further complained that the destruction of the house in which she had lived had breached her right to respect for her home, set forth in Article 8 of the Convention, and her freedom to choose her residence, enshrined in Article 2 of Protocol No. 4. The third applicant also referred to Article 1 of Protocol No. 1, stating that as a result of the attack she had lost her belongings, which had been destroyed together with the house. Finally, she relied on Article 2 of Protocol No. 1, stating that after the air strike of 19 October 1999 the secondary school her children attended had ceased functioning, and therefore her children’s right to education had been violated.

THE LAW

1. The applicants complained under Article 1 of Protocol No. 1 that their property had been destroyed in the federal attack on Urus-Martan on 19 October 1999. The third applicant also complained that her life had been put at risk in breach of Article 2 of the Convention, and that her right to respect for home secured by Article 8 of the Convention had been infringed, as a result of that attack. The respective Convention provisions state as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 8

“1. Everyone has the right to respect for ... his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The Government

The Government acknowledged that the federal air strike on Urus-Martan on 19 October 1999 had resulted in human casualties and in the destruction of or damage to a number of houses.

They argued, however, that the applicants had failed to exhaust the available domestic remedies, as they had not challenged in court the actions or omissions of the investigating authorities during the investigation, or appealed in court against the decision of 17 November 2003 by which the criminal proceedings in connection with the attack of 19 October 1999 had been discontinued, or brought civil proceedings after the investigation had been discontinued. Also, in the Government’s submission, the second and third applicants had not brought civil proceedings to obtain compensation for the property allegedly lost by them during the bombing. In this latter respect, the Government stated that the first applicant had issued the civil proceedings for compensation only on his own behalf and that the other two applicants had not submitted their claims in the context of those proceedings. However, if the Court considered the proceedings in question as the remedy that had been exhausted by all the three applicants, then the second and third applicants had failed to comply with the six-month requirement, given that the final decision in those proceedings had been taken on 4 October 2001, whilst the second and third applicants had lodged their applications on 21 August 2003 and 2 March 2004 respectively.

The Government also seem to have argued, with reference to the case of Elsanova v. Russia ((dec.), no. 57952/00, 15 November 2005), that the applicants’ claims concerning the loss of their property had not been substantiated, as they had failed to submit relevant documents confirming their title to the property which they claimed had been damaged or destroyed during the strike of 19 October 1999.

As to the merits of the applicants’ complaints, the Government pointed out that from the beginning of the counter-terrorist operation in September 1999 to early December 1999 the town of Urus-Martan had been occupied by illegal fighters, amounting to over 1,500 persons, who had based their headquarters in civilian premises in the town, had fortified it and had not been prepared to surrender. Such circumstances, in the Government’s submission, had rendered necessary a pinpoint air strike against the bases of illegal fighters in Urus-Martan which had been carried out on 19 October 1999. In the Government’s view, the pinpoint character of the strike had enabled the federal forces to minimise the risk of civilian casualties. They insisted that in the circumstances the use of force by the federal forces was no more than absolutely necessary in order to eliminate danger to the local population emanating from the illegal armed groups and that it was impossible to eliminate that danger by any other means.

The Government contended that the attack of 19 October 1999 had been planned and controlled by the authorities so as to minimise any risk to the lives of civilians in Urus-Martan, including the third applicant. In the Government’s view, the present case could be distinguished from the cases of Isayeva, Yusupova and Bazayeva v. Russia (nos. 57947/00, 57948/00 and 57949/00, 24 February 2005), and Isayeva v. Russia (no. 57950/00, 24 February 2005), since in the present case the military targets in Urus-Martan, their danger to the residents and the necessity of their destruction were obvious, and the consequences of the attack in question were less serious than those in the quoted cases. The Government thus insisted that there had been no violation of Article 2 of the Convention in the present case.

As regards the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1, the Government contended that the alleged interference with the applicants’ rights had been lawful and had been in the public interest as it was necessary to suppress criminal activity of the illegal armed groups. The Government added that they had complied with their obligations under Article 1 of Protocol No. 1 by enacting a number of legal instruments enabling the applicants to obtain compensation for their lost property. The Government thus concluded that there had been no violation of Article 8 of the Convention and Article 1 of Protocol No. 1 in the present case.

B. The applicants

The applicants disagreed with the Government and maintained their complaints.

Firstly, the applicants disputed the Government’s arguments concerning their alleged failure to exhaust domestic remedies. They argued that the remedies advanced by the Government had been illusory, inadequate and ineffective. In particular, in so far as the Government stated that they had not appealed against the decision of 17 November 2003 by which the criminal proceedings in connection with the attack of 19 October 1999 had been discontinued, the applicants stated that it was only the first applicant who, in reply to his numerous requests and complaints, had received some information concerning the investigation in criminal case no. 24031. Moreover, as the case file had been classified even the first applicant was unable to receive any documents from it; he had never received a copy of the decision of 17 November 2003 and his right to appeal had never been explained to him. The applicants insisted that none of the second and third applicants, although they had the status of victims, had ever been informed of the course of the investigation, and therefore they had been unable to appeal against any procedural decision taken during the investigation.

The second and third applicants further argued that they had been absolved of the requirement to lodge a civil claim for compensation, as suggested by the Government, given that the domestic courts rejected a similar claim lodged by the first applicant and also in the absence of any meaningful findings of the criminal investigation into the attack.

The second and third applicant also argued they had not failed to comply with the six-month requirement when lodging their complaints. They insisted that the decision of the Moscow City Court of 4 October 2001 by which the first applicant’s claim for compensation for the destroyed property had been rejected in the final instance could not be regarded as the final decision in so far as their applications were concerned.

In so far as the Government seem to have contested the applicants’ title to the property which, according to them, they had lost as a result of the strike of 19 October 1999, the applicants pointed out that the first two applicants’ title to the destroyed house had never been called into doubt by any of the authorities at the domestic level.

The applicants then contested the Government’s assertion that the attack in question had been planned and controlled by the authorities so as to minimise the risk of civilian casualties. They pointed out, in particular, to the replies from the various military authorities who during several years following the attack had denied the very fact of the attack. It was not until 2004 that the authorities mentioned for the first time illegal armed groups that had allegedly been targeted in the attack of 19 October 1999. The applicants argued that the Government had not submitted any evidence that illegal armed groups had, indeed, been present in Urus-Martan at the relevant period and that they had posed threat to civilian residents of Urus-Martan which had rendered necessary the bombing strike, as alleged by the Government. Moreover, the civilians had not been informed beforehand of the attack of 19 October 1999, of possible ways of their evacuation, etc. The attack had taken place on a cloudy day, with the result that the pilots who had performed the strike had most probably been unable to see their targets clearly and to ensure target accuracy. Also, the fact that the military authorities had used highly explosive bombs for their attack indicated, in the applicants’ view, that the authorities had not taken appropriate care to ensure that any risk to the lives of civilians, including the third applicant, was minimised. The applicants also asserted that the investigation carried out by the authorities had been inadequate and that they had not been duly informed of its course. The applicants therefore argued that there had been a violation of Article 2 in the present case.

The applicants further maintained that the third applicant’s right to respect for home guaranteed by Article 8 of the Convention and their right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 had been violated, as the means employed by the authorities had been disproportionate to the aims sought to be achieved. They also referred to the domestic courts’ decisions by which the first applicant’s claim for compensation had been rejected and argued that the right to compensation for the destroyed property established, according to the Government, in a number of legal instruments, was illusory and not enforceable in practice.

C. The Court’s assessment

The Court considers at the outset that the questions of the applicants’ compliance with the requirements set out in Article 35 § 1 of the Convention are closely linked to the merits of the present complaints and that it is therefore inappropriate to determine them at the present stage of the proceedings. The Court therefore decides to join these objections to the merits.

The Court further considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. Consequently, the Court concludes that this part of the application cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. In an application form of 18 March 2004 the first applicant also complained that the military authorities had given him false information regarding the attack of 19 October 1999, and therefore had infringed his right to receive information under Article 10 of the Convention. The third applicant referred to Article 2 of Protocol No. 1, complaining that her children’s right to education had been violated, as the school they attended had closed following the attack. Lastly, the applicants alleged a violation of their freedom to choose their place of residence under Article 2 of Protocol No. 4 because of the destruction of the house of which the first two applicants claimed to be owners and where the third applicant had lived.

In so far as the first applicant relied Article 10 of the Convention, the Court notes that he had his relevant complaint examined in the proceedings in which the final decision was taken by the Moscow City Court on 4 October 2001, whereas the first applicant firstly raised this complaint before the Court in an application form of 18 March 2004, that is more than six months later. It follows that this complaint was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

As regards the third applicant’s complaint under Article 2 of Protocol No. 1 to the Convention, the Court, leaving aside the question of the third applicant’s compliance with the requirements set out in Article 35 § 1 of the Convention, notes that it is in any event inadmissible given that it concerns the alleged violation of rights of the third applicant’s children who are not the applicants in the present case. It follows that this complaint is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

Lastly, in so far as the applicants referred to Article 2 of Protocol No. 4 to the Convention, the Court, leaving aside the question of the applicants’ compliance with the requirements set out in Article 35 § 1 of the Convention, finds that the circumstances of the present case do not disclose any interference with the applicants’ rights secured by this Convention provision. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objections concerning the applicants’ compliance with the requirements set out in Article 35 § 1 of the Convention in respect of their complaints under Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1;

Declares admissible, without prejudging the merits, the third applicant’s complaints under Articles 2 and 8 of the Convention and the applicants’ complaints under Article 1 of Protocol No. 1;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

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