FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18071/05
by Kusama Yazedovna MASKHADOVA and Others
against Russia
The European Court of Human Rights (First Section), sitting on 8 July 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 4 May 2005,
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 applicants, Mrs Kusama Yazedovna Maskhadova, Mrs Fatima Aslanovna Maskhadova and Mr Anzor Aslanovich Maskhadov, are Russian nationals who were born in 1950, 1983 and 1975 respectively and live in Azerbaijan and Norway. They were represented before the Court by Interights, an NGO specialising in the legal protection of human rights based in London.
The Russian Government (“the Government”) were initially represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is the widow of Aslan (the first name may also be spelled Oslan) Aliyevich Maskhadov.
The second and third applicants are their children.
1. Background to the case
Aslan Maskhadov, born in 1951, was one of the military and political leaders of the Chechen separatist movement during and after the armed conflict of 1994-96.
For some time after the elections held in Chechnya on 27 January 1997 he was President of the so-called Chechen Republic of Ichkeriya.
(a) Criminal case no. 59027
In 1999 Chechen armed groups began a military incursion into Dagestan.
On 18 February 2000 a criminal investigation was initiated by the Russian authorities on suspicion of military revolt and sedition in this connection.
On 2 March 2000 Aslan Maskhadov acquired the status of accused in this case.
On the same date the investigator decided to detain him. Since the whereabouts of Aslan Maskhadov could not be established, the investigator placed his name on the national and international lists of wanted persons.
(b) Criminal case no. 14/17
On an unspecified date the authorities also opened a criminal investigation into terrorist activity in the Nadterechnyy District of the Chechen Republic in 2000.
(c) Criminal case no. 20/849
On 1 September 2004, the day of the terrorist attack on a school in the town of Beslan, the authorities instituted criminal proceedings in connection with this event on suspicion of hostage-taking, murder, illegal arms trafficking and terrorist acts.
On 8 September 2004, having collected various items of evidence indicating the involvement of Aslan Maskhadov in masterminding the attack, the investigator formally identified him as an accused.
On the same date Aslan Maskhadov’s name was again put on the national and international wanted lists.
(d) Applicants’ allegations concerning attempts on the life of Aslan Maskhadov
The applicants alleged that repeated attempts on Aslan Maskhadov’s life had taken place in 1996, 1998 and 2000 and that these attacks had been “conducted by or with the connivance of State agents”.
According to the applicants, on 9 September 2004 the Russian Federal Security Service (Федеральная Служба Безопасности РФ – “the FSB”) offered 300 million Russian roubles for information leading to his arrest.
2. Events of 8 March 2005
It appears that prior to 8 March 2005 Aslan Maskhadov lived in hiding as a fugitive in various unspecified locations in Chechnya.
On 8 March 2005 between 9 and 10 a.m. the FSB conducted a special operation aimed at tracking down and arresting members of unlawful military formations at 2 Suvorov Street in Tolstoy-Yurt, a village in the Groznenskiy Selskiy District of the Chechen Republic.
According to the authorities, the operation resulted in the discovery of a concealed underground shelter and the arrest of four individuals, including V.U. Khadzhimuradov and V.L. Murdashev, Mr Aslan Maskhadov’s bodyguard and press officer respectively.
The authorities also discovered the corpse of an “unidentified person” bearing traces of injuries. On the same date the four detained individuals identified the person as Aslan Maskhadov.
In the afternoon of 8 March 2005 investigator Sh. from the Investigative Unit of the Directorate of the FSB in the Chechen Republic (следователь следственного отдела Управления ФСБ России по Чеченской Республике) arrived on the scene and, in the presence of two witnesses and with the assistance of a military mining specialist, conducted an inspection of the house and grounds.
The resulting report, containing numerous colour photographs, described the property in detail, including the location of the house, the adjacent structures and the concealed underground shelter.
It further described the corpse in the following manner:
“... In the middle of the aforementioned concrete platform, under the canopy, was the corpse of an unidentified man, apparently resembling Aslan Maskhadov. The corpse was lying on its back with the arms and legs spread wide. There were socks on the corpse’s feet. The corpse was shoeless. The person was wearing dark-grey trousers heavily stained with dirt. The left trouser leg was rolled up. Grey pants with black vertical stripes were visible. The upper part of the body was naked, and no visible signs of injuries were detected. There were some remnants of rolled-up clothes (blue t-shirt and dark-blue jacket) on the right forearm and the left wrist. The corpse’s eyes were closed; the person had a moustache and beard of medium length. There was an entry hole in the area of the right temple, bordered by dried blood of a dark-brown colour. There was dried blood on the left outside ear. ...”
The report also described various items which had been found at the scene, apparently piled up in the yard of the property. Among these items were a number of arms and ammunitions, including four AK-74 automatic rifles, two Stechkin machine pistols, one PM machine pistol bearing the number MA 7863, six grenades and an explosive belt. In addition, there were a few laptop computers and portable radio transceivers with accessories.
With regard to the concealed underground shelter, the report noted its location and mentioned that it was three metres deep and was equipped with a metal ladder with five steps. It was also noted that the floor of the shelter was covered with rubble due to the fact that the entrance had been broken down using mechanical force. No detailed inspection of the shelter was conducted because of the “justified fear that the shelter may have been booby-trapped”. The report contained two photographs of the entrance to the shelter.
It appears that on the same date the corpse was transported to the military base in the village of Khankala.
According to the applicants, on 13 March 2005 the authorities blew up the house and its cellar.
3. Official investigation into the circumstances of the death of Mr Aslan Maskhadov
It appears that the circumstances of the death of Mr Aslan Maskhadov were investigated by the authorities in the context of the criminal investigation in case no. 20/849.
(a) Investigator’s actions in respect of the corpse and various items found at the scene of the incident
On 9 and 10 March 2005 investigator K. from the Prosecutor General’s Office (следователь Генеральной прокуратуры РФ) examined the corpse and other items found at the scene and decided that a number of expert examinations should be carried out. On 9 March 2005 the corpse of A.A. Maskhadov was identified by V.U. Khadzhimuradov and R.S. Maskhadov, apparently one of Aslan Maskhadov’s relatives.
(i) Examination report of 9 March 2005
On 9 March 2005 investigator K. conducted an examination of the corpse in the presence of two witnesses and with the participation of deputy Prosecutor General Sh., two medical experts Mal. and Mat., and prosecutor S. It appears that both video and photographic records of the examination were made. The report contained the following description of the injuries found on the corpse:
“... In the right temple area, two centimetres above the right eyebrow and five centimetres towards the outer edge of the right eye there is a round-shaped wound one centimetre in diameter. On the edges of the wound are grazes one and a half to two millimetres wide. The wound is gaping. There is an irregular oval-shaped bruise surrounding the wound measuring three and a half to four centimetres. ...
... In the left cheekbone area, four centimetres towards the outside of the bridge and half a centimetre below the lower edge of the left eye socket there is a wound of an irregular star-like shape measuring between 1.2 and 1.7 cm. The wound has six rays pointing at twelve, three, five, six, eight and nine o’clock, assuming that the body is placed in a straight vertical position. ...
... In both eye-sockets there are crimson-violet bruises measuring 3.5 to 4 cm on the right side and 1.8 to 4.5 cm on the left side. ...
... In the parietal region there is a wound of an irregular round shape with six rays at one, three, five, seven, eight, and eleven o’clock. The wound measures between 1.4 and 1.10 cm. ...
... In the right scapular area along the central scapular line, in the area of the fifth intercostal space and 131 cm from the soles of the feet, there is a round-shaped wound with its longitudinal axis pointing at four and ten o’clock. The right edge has grazes of up to four millimetres with a sloped wall. The opposing left edge has grazes of up to two millimetres with a sapped wall, the wound is open ...”
(ii) Forensic medical examination of 10 to 24 March 2005
On 10 March 2005 investigator K. ordered a forensic medical examination of the corpse, having put fourteen questions to the expert (see the list of questions and answers below). On the same date between 2 and 4 p.m. a medical expert, NK, carried out the examination of the body. The resulting report, bearing the number 13-e, contained a brief summary of the circumstances of the case, a very detailed description of the condition of the corpse both internally and externally, the forensic diagnosis and the expert’s conclusions, together with the answers to the fourteen questions put by investigator K.
The forensic diagnosis was the following:
“Firearm injury. Multiple (five) gunshot perforating wounds to the head (four) and one blind multi-trauma penetrating wound to the chest and the upper extremity:
– on the head: four perforating wounds penetrating the cavity of the skull with a one‑sided buttonhole fracture to the left temporal, left parietal and cervical bones and a multi-fragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head;
– on the chest and the upper extremity: one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra, damage to the soft tissue of the left half of the sternum and the soft tissue of the back surface of the upper part of the left shoulder, with the presence of a bullet at the end of the wound tract.
Double haemothorax (550 ml).”
The report gave the following answers to the fourteen questions:
“1. Answer to question no. 1: ‘What are the injuries to the presented corpse, what is their location, what was the method used and from what distance were they inflicted?’
A.A. Maskhadov had five gunshot wounds to the head, chest and the left upper extremity:
– on the head: four perforating wounds penetrating the cavity of the skull with a one‑sided buttonhole fracture to the left temporal, left parietal and cervical bones and a multi-fragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head;
– on the chest and the upper extremity: one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra, damage to the soft tissue of the left half of the sternum and the soft tissue of the back surface of the upper part of the left shoulder, with a bullet at the end of the wound tract.
No other injuries or marks have been found on the body of A.A. Maskhadov.
The following proves that the wounds were inflicted by gunfire: the perforating and multiple character of the injuries; the presence of the bullet at the end of the wound tract ...; bleeding in a cylindrical pattern along the line of the wound tracts; the oval shape and small size of the wounds; the slightly irregular, tucked-in edges of the wounds; the tissue damage in the centre of the wounds and the contusion collar on the edges of the wounds.
The gunshot entry wounds are situated:
– no. 1: in the left postotic area;
– no. 2: two and a half centimetres towards the back and two centimetres lower than wound no. 1;
– no. 3: 3.3 cm to the right of wound no. 2;
– no. 4: in the left parietal area, one centimetre to the left of the midline of the head;
– no. 8: in the projection of the sixth intercostal space on the right, along the midline of the scapula.
The following features indicate that these are entry wounds: the oval shape, the relatively small size, the presence of damaged skin in the centre, the slightly irregular edges, the presence of a contusion collar on the edges and the circular haemorrhage in the subjacent tissues.
The exit wounds are situated:
– no. 5: on the front to the left;
– no. 6: on the front to the right;
– no. 7: in the left cheekbone area.
The following features indicate that these are exit wounds: the irregular star-like and slot-like shape of the wounds; the irregular, ragged edges.
...
The entry wounds (nos. 1-3) on the head were inflicted as the result of a burst of fire from a hand firearm, which could have been an APS (Stechkin automatic) or a PM (Makarov) pistol, as suggested by the following indications: (a) the presence of a few entry holes situated on the same body surface; (b) the similar morphology of the entry wounds, which suggests that they were inflicted almost simultaneously, by the same type of arm and from the same or almost the same range. Entry wound no. 8 on the back of the corpse of A.A. Maskhadov could have been inflicted as the result of a burst of automatic fire or as the result of a single shot from a manual gun of the type described above.
Entry wound no. 4 was inflicted as the result of a single shot from a gun. The diameter of the shell was no less than 0.9 cm, as confirmed by the size of the wound and the perforating fracture of the left parietal bone. Most probably the shell exited through the open mouth. ...
The shots which wounded A.A. Maskhadov were not fired from close range (с неблизкой дистанции), a finding confirmed by the absence in the area of the entry gunshot wounds of any traces of impact from the by-products of shooting (gunpowder gases, soot, gunpowder particles, metal particles). The way in which the injuries are formed ... suggests that they were probably inflicted from a distance of one metre.
All injuries were inflicted shortly before death, as confirmed by:
– the character of the wounds – perforating wounds with massive destruction of the brain tissue as well as damage to the internal organs in the chest;
– slight haemorrhaging coupled with pronounced bone fractures;
– the lack of indication of healing of the injuries.
2. Answer to question no. 2: ‘In what sequence were the injuries inflicted?’
On the head the first to be inflicted was wound no. 1, then wound no. 2 and wound no. 3, then wound no. 4; this is confirmed by the smaller space between wounds no. 1 and no. 2 in comparison to the space between wounds no. 2 and no. 3 and the location of wound no. 4.
It is impossible to answer the question concerning the sequence in which the wounds on the head and the wound on the chest were inflicted because of the absence of objective signs indicating the sequence.
3. Answer to questions nos. 3, 4, 5 and 12: ‘Which injury exactly was the cause of death?’, ‘Did death occur immediately or within a certain period of time?’, ‘Would M. have been capable of performing any actions after receiving the injuries?’, ‘What was the cause of death?’
The cause of death of A.A. Maskhadov was bullet injuries to the head with damage to (destruction of) the cerebral hemispheres and membranes.
The death of A.A. Maskhadov occurred immediately on infliction of the gunshot wounds to the head (in a period of time ranging from a few seconds to a few minutes). This is confirmed by:
– the character of the injuries (perforating wounds with massive destruction of brain tissue);
– the slight haemorrhaging coupled with the presence of pronounced injuries to the bones;
– the absence of indications of healing of the said injuries.
After infliction of the said injuries A.A. Maskhadov could have performed actions (for a period ranging from a few seconds to a few minutes) during the stage of compensatory reaction of the organism.
4. Answer to question no. 6: ‘What was the body’s position when the injuries were being inflicted?’
The direction of the wound tracts in the head was (on the assumption that the body is in a straight vertical position): (a) from right to left; (b) from bottom to top as regards wound tracts nos. 1-3, and from top to bottom as regards channel no. 4; (c) slightly from back to front.
The direction of the wound tract in the area of the chest was (on the assumption that the body is in a straight vertical position): (a) from left to right; (b) slightly from bottom to top; (c) slightly from back to front.
Hence, during the shooting the perpetrator’s weapon was situated behind, to the right and slightly below the level of the wounds to the head and the chest of A.A. Maskhadov, his head being turned to the left.
5. Answer to question no. 7: ‘Was the corpse’s position changed?’
The corpse’s position could have been changed as a result of its retrieval, inspection and transport.
6. Answer to question no. 8: ‘Are there any signs indicating the possibility that the injuries were inflicted by the victim himself?’
None of the injuries found on A.A. Maskhadov could have been self-inflicted. This is confirmed by the range from which the shots were fired, the location of the entry gunshot wounds in places inaccessible to the individual himself and the direction of the wound tracts.
7. Answer to question no. 9: ‘What is the victim’s blood group?’
Report no. 148 on the forensic biological examination shows that A.A. Maskhadov belonged to blood group Aβ (II).
8. Answer to question no. 10: ‘Had the victim consumed alcohol or narcotic substances shortly before death and in what quantities?’
During forensic chemical examination of the biological samples taken from the corpse of A.A. Maskhadov, no ethyl alcohol or narcotic substances were detected.
9. Answer to question no. 11: ‘Did the victim take any food shortly prior to death and, if so, what did he eat?’
A.A. Maskhadov did not consume any food prior to death, as evidenced by the lack of food in the stomach.
10. Answer to question no. 13: ‘How long ago did death occur?’
The timing of death of A.A. Maskhadov does not contradict the timing indicated in the decision, namely 8 March 2005.
11. Answer to question no. 14: ‘Is there a causal link between the injuries received and death?”
There is a direct causal link between the injuries received by A.A. Maskhadov in the form of gunshot wounds to the head and his death.”
(iii) Forensic molecular genetic examination dated 17 March 2005
On 10 March 2005 the investigator ordered a forensic medical examination of samples of the corpse’s blood, muscle tissue and nail plate and samples taken from A.A. Maskhadov’s two nephews once removed. The expert, Ko., was asked to establish whether the body in question was that of A.A. Maskhadov.
On 11 March 2005 Ko. received the decision and on the same date started the examination. The expert finalised the examination on 14 March 2005. The resulting report, bearing the number 34-MT, was completed on 17 March 2005 and contained a detailed description of the scientific methods used. The expert’s conclusion was that a combination of genetic features found in the samples taken from the corpse and from the dead man’s nephews confirmed the blood relationship between them with a probability of 99.92 percent.
On 29 March 2005 the investigator issued a decision recapitulating the events of 1 September 2004 and the nature of the charges against Aslan Maskhadov, and noted that the investigation had collected evidence of the latter’s involvement in masterminding the attack. The decision went on to state that on 8 March 2005 the authorities had found the body of an unidentified man who was later identified as Aslan Maskhadov. The decision then concluded that the criminal case against Aslan Maskhadov should be closed owing to his death.
(iv) Forensic ballistic examinations in respect of the bullet found in the corpse and the firearms
On an unspecified date between 10 and 28 March the investigator ordered a ballistic examination of the bullet found in the corpse and of two Stechkin pistols and one PM pistol bearing the number MA 7863, found at the scene on 8 March 2005. An expert was requested to identify the gun which had fired the bullet in question. As a result of this examination, the expert concluded that the bullet had been fired from PM pistol number MA 7863. It appears, however, that the report contained contradictions concerning the methods of comparative examination, and on 28 March 2005 the investigator ordered a fresh report.
Between 28 March and 4 April 2005 ballistic experts R. and Yu. carried out a fresh examination of the bullet and the guns. They too came to the conclusion that the bullet had been fired from PM pistol number MA 7863.
(b) The investigator’s actions in respect of the persons arrested at the scene of the incident
The case file materials submitted by the Government contain records of interviews with three persons arrested on 8 March 2005 and, in particular, V.U. Khadzhimuradov, V.L. Murdashev and S.S. Yusupov. In the case of V.U. Khadzhimuradov, the authorities also carried out a psychiatric examination.
The relevant parts of the interview records and the psychiatric report are reproduced in chronological order.
(i) Record of interview with S.S. Yusupov dated 10 March 2005
On 10 March 2005 between 7.30 and 9.50 p.m. an investigator from the Prosecutor General’s Office conducted an interview with Skandarbek Sultanovich Yusupov, who had the status of suspect in case no. 20/849. The interview was conducted in the presence of his lawyer, L.L. Dzardanova. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings.
During the interview the suspect explained that on 8 or 9 November 2004 he had been asked by his cousin to shelter Mr Aslan Maskhadov in his house in the village of Tolstoy-Yurt. The suspect described the circumstances of the arrival of Mr Aslan Maskhadov, his stay in the house and the cellar and the latter’s subsequent meeting with Shamil Basayev on 12 or 13 November 2004.
As regards the events of 8 March 2005, the suspect gave the following statement:
“... On 8 March 2005 at around 9 o’clock I was sitting with my wife and daughter in the kitchen when armed men entered by the yard and started shouting: ‘Come out with raised hands one by one’. My wife and daughter and I came out and they asked me whether there were any strangers in the house. I told them that my cousin Ilyas was there, whereupon he came out. Then I was asked whether the building had any cellars, and I showed them the cellar situated under the new house, which is accessed through the new house. They then started a search and in the old house they found the entrance to the cellar in which Aslan Maskhadov, Vakhid and Viskhan were staying. The servicemen blew up the entrance to the cellar and as a result the entrance became obstructed. They then started digging underneath and one of them shouted: ‘I see a corpse!’. They started shouting through the hole they had made to see whether there was anyone alive in there and some time later I saw them taking Vakhid and Viskhan out of the old house.”
(ii) Record of interview with V.U. Khadzhimuradov dated 10 March 2005
On 18 March 2005 between 5.05 and 6.55 p.m. an investigator from the Prosecutor General’s Office, in the presence of the lawyer A. Elkanov, interviewed Viskhan Umarovich Khadzhimuradov, who had the status of accused in criminal case 20/849.
The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily.
The suspect explained that he was A.A. Maskhadov’s nephew and had also been his personal bodyguard and assistant. He described various episodes from their work together.
He also stated as follows:
“On 8 March 2005 at 9 o’clock I was with my uncle Aslan and Vakhid Murdashev in the bunker under the private house situated in the village of Tolstoy-Yurt; I cannot remember the exact address. At that moment the sound of blows rang out. Then there was an explosion near the cellar’s hatch leading to the bunker. Uncle Aslan took his Stechkin pistol and fired a shot at his head. After that moment I can hardly remember what happened. I only recall that the servicemen dragged me and Vakhid out of the cellar. I would like to clarify that Uncle Aslan, Vakhid and I had lived in the house in question in the village of Tolstoy-Yurt since the beginning of December 2004. Before that, Uncle Aslan and I had been living in the forest near the mountain village of Avturi in the Kurchaloyevskiy District of the Chechen Republic.”
(iii) Record of interview with V.L. Murdashev dated 18 March 2005
On 18 March 2005 between 3.40 and 5.25 p.m. an investigator from the Prosecutor General’s Office interviewed Vakhid Lakayevich Murdashev, who had the status of suspect in criminal case 20/849, in the presence of the lawyer A.A. Pliev. V.L. Murdashev was suspected of having been a member of the armed group and of being in possession of firearms. The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily.
It appears that the suspect had been questioned previously on at least one occasion, as the record stated that it was an “additional interview” and that the suspect had “fully endorsed his earlier statements”.
The suspect explained that he had been A.A. Maskhadov’s political assistant, and described various episodes from their work together.
As regards the events of 8 March 2005, the suspect gave the following statement:
“On 8 September 2005 A.A. Maskhadov and Viskhan Khadzhimuradov and I were in the bunker under the house of Mr Yusupov. At around 9.30 a.m. we heard heavy footsteps on the ground above and thought that there were many people up there. We switched the light off. After about an hour the entrance was discovered, as there was a glimmer of light coming through the cover blocking access to the bunker. In a few minutes a few shots were fired at the cover from the outside. At this point I was on the floor (at the place marked ‘C’ on the sketch map I drew earlier). A.A. Maskhadov was on the trestle bed (at the place marked ‘A’ on the map). V. Khadzhimuradov was on the trestle bed facing A.A. Maskhadov (at the place marked ‘B’ on the map). After the shots were fired I moved to the trestle bed and sat near V. Khadzhimuradov (at the place marked ‘1’ on the map). At that point I had in my right hand my APS-Stechkin pistol which was at half-cock and was not loaded, although it had a cartridge full of bullets. Maskhadov stayed where he was and held his APS-Stechkin gun. I don’t know whether it was loaded with bullets. At that moment Maskhadov said, in particular, ‘While I am alive, the enemy won’t touch me’, so I understood that he wanted to commit suicide. Also, there was an explosive device next to him, for personal self-destruction, which he did not use so as not to hurt me and V. Khadzhimuradov. Then V. Khadzhimuradov asked A.A. Maskhadov, in particular ‘What are we to do[?]’ to which the latter responded ‘You should not do it’, meaning that we should not kill ourselves. Then there was an explosion, as a result of which I lost consciousness. When I came round I was lying on the floor (at the place marked ‘2’ on the map). There was dust in the bunker and nothing could be seen. There was no gun in my hand at that moment. I called V. Khadzhimuradov and asked him, in particular: ‘How is Aslan?’ to which he responded in Chechen: ‘He is no more’. I moved to the place where I had been sitting (at the place marked ‘1’ on the sketch). The body of A.A. Maskhadov was in the same place as before and was obstructed by a foam-rubber mattress, but I could not see it. Then ... I remember the fumes started to appear and V. Khadzhimuradov and I started choking. I shouted in the direction of the passage ‘There are people alive!’ and started climbing upwards, with V. Khadzhimuradov following. There were people in military uniform upstairs who escorted me and V. Khadzhimuradov to the yard.”
In response to the investigator’s question whether the suspect had heard any shots being fired inside the bunker, the suspect replied as follows:
“I myself did not shoot and did not see or hear A.A. Maskhadov or V. Khadzhimuradov shooting while in the bunker.”
In response to the investigator’s question concerning the cause of death of A.A. Maskhadov, the suspect stated as follows:
“I think that A.A. Maskhadov shot himself with his APS-Stechkin pistol. But I don’t know how this actually happened, as I lost consciousness after the explosion.”
(iv) Record of interview with V.U. Khadzhimuradov dated 18 March 2005
On 18 March 2005 between 5.05 and 6.55 p.m. an investigator from the Prosecutor General’s Office again interviewed V.U. Khadzhimuradov, this time in the presence of the lawyer E. Dzhioyeva.
The suspect was given formal notice of his rights and also made a statement to the effect that no pressure had been put on him by the authorities in connection with the criminal proceedings and that he had decided to give evidence in the case voluntarily.
The suspect explained that he was A.A. Maskhadov’s nephew and had also been his personal bodyguard and assistant. He described various episodes from their work together.
As regards the events of 8 March 2005, the suspect made the following statement:
“On 8 March 2005 at around 9 a.m., Uncle Aslan, Vakhid and I were in the cellar. At that moment, we heard some knocks and understood that someone was trying to break down the door leading to the cellar. In response, Uncle Aslan, using his right hand, put the pistol to the temple area of his head. At that moment there was an explosion. At the moment of the explosion Uncle Aslan was kneeling in front of me, facing me, and Vakhid was sitting half a metre to the left. As result of the explosion, I lost consciousness. After some time, a couple of seconds as I understood, I started gradually to come round. I saw that Uncle Aslan’s head was lying on my right leg, I felt warmth and realised that the blood was oozing out of my uncle’s wounded head down my right leg. Then Vakhid and I started shouting that we were coming out. We came out and the Spetznaz soldiers told me to go downstairs to the cellar and tie Uncle Aslan’s chest and legs so that it would be more comfortable to lift him up from the cellar. I carried out the instruction, after which Vakhid and I were arrested by the Spetznaz soldiers. I would like to explain that at the moment when the Spetznaz soldiers were breaking down the doors leading to the cellar, Uncle Aslan told me and Vakhid: ‘If I am still alive, shoot me in the heart’.”
(v) Record of interview with V.U. Khadzhimuradov dated 19 March 2005
During the interview which took place on 19 March 2005 between 3.25 and 4.05 p.m., V.U. Khadzhimuradov gave the following statement:
“I wish to amend my previous statements. According to my previous statements, on 8 March 2005 at 9 o’clock, the Spetznaz servicemen started breaking down the door leading to the cellar where I was staying with my uncle, Aslan Alievich Maskhadov, and my uncle’s assistant, Murdashev Vakhid. We were in the cellar, under the one-storey private house situated in the village of Tolstoy-Yurt in the Chechen Republic. After we heard the knocks in the cellar, Uncle Aslan told me and Vakhid: ‘Be prepared! Don’t think about yourselves, think about me! If I am still alive, shoot me in the heart!’ After hearing these words I cocked my PM pistol. At that moment Uncle Alsan was sitting in front of me, at a distance of half a metre; Vakhid was sitting near me, to the left. Then the explosion happened. I felt bad, my head felt like it was being squeezed. At that moment Aslan Maskhadov fell on me so that his head was on my right leg. At that very second, without taking aim, I fired two shots in a row at Uncle Aslan. I don’t know where the bullets went. Then in a few seconds I lost consciousness. Afterwards I came round and along with Vakhid surrendered to the Spetznaz fighters. I would like to clarify that I took Uncle Aslan’s words as an order; according to Chechen custom, I cannot disobey and fail to execute an order given by Aslan Maskhadov.”
(vi) Record of interview with V.U. Khadzhimuradov dated 7 June 2005
On 7 June 2005 between 12.55 and 3.30 p.m. an investigator from the Prosecutor General’s Office interviewed V.U. Khadzhimuradov. The interview took place in the presence of the lawyer A.B. Elkanov. The record noted that the accused was giving evidence in the case voluntarily.
The accused described his relationship with A.A. Maskhadov as well as various instances of collaboration between them, and the meetings between A.A. Maskhadov and Shamil Basayev.
As regards the events of 8 March 2005 the accused gave the following statement:
“Around one month after the departure of Shamil Basayev, on 8 March 2005, A.A. Maskhadov, Vakhid Murdashev and I were in the cellar. Ilyas Iriskhanov was in the house. We were all asleep, and were woken up because we heard some people walking in the yard, talking and looking for an entrance to the cellar. Then they started knocking on the hatch covering the entrance to the cellar. At that moment I was sitting on the bed, with A.A. Maskhadov sitting in front of me and V. Murdashev sitting beside him on the mattress. A.A. Maskhadov told me and V. Murdashev that they were coming after him, but that he would not surrender and that if he remained alive I should shoot him in the heart. After saying these words, he put a gun to his right temple. I held my PM pistol in my right hand, it was loaded and cocked, and at that moment the explosion happened. I was thrown back by the blast, I struck my head against the wall and lost consciousness. Some time later I came round, my head was aching badly, as if it were being squeezed. I could hardly see anything, there was a mist in my eyes, I had no idea what was going on at that moment. At the moment of the explosion I could hear the shots but I cannot say who was shooting and where. I cannot exclude the possibility that at the moment of the explosion, when I was thrown back, my pistol might have gone off, but I cannot say what direction the shot went in. After the explosion when I came round I felt that someone was lying on my right leg, then it occurred to me that it was A.A. Maskhadov and that his head was bleeding. Then Vakhid Murdashev and I started shouting to the people above that we were coming out. Murdashev Vakhid was the first to come out of the cellar. I followed straight behind, then went back into the cellar again and tied up the body of A.A. Maskhadov so that it could be taken out of the cellar.”
(vii) Psychiatric examination of V.U. Khadzhimuradov by a group of experts dated 8 June 2005 (no. 241)
On 3 June 2005 the investigator ordered a psychiatric expert examination of V.U. Khadzhimuradov, in view of the seriousness of the charges against him and the cerebrocranial injury he had received on 8 March 2005. The investigator put the following questions to the board, consisting of four experts in psychiatry and psychology, Doctors S., T., Kh. and B.:
“1. Taking into account his particular sensory faculties (eyesight, hearing, etc.) and the circumstances of his arrest on 8 March 2005, was V.U. Khadzhimuradov capable of accurately perceiving the main circumstances of the case?
2. Does V.U. Khadzhimuradov display any indications of increased propensity towards exaggeration of the events he describes?
3. Does V.U. Khadzhimuradov display any indications of increased suggestibility and submissiveness?
4. Did V.U. Khadzhimuradov, or does he, suffer from a mental illness and, if so, which one?
5. If so, how long has he been suffering from the illness and is it temporary or permanent?
6. Is he suffering from any temporary mental disorder or the presence of a particular mental condition which could have influenced his proper perception of the events which took place on 8 March 2005?
7. If so, what is the nature of this temporary disorder and would V.U. Khadzhimuradov have been aware of his actions and able to control them?
8. Would he have been aware of his actions and able to control them before 8 March 2005?
9. What is the mental state of V.U. Khadzhimuradov at present and is he aware of his actions and capable of controlling them?
10. Is V.U. Khadzhimuradov in need of medical treatment?”
The board of experts was given access to the evidence in criminal case no. 20/849 and also examined the accused in person.
The examination apparently took place on 8 June 2005.
The resulting report recounted the circumstances of the case in the following manner:
“... On 8 March 2005, during the investigation of the present criminal case, in the course of carrying out measures aimed at detaining persons suspected of having organised and carried out illegal acts in school no. 1, V.U. Khadzhimuradov was arrested. Immediately before his arrest there was an explosion at the entrance to the cellar during which, as made clear by the interview records, he lost consciousness for an indefinite period of time. During the interview he gave evidence to the effect that he was the grandson of the sister of A.A. Maskhadov, and that since 2003 he had been constantly in his company. He was in charge of protecting A.A. Maskhadov, supervised the cooking and kept an eye on the state of his wardrobe and firearms. Since October 2003 they had been living in the village of Tolstoy-Yurt. For the last two weeks they had been hiding in the cellar of the house. On 8 March 2005 at around 9 o’clock they were in the cellar with A.A. Maskhadov and his advisor V.L. Murdashev. Having heard the talk and commotion in the yard they realised that they had been located. A.A. Maskhadov told them that he would not give in alive and that if he should remain alive, V.U. Khadzhimuradov would have to shoot him in the heart. After these words, he put a cocked pistol to his temple. At that moment the explosion occurred and V.U. Khadzhimuradov struck his head against the wall and lost consciousness. He had difficulty remembering what happened next. ...”
The report then summarised various statements that the accused had given earlier in connection with the events following the explosion:
“At one of the interviews he stated that A.A. Maskhadov had shot himself in the head. He did not remember clearly the events which took place after that moment; the servicemen had dragged him and Murdashev out of the cellar (10.03.05).
Subsequently he gave contradictory statements. Hence, during the interview dated 18.03.05 he stated that ‘having gradually come round’, he had seen Maskhadov’s head on his leg, felt the warmth and realised that blood was spilling out of the injured head of his uncle.
During the interview of 19.03.05 he stated that when the explosion occurred his head felt as if it were being squeezed. A.A. Maskhadov had fallen on him and ‘at that moment, without taking aim’, he had fired two consecutive shots, after which he lost consciousness.
At the interview on 07.06.05 he confirmed his previous statements to the effect that A.A. Maskhadov, before the explosion in the cellar, had told him to shoot him in the heart if he should remain alive. At the same time Maskhadov himself had put a pistol to his temple. The accused had held his cocked gun in his hand. When the explosion occurred, he was thrown back by the blast, struck his head against the wall and lost consciousness. When he came round some time later, his head was aching badly as if it were being squeezed and he could hardly see anything. His mind was in a ‘fog’, and at that moment he could not perceive the events around him. At the moment of the explosion he heard the shots but could not say who was shooting and where. He could not rule out that his gun might have gone off when the blast threw him back, but could not say what direction the shots went in. When he came round, he felt that someone was lying on his leg. Later he realised that it was A.A. Maskhadov, whose head was bleeding. After that he and Murdashev started shouting upstairs that they were coming out. Murdashev was the first to come out, followed by him. On the orders of the Spetznaz soldiers he returned to the cellar, where he tied up the body of A.A. Maskhadov so that it could be taken out (data from the interview record of 07.06.05).”
The board of experts examined the physical and mental condition of the accused and talked to him about his memories of the events of 8 March 2005. The report described the perception of events by the accused immediately after the explosion in the following manner:
“As regards his condition immediately following the explosion in the cellar [the accused] speaks vaguely and inconsistently, saying that he has trouble remembering that period of time. He remembers the moment of the explosion, seeing a flame and hearing shots, after which he struck his head against the wall and lost consciousness, ‘blacking out’. When he regained consciousness he was unable to hear, felt like vomiting and suffered from dizziness. His head felt like it was being squeezed, he could hear a ringing in his head, a humming noise. There was a ‘mist’ before his eyes, and everything was fading. He could not understand what had happened. He felt that someone was lying on his leg, something warm was leaking. He does not remember how exactly he took the decision to come out of the cellar, he only heard the voice of Murdashev calling ‘Let us come out!’. He vaguely remembers crawling up through the trapdoor. He cannot say how much time passed from the moment of the explosion until he came out: ‘Maybe an hour, maybe half an hour’.”
The board of experts came to the following conclusions as regards the state of mind of V.U. Khadzhimuradov before 8 March 2005:
“... the person examined, V.U. Khadzhimuradov, does not suffer from any mental disorder or disability. Accordingly, he would have been aware of the acts of which of he was accused and could understand their danger to society and control them. At present, V.U. Khadzhimuradov is aware of his acts and capable of controlling them, of correctly perceiving the relevant circumstances of the case before 8 March 2005 and of giving accurate evidence in that connection.”
These are the conclusions of the experts as regards the psychological condition of the accused on 8 March 2005:
“On 8 March 2005 V.U. Khadzhimuradov received a closed craniocerebral injury (brain contusion), which was accompanied by loss of consciousness and later manifested itself in acute loss of hearing, with symptoms affecting the entire brain (severe headache, vertigo, nausea, ringing and buzzing in the head), the aforementioned state of being stunned and, as a result, distorted perception of the surrounding circumstances (‘could hardly see’, ‘there was a mist before [his] eyes’, ‘fading’, ‘could not understand what had happened’, ‘could not understand anything about what was happening’ – extracts from the interview records and the clinical consultation with Mr Khadzhimuradov). This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate posttraumatic cerebral asthenia. The said disorders deprived V.U. Khadzhimuradov of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on 8 March 2005. No indication exists for compulsory medical treatment.”
(viii) Record of interview with V.L. Murdashev dated 9 June 2005
On 9 June 2005 between 12.37 and 4.19 p.m. an investigator from the Prosecutor General’s Office again interviewed Vakhid Lakayevich Murdashev, who by now had the status of accused in criminal case 20/849. The interview took place in the presence of the lawyer I.T. Ostayeva.
The accused recounted various episodes from his work with A.A. Maskhadov.
As regards the events of 8 March 2005 the accused stated as follows:
“About two weeks before we were found, information reached us that Yusupov’s nephew was being looked for. Allegedly the military authorities were looking for him. Out of fear that he would be looked for in Yusupov’s house, Maskhadov ordered us to stay in the cellar during the daytime. We kept awake during the night, and after morning prayer we entered the cellar and slept. Even in the cellar Maskhadov worked on the computer. Maskhadov and Khadzhimuradov slept on the couch. I slept on the mattress on the floor. The size of the cellar was 2.5 m by 2.5 m. The walls were made of concrete and brick, the floor was made of concrete, and there was electric wiring in the cellar. We lived a monotonous life. During those two weeks Iriskhanov started living in Yusupov’s house. On 8 March 2005 between five and six o’clock three of us went down to the cellar and went to sleep. We woke up because of the noise upstairs. It was clear that people were moving upstairs. I think I looked at my watch, it was around 9 o’clock. The entrance to the cellar could be locked by a wooden hatch, there was linoleum on it ... which could be covered by a carpet. Every morning we were locked into the cellar by Yusupov and Iriskhanov. If it was necessary we could knock and they would open it for us. It happened only once. Before that our knocks could not be heard. Maskhadov took his weapon. He had previously mentioned that he would not surrender. On that day he literally said that ‘the enemy would not touch him while he was alive’. The light in the cellar was switched on. Maskhadov was sleeping in his sleeping bag. He started looking for his explosive belt. Maskhadov himself asked Khadzhimuradov where his explosive device was. Then it became apparent that our location had been discovered, a gap appeared in the hatch. Maskhadov was holding his gun in his hand. Khadzhimuradov asked him what we were supposed to do. Maskhadov replied that we should not do it. Some time after that the shots rang out; they seemed to be coming from the hatch. The size of the hatch was 60 cm by 60 cm. I moved sideways, away from the hatch. After that at some point I lost consciousness, and when I came round I was on the floor. Before losing consciousness I had taken out my gun and held it in front of me near the belt. After I came round I discovered that everything was full of smoke. My first thought was that Maskhadov had detonated the explosive device. When I came round I was wondering why I was not injured. I called to Khadzhimuradov and asked him what had happened to Aslan. He replied that Aslan was no more, so I understood that he was already dead. Then I came upstairs and Khadzhimuradov came out following me. I saw Maskhadov lying covered with a mattress. After we came out I did not speak to Khadzhimuradov. Some time after that they took Maskhadov out of the cellar. As soon as I got upstairs I realised that the explosion had occurred when they tried to open up the hatch.”
(c) Conclusions of the authorities concerning the circumstances of the death of A.A. Maskhadov
(i) Death certificate issued on 2 June 2005
On 2 June 2005 the head of the civil registry of the Groznenskiy District of the Chechen Republic, A., issued death certificate I-OZh no. 550051 in respect of Oslan Aliyevich Maskhadov, born on 21 September 1951. The certificate stated that the death had taken place in the village of Tolstoy‑Yurt on 8 March 2005.
(ii) Decision of 14 July 2005 not to initiate criminal proceedings in respect of the death of A.A. Maskhadov
On 14 July 2005 the investigator examined the evidence in criminal case no. 20/849. The investigator noted that Mr A.A. Maskhadov had been sought on charges relating to his alleged involvement in the terrorist attack on the school in the town of Beslan on 1 September 2004. The decision further noted:
“In the course of carrying out special measures aimed at discovering the location of A.A. Maskhadov it was established that he had been hiding in the property belonging to S.S. Yusupov ...
On 8 March 2005 in the cellar of the said property the corpse of A.A. Maskhadov, bearing traces of multiple gunshot injuries, was found. At the same time V.L. Murdashev and V.U. Khadzhimuradov, who had been in the same cellar, as well as I.G. Iriskhanov and S.S. Yusupov, who were in charge of outside protection, were arrested and found to be in possession of ammunition and firearms.
According to the conclusions of forensic medical report no. 13-e of 24 March 2005, the death of A.A. Maskhadov occurred as a result of gunshot wounds to the head with damage (destruction) to the brain hemispheres and its membranes. The victim had:
– four perforating wounds penetrating the cavity of the skull with a one‑sided buttonhole fracture to the left temporal, left parietal and cervical bones and a multi-fragment fracture to the frontal bone, with damage to brain tissue, haemorrhaging in its ventricles and above and beneath the hard and soft brain tunic, a perforating fracture to the big wing of the main bone on the left, a fracture to the left cheekbone and haemorrhaging into the soft tissue of the head;
– one blind multiple wound to the chest perforating the pleural cavities, with a fracture of the seventh right rib and damage to the lungs, a double-sided buttonhole fracture to the main part of the seventh thoracic vertebra and damage to the soft tissue of the left half of the sternum and to the soft tissue on the back of the upper part of the left shoulder, with a bullet at the end of the wound tract.
The entry gunshot wounds were situated in the occipitoparietal areas and in the projection of the sixth intercostal space on the right, along the middle scapular line. The entry wounds on the head were inflicted within moments of each other, not from close range, from the same type of weapon, and from the same or almost the same range.
At the moment of shooting the weapon was situated behind the victim, towards the right side, slightly below the level of the wounds to the head and chest of A.A. Maskhadov, the victim’s head having been turned to the left. The resulting injuries could not have been self-inflicted.
On 8 March 2005 during examination of the place where the corpse was discovered and the persons located in the cellar of the house were arrested ... an APS pistol no. VP 1918 I and an APS pistol no. GN 2020 I, belonging to A.A. Maskhadov and V.L. Murdashev, and a PM pistol no. MA 7863, belonging to V.U. Khadzhimuradov, were recovered from V.L. Murdashev and V.U. Khadzhimuradov.
According to the [ballistic] examination of the recovered weapon and the bullet, as detailed in the [ballistic] experts’ report no. 3-k dated 4 April 2005, the bullet removed from the corpse of A.A. Maskhadov was fired from a Makarov (PM) pistol no. MA 7863, that is from the pistol belonging to V.U. Khadzhimuradov.
In the course of the examination which was carried out it was established that on 8 March 2005, in the course of the search of the property of S.S. Yusupov, the latter categorically denied the presence of any strangers on the property and the presence of other cellar rooms equipped for a long-term stay in which fugitives from the law‑enforcement bodies could be located. In the course of measures aimed at examining the ... location due to be demolished a secret passageway was located leading to the underground shelter, with a hatch blocking access from the outside. With a view to enabling the underground bunker to be examined unhindered, an explosive device of small capacity was used, providing free access to the cellar. V.L. Murdashev, V.U. Khadzhimuradov and the corpse of A.A. Maskhadov were then located.
V.U. Khadzhimuradov, when questioned concerning the circumstances of what happened, stated that he, A.A. Maskhadov and V.L. Murdashev had been hiding for a long time in an underground bunker situated in Mr Yusupov’s house. On 8 March 2005 he, A.A. Maskhadov and V.L. Murdashev had been in the cellar. They were awoken by the sound of people talking while looking for the entrance to the cellar. At that moment, Khadzhimuradov was sitting on the couch and A.A. Maskhadov, who said that they were coming after him but that he would not surrender alive, was sitting in front of him. The latter then put a gun to his temple, having said that if he should still be alive, then Khadzhimuradov, who was holding a cocked gun in his right hand, should shoot him in the heart. After the explosion occurred [Khadzhimuradov] was thrown back and struck his head against the wall. For some time he lost consciousness. He did not know what happened next: his head was aching and he felt as if there was a mist in his head. At the moment of the explosion he heard shots, but could not say who was shooting and where: he thought the shots could have been from his gun. Then he discovered that A.A. Maskhadov, whose head was bleeding, was lying on his right leg.
According to the statements of the accused V.L. Murdashev, on 8 March 2005 at around 9 o’clock, after A.A. Maskhadov realised that their shelter had been discovered, he said that ‘while he was alive the enemy would not touch him’. [V.L. Murdashev] understood this to mean that A.A. Maskhadov wanted to commit suicide. Khadzhimuradov asked what he should do. Maskhadov replied: ‘You should not kill yourself.’ Then the explosion occurred and he, Murdashev, lost consciousness. When he came round, he discovered that he was on the floor. He asked Khadzhimuradov about Maskhadov and heard that Maskhadov was no more.
According to the report of psychiatric examination ... no. 241 dated 8 June 2005 V.U. Khadzhimuradov received a closed craniocerebral injury (brain contusion) during the explosion, accompanied by loss of consciousness and later manifesting itself in acute loss of hearing, with symptoms affecting the entire brain (severe headache, vertigo, nausea, ringing and buzzing in the head), the state of being stunned, as referred to, and, as a result, distorted perception of the surrounding circumstances. This is also confirmed by the fragmentary character of his memories and contradictions in his statements concerning the period of time in question and the fact that he currently displays symptoms of moderate posttraumatic cerebral asthenia. The said disorders deprived V.U. Khadzhimuradov of the capacity adequately to perceive the surrounding circumstances and relevant events of the case and to control his actions at the moment of and immediately following the craniocerebral injury sustained on 8 March 2005.
Following analysis of the circumstances established during the investigation – the statements of V.U. Khadzhimuradov and V.L. Murdashev and the conclusions of the [ballistic] expert examination indicating that the bullet extracted from the corpse of A.A. Maskhadov had been fired from the pistol of V.U. Khadzhimuradov – it can be stated that the death of A.A. Maskhadov occurred as a result of shots fired by V.U. Khadzhimuradov. The data received in the course of the [psychiatric] examination of V.U. Khadzhimuradovconfirm that Khadzhimuradov did not kill A.A. Maskhadov intentionally. The fact that he was suffering from a specific condition caused by the explosion which prevented him from accurately perceiving his environment, being aware of the nature of his actions and controlling them, indicates that V.U. Khadzhimuradov, when he killed A.A. Maskhadov, was in a state of insanity [состояние невменяемости]. Accordingly, his actions do not constitute corpus delicti as defined in part 1 of Article 105 of the Criminal Code.”
The investigator accordingly concluded that there were grounds for a decision not to initiate a criminal prosecution against V.U. Khadzhimuradov for the killing of A.A. Maskhadov.
(d) Official notification of the family of A.A. Maskhadov
The decision of 14 July 2005 did not state whether the family or any of the relatives of A.A. Maskhadov were to be notified.
Since A.A. Maskhadov’s family had previously gone into hiding and lived abroad it is also unclear whether the authorities were in any position to notify them of their own motion.
(e) Applicants’ attempts to exhaust domestic remedies in respect of the decision of 14 July 2005
By letters of 29 March and 13 November 2005 and various dates in 2006 the applicants requested, among other things, that they be granted access to the medical documents stating the cause of their relative’s death, that they be provided with copies of the decisions relating to the procedural status of the deceased in the criminal proceedings against him and that a criminal case be opened in connection with his death.
On 10 February 2006 Mr I.V. Tkachev, head of department in the Directorate General of the Prosecutor General’s Office with responsibility for the Southern Federal District, responding to the applicant’s request to see the medical documents on the cause of the death of Mr Aslan Maskhadov, stated that the possibility existed in principle but that there were no grounds for providing the applicants with a copy of the relevant medical documents at that time.
In another letter dated 10 February 2006 Mr I.V. Tkachev further stated as follows in response to the request to initiate a criminal case in connection with the death of Mr Aslan Maskhadov:
“... It has been established that during the investigation of case no. 20/849 on the terrorist act committed in the town of Beslan in the Republic of Northern Ossetia-Alaniya, the circumstances surrounding the death of A.A. Maskhadov were examined. The evidence in the criminal case indicates that the death of A.A. Maskhadov occurred as a result of the use of firearms by V.U. Khadzhimuradov, who happened to be in the same secret shelter.
According to the conclusions of the psychological/psychiatric examination, ... at the moment of the explosion V.U. Khadzhimuradov sustained a closed craniocerebral injury coupled with loss of consciousness, general cerebral symptoms (severe headache, dizziness, nausea, ringing and buzzing in the head), pronounced obnubilation and, as a consequence, distorted perception of surrounding events. This is confirmed by the fragmentary nature of his memories and the incoherent character of his statements concerning that period of time and the presence of symptoms of mild posttraumatic cerebral asthenia.
In view of the above, a decision was taken not to initiate criminal proceedings in respect of V.U. Khadzhimuradov for the murder of A.A. Maskhadov, in accordance with Article 24-1 (2) of the Code of Criminal Procedure.
Under Article 148 of the Code, a copy of the decision not to initiate criminal proceedings is sent to the applicant. Since the prosecution never received any crime report [from anyone in this connection], no copy of [the decision] was sent to the applicant. At present, the prosecution has no reason to furnish a copy of [the decision] to anyone.
A decision to recognise an individual as a victim in connection with the damage sustained ... is taken only within the framework of criminal proceedings already initiated. Since it was decided not to initiate criminal proceedings in respect of V.U. Khadzhimuradov in relation to the murder of A.A. Maskhadov, there are no legal grounds for recognising you as victims.”
As regards the applicants’ request that they be given copies of documents relating to Mr A. Maskhadov and his procedural status as an accused in the criminal case concerning the terrorist act committed in the town of Beslan in the Republic of Northern Ossetia-Alaniya, the same prosecutor noted as follows:
“... Under Article 172 of the Code of Criminal Procedure, a copy of the decision to charge an individual [with commission of a crime] is served by an investigator on the accused, his counsel and the competent prosecutor. The [relevant] law does not list any other person as having the right to receive a copy of [that decision].
Article 108 of the Code contains an exhaustive list of persons who have the right to receive copies of decisions on application of a measure of restraint (detention) in respect of the suspect or the accused.
Under ... Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, the official in charge of the investigation must notify the relatives of a person [whose criminal prosecution for terrorist activity was discontinued because of his or her death] of the location of the civil registry office that is to issue them with the death certificate. [The official also has discretion as to whether to provide the relatives with a copy of the autopsy report]. At present, there are no grounds for providing the relatives with a copy of the medical forensic report on the corpse of A.A. Maskhadov.
[In view of the above, the applicant’s requests are rejected].”
It does not appear that the applicants were provided with a copy of the decision of 14 July 2005 not to initiate criminal proceedings in respect of the death of A.A. Maskhadov.
The Government produced information notes dated 19 February 2007 from the Moscow City Court, the Rostov Regional Court and the Stavropol Regional Court, certifying that the applicants had never applied to any of the courts in the Moscow, Rostov or Stavropol regions in connection with the decision not to initiate criminal proceedings in respect of the death of A.A. Maskhadov.
4. Evidence from various official investigations and decision of 25 March 2005 not to return the body of A.A. Maskhadov to the family
It appears that Mr A.A. Maskhadov’s alleged terrorist activities were investigated by the authorities in the context of criminal cases nos. 20/849, 14/19 and 59027, referred to above.
(a) Evidence in criminal investigation no. 14/17
On 26 August 2002 the investigation questioned a former driver of A.A. Maskhadov, Aslan Bitiyev, who, in the presence of his lawyer, gave a statement to the effect that in August 2000 A.A. Maskhadov had appointed him as commander in charge of the Nadterechnyy District of Chechnya and had given him a direct order to organise attacks against Russian servicemen with a view to destabilising the situation and intimidating the population. A. Bitiyev also described the organisational structure of his military units and the method of financing their operations and acquiring weapons and ammunition. According to him, money was provided by A.A. Maskhadov on a regular basis. A. Bitiyev also described in detail all the activities in which he had been involved and gave the names of all those who had taken part in such activities, and those of his contacts in other regions.
(b) Evidence in criminal investigation no. 20/849
(i) Evidence collected before 8 March 2004
On 6 September 2004 Nurpash Kulayev, apparently the only surviving participant in the terrorist attack in the town of Beslan, gave a statement during interview to the effect that one of the men in charge of the attack, nicknamed “the Colonel”, had told him that the order to attack the school in Beslan had come directly from “Maskhadov and Basayev”. The statement was given in the presence of a lawyer named Sikoyev and in the context of an interview concerning the circumstances of the attack.
N. Kulayev confirmed this statement during another interview on 10 September 2004.
On 14 September 2004 Ruslan Sultanovich Aushev, former President of the Republic of Ingushetia and one of the principal negotiators during the terrorist attack in the town of Beslan on 1 September 2004, gave a witness statement to the effect that the terrorists had explained to him during the negotiations that they had been acting on the orders of Shamil Basayev, but that the list of demands to be satisfied had been formulated by and was to be discussed with A.A. Maskhadov rather than with Sh. Basayev.
The negotiations between “the Colonel” and R. Aushev were videotaped. The transcript of the video recording demonstrates that the terrorists indeed named A.A. Maskhadov as the person with whom the authorities were to conduct negotiations.
On 8 December 2004 the investigator took a decision to formally identify Sh. Basayev as an accused in case no. 20/849, having described in detail the events of 1 September 2004 as established by the investigation and having also stated that Sh. Basayev and A.A. Maskhadov had been behind the attack and had been acting in concert.
(ii) Evidence collected after 8 March 2004
During interview on 10 March 2005 S.S. Yusupov mentioned that A.A. Maskhadov had had contact with and had received visits from Sh. Basayev in November-December 2004.
On the same day V.U. Khadzhimuradov stated during interview that he had personally seen plans for the terrorist attack in the town of Beslan on the personal computer of A.A. Maskhadov. He stated that the plans had been discussed by A.A. Maskhadov and Basayev in December 2004.
During the interview of 18 March 2005 V.L. Murdashev stated that A.A. Maskhadov’s activities had consisted of two components, a military one involving organisation of attacks and a political one involving talks and negotiations. According to V.L. Murdashev, the military operations were usually devised by A.A. Maskhadov with the assistance of other guerrilla leaders such as Sh. Basayev, A. Avdarkhanov, someone by the name of Aslanbek and someone by the name of Mussa.
On the same date V.U. Khadzhimuradov stated during interview that he and his uncle had been travelling around Chechnya and living in different secret military bases run by guerrilla leaders.
On 7 June 2005 V.U. Khadzhimuradov mentioned during interview that there had been a meeting between Sh. Basayev and Aslan Maskhadov shortly before the events of 8 March 2005.
During the interview of 9 June 2005 V.L. Murdashev described the staging of an attack on the village of Avtury and the visit by Sh. Basayev in December 2004.
(c) Decision of 25 March 2005 not to return the body of Aslan Maskhadov to his relatives
On 25 March 2005 investigator K. examined the evidence in case no. 20/849 and, having briefly described the circumstances of the terrorist attack of 1 September 2004, noted that according to the data collected by the investigation there had been four persons behind the attack: Sh. Basayev, A.A. Maskhadov, M.Kh. Khashiyev and Taufik-al-Djedani, also called Abu-Dzeit, a Saudi Arabian national.
The decision further noted that on 8 March 2005 the corpse of a man had been found in the cellar of one of the houses in the village of Tolstoy-Yurt and that the corpse had been identified as A.A. Maskhadov. At the same location various objects (home-made explosive devices, firearms and ammunition), as well as documents, were found confirming the active involvement of A.A. Maskhadov in terrorist activity, which had been interrupted as a result of his death. The decision went on to state that all the forensic examinations had already been carried out and that it was necessary to bury the corpse.
Referring to Article 3 of Decree no. 164 of the Government of the Russian Federation dated 20 March 2003 and section 16(1) of the Suppression of Terrorism Act, the investigator decided to bury the corpse of “the terrorist Aslan Maskhadov”, to delegate the task of burial to the Government of the Chechen Republic and to notify a deputy Prosecutor General of the decision.
The applicants alleged that they had not received a copy of this decision until May 2007.
(d) Applicants’ attempts to exhaust domestic remedies in respect of the decision of 25 March 2005 not to return the body of Aslan Maskhadov to his relatives
By letters of 29 March and 13 November 2005 as well as various dates in 2006 the applicants requested, among other things, the return of Mr Aslan Maskhadov’s body.
On 4 April 2005 Mr N.Ts. Khazikov, acting head of department in charge of the Northern Caucasus, rejected the request for return of the body. He referred to the fact that Mr Aslan Maskhadov had been accused in a few criminal cases of having committed terrorist crimes and that a decision had been taken to subject him to a restraining measure in the form of deprivation of liberty. With reference to the Federal Suppression of Terrorism Act and Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, the official noted that the burial of terrorists who had died as a result of the suppression of their terrorist actions was to be carried out in accordance with the procedure established by the Government of Russia. It further stated that their bodies were not to be returned and that the location of burial could not be disclosed.
It appears that the applicants received this letter on 15 April 2005.
The Government produced information notes dated 19 February 2007 from the Moscow City Court, the Rostov Regional Court and the Stavropol Regional Court certifying that the applicants had never applied to any of the courts in the Moscow, Rostov or Stavropol regions in connection with the decision not to return the body of the person in question to his relatives for burial.
5. Media coverage of the events of 8 March 2005
It appears that the events of 8 March 2005 were widely reported in the Russian media, with shots of the deceased’s body with a naked torso taken shortly after the incident being broadcast by some TV channels.
6. Criminal proceedings against V.L. Murdashev, V.U. Khadzhimuradov and S.S. Yusupov
On 4 December 2005 the Supreme Court of the Chechen Republic convicted V.L. Murdashev, V.U. Khadzhimuradov, and S.S. Yusupov on charges of active participation in military sedition with a view to breaching the territorial integrity of the Russian Federation, participation in unlawful military formations and illegal possession of arms and explosives. They were sentenced to various terms of imprisonment.
The court reported the trial statements of V.L. Murdashev as follows:
“... The accused Murdashev explained during the court hearing that [he was loyal to the idea of Chechen independence and that he had collaborated with Aslan Maskhadov on various occasions since 1999. He then described various instances of such collaboration.] ... As regards the role played by Khadzhimuradov, he stated that the latter was a personal assistant of Maskhadov and accompanied him each time he went out into the yard, carrying his ‘PM’ gun with bullets. He, Murdashev, was also in a sense the bodyguard of the president of the Chechen Republic of Ichkeriya and had an APS [automatic pistol Stechkin] gun with bullets. ...
Early in the morning of 8 March 2005 he, Maskhadov and Khadzhimuradov entered the cellar as usual and went to bed. They were awoken at around 9 o’clock by a noise outside. They realised that someone was looking for an entrance to the cellar and that the persons looking for it were obviously not friendly. Maskhadov told them that he would not surrender alive and that he had the permission of religious experts to do that. He also told him [Murdashev] and Khadzhimuradov that they did not have such permission. At some point a powerful explosion occurred, following which [the accused] lost consciousness. Having regained consciousness, he asked Khadzhimuradov what had happened to Maskhadov and from the response he understood that the latter was dead. There was no light in the cellar, there was dust and fumes, and there was no fresh air. Someone outside called at them to come out and they and Khadzhimuradov went out. Once outside, they were detained and then transported to the village of Khankala. From Khankala they were transported by helicopter on 10 March 2005 to the airport of the town of Beslan and then to RUBOP [the department of the Ministry of Interior in charge of fighting organised crime] in the town of Vladikavkaz. There, for the first month and a half, they were beaten up by unknown officials whose faces [the accused] could not see as they put a plastic bag on his head. He was beaten because of his suspected involvement in the attack on the school in Beslan, to which they demanded that he confess. Having established that he was innocent in that respect, they stopped the beatings. There were no marks from the beatings, but serious problems remained with his liver and kidneys ...”
The trial statements of V.U. Khadzhimuradov, as reported by the court, were as follows:
“[V.U. Khadzhimuradov mentioned various instances when he had worked with Aslan Maskhadov and meetings with Shamil Basayev ... He then said that] when they were arrested, two Stechkin pistols and one PM pistol were seized. The Stechkin pistols were attributed to Maskhadov and Murdashev and the PM pistol to him, although he had nothing to do either with that pistol or with any other weapon. During the early period after their arrest, while being held in Vladikavkaz, they were suspected of involvement in the hostage-taking in the town of Beslan and were beaten up and told to confess. The beatings stopped when [the authorities] became convinced that they had not been involved ...”
As regards S.S. Yusupov, the court judgment referred to the following statement made by him during the trial:
“On the morning of 8 March 2005 ... he went out of the house and was arrested. In the afternoon of that day they were transported to the village of Khankala, and on 10 March 2005 were taken by helicopter to the airport of the town of Beslan and from there immediately to the town of Vladikavkaz, where for a month and a half they were beaten and told to confess to the attack on the school in Beslan. The beatings stopped only when it became clear that these suspicions were unfounded ...”
The court noted the following with regard to the complaints made by the accused concerning beatings during the pre-trial stage of the investigation:
“At the court sitting the arguments of the accused ... were carefully checked. In respect of these arguments the Directorate General of the Prosecutor General’s Office with responsibility for the Southern Federal District carried out an inquiry, as a result of which it was decided on 8 November 2005 not to initiate criminal proceedings in that connection. The said decision was not appealed by the defence ... In connection with the complaints ... a forensic examination was carried out which [did not detect any injuries or traces] ... . The court also takes note of the fact that, according to the accused, they had been beaten to make them confess to [the attack on the school in Beslan] and had not been required to do anything else. They did not make any confessions in that connection and are not accused on account of those acts. They were questioned at the pre-trial stage of the investigation in the presence of their counsel; this also excluded the possibility of violence being used against them. Regard being had to the above circumstances, the court rejects the arguments of the accused alleging the use of inadmissible means of investigation as unfounded and unsubstantiated ...”
It is unclear whether any further appeal proceedings were brought against this judgment.
B. Relevant domestic law
1. Legal definitions of terrorist activity and terrorism
Section 3 of Russian Federation Law No. 130-FZ (the Suppression of Terrorism Act) defines terrorism as follows:
“... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates danger to people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of violating public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to the terrorists or to satisfy their unlawful property and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.”
Terrorist activity within the meaning of the Act encompasses:
“(1) organisation, planning, preparation and commission of a terrorist act;
(2) incitement to a terrorist act, to violence against physical persons or organisations or to the destruction of material objects for terrorist purposes;
(3) organisation of an illegal armed formation, a criminal association (criminal organisation) or an organised group for the commission of a terrorist act, or participation therein;
(4) recruitment, arming, training and deployment of terrorists;
(5) intentional financing of a terrorist organisation or terrorist group or other assistance to it.”
Section 3 defines a terrorist act as:
“... the direct commission of a crime of a terrorist nature in the form of an explosion, an act of arson, the use or threat of the use of nuclear explosive devices or of radioactive, chemical, biological, explosive, toxic, or strong-acting poisonous substances; destruction of, damage to or seizure of means of transport or of other objects; attempts on the life of a State or public figures or of representatives of national, ethnic, religious or other population groups; seizure of hostages or abduction of persons; causing danger to the life, health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat to cause such danger; the spreading of threats in any form or by any means; other actions that endanger people’s lives, cause significant loss of property or lead to other socially dangerous consequences.”
Under the same Section a terrorist is defined as:
“... a person who takes part in carrying out terrorist activity in any form.”
2. Legislation governing the interment of terrorists
On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage incident which produced heavy casualties, including the death of several dozen hostages.
Shortly after the attack, on 11 December 2002, Russia adopted changes to the Suppression of Terrorism Act by adding section 16(1), which reads as follows:
“[T]he interment of terrorists who die as a result of the interception of a terrorist act shall be carried out 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 remain undisclosed.”
On the same date Russia also adopted changes (FZ - No. 170) to the Interment and Burial Act by adding Section 14(1), which states:
“[T]he 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.”
Decree no. 164 of the Government of the Russian Federation dated 20 March 2003, adopted in accordance with section 16(1) of the Suppression of Terrorism Act, defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts carried out by them:
“... 3. Interment of [these] persons shall take place at the place 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 ...
4. Services provided by the specialist funeral agency in connection with the interment of [these] persons shall include: processing of documents necessary for interment; clothing of the body; provision of a grave; transfer of body (remains) to the place of burial (cremation); burial.
The transfer of the body (remains) to the place of burial (cremation) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure.
The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act.
5. For the purposes of the burial the official carrying out the preliminary investigation shall send the necessary documents to the specialist funeral agency, including a copy of the decision to close the criminal case and the criminal investigation with regard to [these] persons; he or she shall also send a statement confirming the death to the civilian registry office in the person’s last place of permanent residence.
6. The relatives of the persons [concerned] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can receive a death certificate.
7. At the discretion of the official carrying out the preliminary investigation, the relatives of [these] persons may be provided with copies of the medical documents concerning the death, produced by a medical organisation, and the report on the autopsy (if conducted); personal belongings shall also be returned if they are not subject to confiscation.
8. The specialist funeral agency shall produce a report on the completed burial, which shall be sent to the official conducting the preliminary investigation; the document shall become part of the criminal case file.”
3. Ruling no. 8-П of the Constitutional Court dated 28 June 2007
On 28 June 2007 the Constitutional Court of the Russian Federation examined and, in essence, rejected the complaints of a number of individuals alleging that Section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation dated 20 March 2003 were unconstitutional. The ruling noted, in particular, that the measure in question was permissible and, in the circumstances, was 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, preventing it in general and specific terms and redressing the effects of terrorist acts, coupled with the possibility of mass disorder, clashes between different ethnic groups and abuses by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, as well as the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime governing the burial of persons who were not prosecuted in connection with their terrorist activity because of their death following interception of a terrorist act, as provided for by Section 14(1) of the Federal Act ... Its 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 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 in connection with which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms.
The burial of persons who took part in a terrorist act, in close proximity to the graves of the victims of those acts, and the execution 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 interethnic and religious tension.
In the conditions which arose 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 acts of vandalism, violent acts, mass disorder and clashes which may produce further victims. Meanwhile, the places of burial of the participants in terrorist acts may become places of cultural worship for some extremist individuals and could be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity.
In such circumstances, the federal legislator may introduce special arrangements governing the burial of individuals whose death occurred as a result of interception of a terrorist act in which they had taken part. ...”
The ruling further noted that the application of the measures prescribed in the legislation concerned 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 19 and 123-127 of the Code of Criminal Procedure provided for such review.
In sum, the court gave a so-called pro-constitutional interpretation of the impugned provisions and thus de jure upheld them but de facto modified them, having forbidden the authorities to bury the bodies until a court had confirmed the competent authority’s decision in that connection. It reasoned as follows:
“... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings against a decision to discontinue a criminal case and criminal prosecution in relation to the participants in a terrorist act on account of their death. 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 contained therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitation and discontinuation of the criminal case and hence the lawfulness of application of the aforementioned restrictive measures. Until the entry into force of the court judgment the remains of the deceased cannot be buried; the relevant State bodies and officials should take all the necessary measures to ensure that the disposal of the bodies is carried out in accordance with custom and tradition, in particular through burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior to this with the requirements concerning the identification of the deceased ... the time, location and cause of death ...”
Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as patently immoral, illegal and generally incompatible with the Constitution.
Judge G.A. Gadzhiyev issued a separate opinion in which he agreed with the majority of the court that the pro-constitutional interpretation of the impugned provisions was an appropriate solution, but disagreed on the nature and extent of the de facto modifications. The opinion stated as follows:
“... if the respective law-enforcement bodies, having found, as a result of a preliminary investigation, that a terrorist act was committed and that a given person was involved, against whom the criminal proceedings ... were discontinued on account of his/her death following interception of the terrorist act, 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 security of others, they have the right 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 interception of a terrorist act committed by him, the bodies competent to take a decision concerning the burial must secure compliance with all requirements concerning the establishment of the identity of the deceased, the time and place of death, the cause of death, the location of burial and the data necessary for proper identification of the grave (a given location and number). The burial must be carried out with the participation of the relatives and in accordance with custom and tradition as well as 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 multiethnic society transmitted from generation to generation. ...”
4. Relevant provisions of the Code of Criminal Procedure
Article 19 of the Code of Criminal Procedure provides for the possibility of appeal against the decisions of various authorities, in accordance with the procedure set out in the Code and in particular in Articles 123-127 thereof:
Article 123: Right of appeal
“The actions (or inactions) and decisions of the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the court are amenable to appeal in accordance with the procedure established in the present Code, by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests.”
Article 124: Procedure for consideration of a complaint by the public prosecutor
“1. The public prosecutor shall consider the complaint within three days of the date of its receipt. In exceptional cases, where it is necessary to request that additional materials be supplied or other measures taken for checking it, it shall be admissible to consider the complaint within a period of up to ten days; the applicant shall be duly informed.
2. Following consideration of the complaint, the public prosecutor shall take a decision allowing it in whole or in part or rejecting it.
3. The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it.
4. In the cases stipulated by the present Code the inquiring officer, the investigator or the public prosecutor shall have the right to lodge an appeal with a higher-ranking prosecutor against the actions (inactions) and decisions of the public prosecutor.”
Article 125: Court procedure for consideration of complaints
“1. Decisions by the inquiring officer, the investigator and the public prosecutor concerning a refusal to institute criminal proceedings or termination of the criminal proceedings, and other decisions and actions (or lack of action) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with citizens’ access to the administration of justice, may be appealed before the district court at the place where the preliminary inquiry is conducted.
2. The complaint may be lodged with the court by the applicant or his or her defence counsel, legal representative or representative, either directly or through the inquiring officer, the investigator or the public prosecutor.
3. The judge shall check the legality and well-foundedness of the actions (or lack of action) and the decisions taken by the inquiring officer, the investigator and the public prosecutor, not later than five days after the date of lodging of the complaint, at a court session in the presence of the applicant and his or her defence counsel, legal representative or representative, if they are taking part in the criminal case, other persons whose interests are directly affected by the action (or lack of action) or by the decision against which the appeal has been lodged, and the public prosecutor. Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present, shall not be seen as an obstacle to consideration of the complaint by the court. Complaints shall be considered by the court at a public hearing unless stipulated otherwise... .
4. At the start of the court session, the judge shall announce what complaint is being considered, introduce himself to the persons attending the court session and explain their rights and responsibilities. The applicant, if he is taking part in the court session, shall then adduce the grounds for the complaint, following which evidence shall be heard from other persons in attendance. The applicant shall have the right to respond.
5. After considering the complaint, the judge shall adopt one of the following decisions:
(1) a decision finding the action (or lack of action) or the decision of the corresponding official to be illegal or ill-founded and finding him or her liable to redress the violation;
(2) a decision rejecting the complaint.
6. Copies of the judge’s decision shall be sent to the applicant and to the public prosecutor.
7. The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the judge deems it necessary.”
Article 127: Complaints and prosecutors’ appeal against judgments,
decisions or resolutions of the court
“1. Complaints and prosecutors’ appeals against judgments, rulings and resolutions of the courts of first instance and appeal courts, as well as complaints and prosecutor’s appeals against court decisions taken in the course of the pre-trial proceedings in the criminal case, shall be lodged in accordance with the arrangements laid down in ... [other provisions of the Code].
2. Complaints and prosecutors’ appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [other provisions of the Code].”
Article 148 of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings:
“1. If there are no grounds for the institution of criminal proceedings the public prosecutor, the investigator, the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings. A decision not to institute criminal proceedings on the ground set out in point 2 of the first paragraph of Article 24 of the present Code shall be admissible only with respect to the individual concerned.
2. When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned, the public prosecutor, the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations .
3. The decision not to institute criminal proceedings following verification of the information about a crime disseminated through the mass media must be made public.
4. A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within 24 hours of the time the decision was given. In this case, the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal.
5. A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in Articles 124 and 125 of the present Code.
6. If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded, he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification.
7. If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded, he or she shall adopt the corresponding decision, forward it for execution to the public prosecutor and notify the applicant.”
COMPLAINTS
1. The applicants complained under Articles 2 and 13 of the Convention that the Russian authorities had used excessive lethal force to arrest Aslan Maskhadov. They also complained of the subsequent lack of an effective investigation into the circumstances of his death.
2. Under Article 3 of the Convention the applicant complained about the refusal of the authorities to return the body of Mr Aslan Maskhadov.
3. They complained that the refusal of the Russian authorities to return the body of Mr Aslan Maskhadov for funeral rites and burial had been in breach of his right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention.
4. They also submitted that the refusal had been in breach of Articles 8 and 9 taken alone and in conjunction with Articles 13 and 14 of the Convention.
THE LAW
1. Relying on Articles 2 and 13 of the Convention, the applicants complained about the death of Aslan Maskhadov and the subsequent lack of an effective investigation into the circumstances of his death. The Convention provisions in question provide as follows:
Article 2 of the Convention
“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 13 of the Convention
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government disagreed and maintained that the State had not been liable for the death of Aslan Maskhadov and that the investigation had fully complied with the requirements of the procedural aspect of Article 2 of the Convention. They also argued that the applicants had failed to exhaust domestic remedies in respect of their complaints as they had never raised them at the domestic level.
The applicants argued that the conclusions of the investigation had been erroneous and flawed. They submitted that Aslan Maskhadov had been killed by the authorities and not by his bodyguard and that the investigation generally had been marked by flaws and errors and that, among other things, the statements of Viskhan Khadzhimuradov and Vakhid Murdashev had been obtained under torture. The applicants also argued, referring to the TV still shots, that the body of Aslan Maskhadov bore injuries other than gunshot wounds, and that Aslan Maskhadov had been effectively trapped and detained by State agents during the events of 8 March 2005 and that his death was therefore attributable to the State. The applicants also complained of the lack of any exact information concerning the orders, objectives, equipment and participants connected with the special operation of 8 March 2005. They maintained that there had been suspicious inconsistencies in the authorities’ conduct in particular as regards the refusal to conduct an official search of the cellar and the decision to blow up the crime scene shortly after the events. They submitted that the evidence collected had formed insufficient basis for a reasoned decision concerning the circumstances of the death of Aslan Maskhadov and that the authorities should have broadened the scope of its investigation by collecting statements from further witnesses such as the State agents who had taken part in the special operation, by carrying out additional searches on the spot with a view to finding further traces on pistols, used cartridges or bullets, and by collecting the clothes worn by the victim and the alleged perpetrator at the time and subjecting them to forensic examination. In that connection they also argued that the destruction of the scene of the incident had been suspicious and premature and that the death of Aslan Maskhadov should have been investigated as a separate case and not in the context of criminal case no. 20/849, which concerned a different set of facts and excluded the participation of the victim’s family. The applicants also disagreed with the way in which the investigative authority had assessed the existing evidence. They considered that the authority could not rely in any sense on the witness statements of V.U. Khadzhimuradov, since they had been self-contradictory and inconsistent with the autopsy report and had allegedly been obtained under torture, and also because of the injuries the latter had received as a result of the explosion of 8 March 2005. Lastly, they complained about their lack of access to the case file and their inability to challenge the decision of 14 July 2005, and maintained that they had had no effective remedy in connection with their grievances.
The Court first notes that the Government entered a plea of non‑exhaustion. The Court considers that in view of the applicants’ complaints under Article 13 of the Convention the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.
In the light of the parties’ submissions, the Court finds that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
2. The applicants complained that the authorities had refused to return the body of Aslan Maskhadov, in breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court notes that by contrast to previous cases in which it found violations of Article 3 of the Convention, the present case does not concern the “disappearance” of a family member and the authorities’ reaction and attitude to the situation when it was brought to their attention (see, by contrast, Kurt v. Turkey, judgment of 25 May 1998, Reports of Judgments and Decisions 1998‑III).
Having regard to the particular circumstances of the present case and the fact that the complaint about the authorities’ decision not to return the body of Aslan Maskhadov will be examined under Articles 8 and 9 taken alone and in conjunction with Article 13 and 14 of the Convention, the Court is not satisfied that the present case discloses the special circumstances referred to in the case of Çakıcı v. Turkey ([GC], no. 23657/94, ECHR 1999‑IV) and does not consider that the applicants may claim to be victims of any conduct on the part of the authorities which is incompatible with Article 3 of the Convention.
Accordingly, the Court finds this part of the application manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.
3. The applicants complained that the refusal of the authorities to return the body of Aslan Maskhadov had been in breach of his right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention. This provision provides:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Court notes that the conclusion by a competent authority that Aslan Maskhadov was an active terrorist constituted an integral part of the decision not to return his body. The Court notes that this factual finding was made in respect of Aslan Maskhadov alone and did not concern the applicants or other members of Aslan Maskhadov’s family. It cannot thus be said that in so far as the applicants relied on Article 6 § 2 of the Convention they were affected by the measure in question. Furthermore, in so far as the finding in question may have affected the rights of the applicants, the Court notes that this complaint will be examined under Articles 8 and 9 taken alone and in conjunction with Articles 13 and 14 of the Convention.
It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
4. Relying on Articles 8 and 9 taken alone and in conjunction with Articles 13 and 14 of the Convention, the applicants also complained of the refusal of the authorities to return the body of Aslan Maskhadov. The provisions in question provide:
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 9 of the Convention
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government maintained that the decision not to return the body of Aslan Maskhadov had been taken under the Suppression of Terrorism Act, the Interment and Burial Act and the decree on combating terrorism. They argued that the suppression of terrorist activity could not always be regarded as an instantaneous act conducted at the place of commission of a given terrorist act and that it could also include the arrest of other members of the terrorist group, due regard being had to the distribution of roles within the group. They submitted that the question concerning the return of the body of such a person should be decided on a case-by-case basis in the light of the following considerations: whether criminal proceedings had been instituted, the circumstances of death, various national security, public order and economic welfare factors, the need to prevent disorder resulting from the activities of the supporters of Aslan Maskhadov and other persons, motivated by revenge or personal enmity, and the need to protect the health and rights and freedoms of others. Taking into account the above considerations, the evidence in the case, the fact that the terrorist act of which Aslan Maskhadov was accused had already taken place, and his terrorist activity, which had continued until the moment of his death, the decision refusing to return his body to the family should be regarded as justified. In addition, the decision had been motivated by the need to weaken the ideology of terrorism as an ideology of violence and destruction aimed at violating the rights and freedoms of citizens and undermining the foundations of the constitutional order and State security. The measure in question was one of the means of preventing and fighting the phenomenon of terrorism. Hence, in view of the factual circumstances of the case, the measure could not be regarded as a disproportionate limitation of the rights of the deceased and his family and could not be regarded as discrimination. In sum, the rights of the applicants had not been breached.
The applicants disagreed. They stated that the authorities’ refusal to return the body amounted to interference with their Article 8 rights and that it had been unlawful and disproportionate. Firstly, they noted that Mr Maskhadov had not died as a result of the interception of a terrorist act within the meaning of section 16(1) of the Suppression of Terrorism Act and that, accordingly, the decision in question had been unlawful. They also argued that the legal provisions in question failed to meet the quality-of-law standard, in that they were generally “inherently at odds with the spirit of the Convention” because of the excessively broad definitions of notions such as “terrorist” and “terrorist act” and the lack of procedural guarantees to protect against arbitrariness and abuse. In the latter respect they also referred to the decision of the Constitutional Court dated 28 June 2007 which, among other things, acknowledged the lack of judicial review in respect of decisions of this type. Secondly, they submitted that the contested measure lacked clearly defined legitimate aims; the Government had simply enumerated such aims without demonstrating their connection with the circumstances of the applicants’ case. In any event, the measure in question had not had any visible impact on the overall level of terrorist activity in Russia but rather had imposed collective punishment on the families of the deceased. Thirdly, the applicants argued that in refusing access to the body of Aslan Maskhadov the authorities had failed to take account – in any degree or form – of what was at stake for the applicants. There was no evidence that the authorities had even considered taking other, less restrictive measures in that respect. Lastly, the applicants were of the view that the legislation in question had been aimed exclusively at adherents of the Islamic faith and members of the Chechen ethnic community and that it was therefore in breach of Article 14 of the Convention.
The Court observes that the Government entered a plea of non‑exhaustion. In view of the applicants’ complaints under Article 13 of the Convention, the Court considers that the question of exhaustion of domestic remedies is so closely linked to the merits of the case that it is inappropriate to determine it at the present stage of the proceedings. The Court therefore decides to join this objection to the merits.
In the light of the parties’ submissions, the Court finds that these complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court
Decides unanimously to join to the merits the examination of the issue of exhaustion in respect of the applicants’ complaints concerning the circumstances of the death of Aslan Maskhadov, the subsequent investigation and the refusal of the authorities to return his body to the family;
Declares unanimously admissible, without prejudging the merits, the complaints under Article 2 taken alone and in conjunction with Article 13 of the Convention concerning the circumstances of the death of Aslan Maskhadov and the subsequent investigation, and the complaints under Articles 8 and 9 taken alone and in conjunction with Articles 13 and 14 of the Convention concerning the refusal to return the body of Aslan Maskhadov to his family;
Declares by majority inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy