EUROPEAN COURT OF HUMAN RIGHTS
FORMER FIRST SECTION
CASE OF ISAYEVA v. RUSSIA,
YUSUPOVA v. RUSSIA and BAZAYEVA v. RUSSIA
(Applications Nos. 57947/00,
57948/00 and 57949/00)
JUDGMENT <*>
(Strasbourg, 24.II.2005)
In the case of Isayeva v. Russia, Yusupova v. Russia and
Bazayeva v. Russia
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
The European Court of Human Rights (Former First Section),
sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs F. Tulkens,
Mrs {N. Vajic} <*>,
Mr A. Kovler,
Mr V. Zagrebelsky, judges
and Mr S. Nielsen, Section Registrar,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 14 October 2004 and 27 January
2005,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in three applications (Nos. 57947/00,
57948/00 and 57949/00) against the Russian Federation lodged with
the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") by three
Russian nationals, Medka Chuchuyevna Isayeva, Zina Abdulayevna
Yusupova and Libkan Bazayeva ("the applicants"), on 25, 27 and 26
April 2000 respectively.
2. The applicants, who had been granted legal aid, were
represented by Mr Kirill Koroteyev, a lawyer of Memorial, a
Russian Human Rights NGO based in Moscow, and Mr William Bowring,
a lawyer practicing in London. The Russian Government ("the
Government") were represented by Mr P.A. Laptev, the
Representative of the Russian Federation at the European Court of
Human Rights.
3. The applicants alleged, in particular, that they were
victims of indiscriminate bombing by Russian military planes of a
civilian convoy on 29 October 1999 near Grozny. As a result of the
bombing, two children of the first applicant were killed and the
first and the second applicants were wounded. The third
applicant's cars and possessions were destroyed. The applicants
alleged a violation of Articles 2, 3 and 13 of the Convention and
of Article 1 of Protocol No. 1.
4. The applications were allocated to the Second Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
6. The Chamber decided to join the proceedings in the
applications (Rule 42 з 1).
7. By a decision of 19 December 2002, the Court declared the
applications admissible.
8. The applicants and the Government each filed observations on
the merits (Rule 59 з 1).
9. A hearing took place in public in the Human Rights Building,
Strasbourg, on 14 October 2004 (Rule 59 з 3).
There appeared before the Court:
(a) for the Government
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights, Agent,
Mr Y. Berestnev, Counsel,
Mrs A. Saprykina, Adviser;
(b) for the applicants
Mr B. Bowring, Professor, Counsel,
Mr P. Leach,
Mr K. Koroteyev, Advisers.
The Court heard addresses by Mr Laptev, Mr Bowring, Mr. Leach
and Mr. Koroteev.
THE FACTS
I. The circumstances of the case
10. The first applicant was born in 1953, the second applicant
was born in 1955 and the third applicant was born in 1945. The
first two applicants are residents of Chechnya. The third
applicant currently lives in Germany.
A. The facts
11. The facts surrounding the bombing of the civilian convoy
and the ensuing investigation were partially disputed. In view of
this fact, the Court requested the Government to produce copies of
the entire investigation files opened in relation to the bombing.
The Court also asked the applicants to produce additional
documentary evidence in support of their allegations.
12. The submissions of the parties on the facts concerning the
circumstances of the attack on the convoy and the ensuing
investigation are set out in Sections 1 and 2 below. A description
of the materials submitted to the Court is contained in Part B.
1. The attack on the civilian convoy
13. The first and third applicant lived in the city of Grozny,
and the second applicant in Staraya Sunzha, which is a suburb of
Grozny. In the autumn of 1999 hostilities began in Chechnya
between the federal military forces and Chechen fighters. The city
and its suburbs were the targets of wide-scale attacks by the
military. The applicants allege that at some date after 25 October
1999 they learned from radio and television announcements,
including on the all-Russian channels RTR and ORT, that on 29
October 1999 a "humanitarian corridor" would be arranged for
civilians to escape from the fighting in Grozny.
14. Because of the attacks the third applicant and her family
left Grozny on 26 October 1999 and went to stay with relatives in
the village of Gekhi. The first applicant and her relatives tried
to cross the border with Ingushetia on 28 October, but were told
by the military at a roadblock that the corridor for civilians
would be open the next day.
15. Early in the morning of 29 October 1999 the first and the
second applicants and their relatives - about a dozen persons in a
RAF mini-van - left Grozny along the road towards Nazran, also
known as the Rostov-Baku highway, or the "Kavkaz" highway. Around
8 a.m. they reached the military roadblock "Kavkaz-1" on the
administrative border between Chechnya and Ingushetia. There was
already a line of cars about one kilometre long. The first
applicant and some relatives walked to the roadblock and the
military informed them that they were expecting an order from
their superiors to open the road, and that the order should arrive
at about 9 a.m. The weather was bad at that time, it was cloudy
and raining.
16. The family of the third applicant left the village of Gekhi
at about 5 a.m. on 29 October 1999 in three cars, a Zhiguli, a
Niva and a blue GAZ-53, and travelled along the road to Nazran.
When they reached the queue in front of the roadblock, they were
assigned numbers 384 and 385 in the line. The line of cars grew
very quickly, and there were three or four times as many cars
behind them as in front. The third applicant estimated that there
were over 1,000 cars in the column, including trucks, vans and
buses.
17. People started asking the servicemen about the opening of
the border. At first they were told that it should be opened after
9 a.m., and that the soldiers were expecting an order to that
effect. The first applicant estimated that about 11 a.m. a senior
officer came out and told the people that the "corridor" would not
be opened that day and that he had no information as to when it
would be opened. According to the applicants, he also ordered
everyone to clear the space in front of the roadblock and to
return to Grozny. The column started to turn around, but progress
was very slow because there were several lanes of cars and little
space.
18. The applicants turned around and were slowly moving with
the convoy away from the roadblock. According to the second
applicant, there was a large number of cars, and the column
stretched over about 12 kilometres. Sometime later the clouds
cleared and the applicants saw two planes in the sky. The planes
turned over the column and fired missiles.
19. The driver of the first and the second applicants' minivan
stopped and the passengers started to get out. The first
applicant's children, Ilona (also spelled Elona) Isayeva (born in
1983) and Said-Magomed Isayev (born in 1990) and her sister-in-law
Asma Magomedova (born in 1954) were the first to get out. The
first applicant saw them thrown to the side of the road by a
blast. She recalled that the planes circled around the convoy and
dropped bombs several times. The first applicant's right arm was
hit by a fragment of a shell and she fainted. When she regained
consciousness and ran to her relatives, all three were dead from
shell-wounds. Another woman, Kisa Asiyeva, who was in the minivan,
was also killed. After the attacks were over, the first applicant
was taken by car with other wounded person to a hospital in Atagi.
The doctors treated the wounds and sent her home, because there
was no room in the hospital. One week later the first applicant
travelled to Nazran, Ingushetia, where she had an operation on her
right arm. She needs another operation on her arm.
20. The second applicant recalls that, as their mini-van was
nearing Shaami-Yurt, they saw two planes in the sky launching
rockets. In a few minutes a rocket hit a car immediately in front
of theirs. The second applicant thought the driver was hit,
because the car turned around abruptly. When they saw this,
everyone started to jump out of the minivan, and then the second
applicant was thrown over by another blast. She fainted, and when
she regained consciousness, she realised that two of the first
applicant's children, Ilona Isayeva and Said-Magomed Isayev, were
dead. The second applicant believes that there were eight
explosions after the first one. She was dragged to the side of the
road by others, but later she returned to the road to help the
first applicant to collect the bodies. Said-Magomed had a wound to
the abdomen and Ilona's head had been torn away, and one leg was
crushed. The second applicant was wounded by shells in the neck,
arm and hip. Their minivan was not hit, and they used it to leave
the scene afterwards. On 7 November 1999 she was taken to
Ingushetia by ambulance for further treatment.
21. The third applicant was in a Zhiguli car with her husband
and his friend. Her son and two of her husband's nephews, one with
his wife, were in the GAZ car behind them. She recalled that the
rain stopped and the sky cleared when they passed the village of
Khambirzi and were nearing the village of Shaami-Yurt. Then there
was a powerful blast, and their car was thrown to the left side of
the road. All its windows were broken. The third applicant
realised that there had been a blast behind, and she ran over to
see if her son and his cousins were alive. She believes that in
the 50 - 60 metres she ran along the road to find her son's car,
she saw several destroyed cars, vans and trucks and 40 - 50 dead
bodies, disfigured and mutilated, some of them in vehicles, some
thrown around by the blasts. She recalled a bus with the rear side
totally destroyed and a Kamaz truck with human and cattle bodies
inside.
22. The third applicant, her husband and their friend picked up
some people who needed help. Their Zhiguli car had flat tyres, but
they reached Shaami-Yurt, where they changed tyres. They then
travelled back to Gekhi where their relatives lived. In the
meantime, the applicant's son picked up the wounded and took them
to a hospital in Achkhoy-Martan, the district centre. He later
returned to the place of the bombing, as he was not sure if the
third applicant had been able to leave it. The planes were still
flying over the remains of the convoy and struck again. Their GAZ
car with all the family possessions was destroyed by a direct hit,
as well as their Niva car. The applicant's son and his cousins ran
on foot through neighbouring villages, and in the evening reached
Gekhi. They later fled to Ingushetia.
23. The applicants are not certain about the exact timing of
the attack, as they were in a state of shock. They accepted the
timing of the attack given by the Government. They submitted
transcripts to the Court of interviews with other witnesses of the
attack. In their testimonies these witnesses described the bombing
of a convoy of refugees from Grozny near the village of Shaami-
Yurt on 29 October 1999, confirming that after the strikes they
saw numerous burned and damaged cars, including at least one Kamaz
truck filled with civilians and at least one bus. They also
confirmed that there were dozens of victims, killed and wounded.
Several testimonies concerned the deaths of the first applicant's
relatives (see Part B below for a description of the testimonies).
24. The applicants submitted that they saw only civilians in
the convoy, and that they did not see anyone from the convoy
attempting to attack the planes.
25. According to the Government, on 29 October 1999 the
representative of the Chechen Committee of the Red Cross decided
to evacuate the office to Ingushetia. As he did not co-ordinate
the move with the military authorities, when he and a convoy of
vehicles reached the check-point "Kavkaz-1" on the administrative
border with Ingushetia, they had to turn back as the check-point
was closed.
26. The Red Cross could have used the opportunity to inform the
security and military authorities in advance about their travel,
which would have made it possible for them to ensure a safe
evacuation route. The checkpoint was closed because it could not
supervise the passage of a "fair quantity of refugees". On the way
back to Grozny the convoy was joined by a Kamaz truck carrying
rebel Chechen fighters.
27. At that time the military authorities were planning and
conducting counter-terrorist operations in the Achkhoy-Martan
district, aimed at preventing supplies and personnel of the rebel
fighters being brought to Grozny by heavy transport, as well as
identification and suppression of any other persons, supporting
networks or command centres offering armed resistance to the
authorities.
28. As part of that mission, on 29 October 1999 two military SU-
25 aeroplanes, flown by military pilots identified for security
reasons as "Ivanov" and "Petrov", were on a mission to conduct
reconnaissance and to suppress such movements. At around 2 p.m.,
when flying over the village of Shaami-Yurt, they saw vehicles
moving towards Grozny. The planes were attacked from a Kamaz truck
with large-calibre infantry fire-arms. The pilots reported the
attack to an air-traffic controller identified as "Sidorov" at the
command headquarters, and were granted permission to use combat
weapons. At about 2.15 p.m. the planes fired four rockets each
from a height of about 800 metres at the Kamaz, which they
estimated carried at least 20 fighters, and destroyed it. They
then located a second Kamaz truck on the same road on an
intersection with a road to the village of Kulary, from which they
were also attacked. The pilots retorted by launching two missiles
each at the target. They then returned to their deployment
aerodrome. In their submissions on the admissibility of the
applications, the Government indicated the timing of the attack as
2.05 - 2.20 p.m. and 3.30 - 3.35 p.m.
29. The Government conceded that apart from the two Kamaz
trucks targeted, other vehicles were destroyed or damaged. From
the observations on the merits submitted by the Government, it
appears that 14 civilian vehicles were damaged. This resulted in
16 civilians being killed and 11 wounded. Among the killed were
two employees of the local Red Cross Committee and the first
applicant's three relatives. Among the wounded were the first and
the second applicant. The Government did not submit any
information about the number or names of wounded or killed
fighters in the Kamaz trucks.
30. At the same time, the Government submitted that the pilots
had not foreseen and could not have foreseen the harm to the
civilian vehicles, which appeared on the road only after the
rockets had been fired. In the Government's view, the fighters
were deliberately using the convoy, which had been moving without
authorisation, as a human shield. The radius of damage of the
rockets is 600 - 800 metres, which explained the casualties.
31. In connection with the incident, the International
Committee of the Red Cross (ICRC) in Geneva issued a press release
on 30 October 1999. It stated that, according to the local branch
of the Red Cross, on 29 October 1999 a convoy of vehicles, among
them five vehicles of the Chechen Committee of the Red Cross, had
tried to cross the border into Ingushetia but had been turned back
at the check-point and were returning to Grozny. All five cars
were clearly marked with the Red Cross sign, and the truck
displayed a red cross on its roof. They were attacked by missiles
from aeroplanes, as a result of which two Red Cross workers were
killed and a third was wounded. A number of other vehicles were
also hit, resulting in some 25 civilian deaths and over 70
injured.
32. The Russian military air force issued a press release which
stated that on 29 October 1999 at 2 p.m. a column of trucks with
fighters and ammunition was moving along the road from Nazran
towards Grozny. A SU-25 plane flying over the convoy was shot at
with automatic weapons and called a second plane for support. The
planes hit the convoy with missiles at an interval of five
minutes, as a result of which two trucks full of fighters were
destroyed. The press service denied that civilians could have been
hit by the air strikes.
33. On 2 December 1999 the Committee to Protect Journalists
(CPJ), New York, stated that on 29 October 1999 two TV
journalists, one working for a Moscow-based company, and the other
for a local station in Grozny, were killed during a military
attack on a convoy of refugees fleeing Grozny near the village of
Shaami-Yurt. According to the statement, the two journalists were
covering the movement of a convoy, and when the first rocket hit a
bus with refugees, they went out to film the scene. As another
rocket hit a nearby vehicle, both were fatally injured.
34. The attack on the convoy was reported in the Russian and
international media.
2. The investigation of the attack
35. On 20 December 1999, at the first applicant's request, the
Nazran District Court of Ingushetia certified the deaths of Ilona
Isayeva, born on 29 May 1983, and Said-Magomed Isayev, born on 30
October 1990, "due to shell-wounds received as a result of bombing
of a convoy of refugees from Grozny by fighter planes of the
Russian military air force on the "Kavkaz" road between the
villages of Shaami-Yurt and Achkhoy-Martan on 29 October 1999,
around 12 noon".
36. In September 2000 the Ingushetia Republican Prosecutor
introduced a request for supervisory review to the Presidium of
the Supreme Court of Ingushetia, by which he sought to quash the
decision of 20 December 1999. On 17 November 2000 the request was
granted, and the decision was quashed. The case was remitted to
the District Court. The Government submitted that the first
applicant failed to appear at the District Court for a new
consideration and that her place of residence was unknown. On 18
March 2002 the Nazran District Court adjourned the case due to the
first applicant's failure to appear on summonses.
37. On 3 May 2000 the military prosecutor of the Northern
Caucasus military circuit (военная прокуратура Северо-Кавказского
военного округа), military unit No. 20102, located in Khankala,
the Russian federal military headquarters in Chechnya, opened a
criminal investigation, No. 14/33/0205-00, concerning the aerial
bombardment of a refugee convoy near the village of Shaami-Yurt on
29 October 1999.
38. The investigation confirmed the fact of the bombardment,
the deaths of the first applicant's relatives and the wounding of
the second applicant. It also identified several witnesses and
relatives of other victims of the bombardments, who were
questioned. Some of them were granted victim status and recognised
as civil plaintiffs. The investigation identified a number of
individuals who had died as a result of the strikes and who were
wounded. It also identified two pilots who had fired at the convoy
and the control tower operator who had given permission to use
combat weapons. The pilots, who were questioned as witnesses,
stated that their targets had been two solitary Kamaz trucks with
armed men, who fired at the planes. In response, the pilots used
eight S-24 air-to-ground missiles <*> against the first truck and
four such missiles against the second truck. No one was charged
with having committed a crime (see Part B below for a description
of the documents in the investigation file).
--------------------------------
<*> S-24s are heavy, non-guided air-to-ground missiles, with a
weight of over 230 kg and length of over 2,3 metres. On exploding,
they create about 4000 splinters over a damage radius exceeding
300 metres.
39. On 7 September 2001 the criminal investigation was closed
due to lack of corpus delicti in the acts of the pilots. This
decision was appealed to the military court by a victim of the
attack, Ms Burdynyuk. Following her complaint of 6 June 2002, the
Bataysk Garrison Military Court quashed the investigator's
decision on 14 March 2003 and remitted the case for a new
investigation to the military prosecutor of the Northern Caucasus
military circuit (see з 88 below).
40. After the hearing of 14 October 2004 the Government
submitted a document of 5 May 2004 issued by a military prosecutor
of the Northern Caucasus military circuit. By this decision the
criminal investigation was again closed due to the absence of
corpus delicti in the acts of the pilots (see зз 90 - 97 below).
41. The applicants stated in their submissions that they were
not aware of any adequate steps taken by the authorities to
conduct an efficient and meaningful investigation and to ensure
their participation in it. The first applicant submitted that some
time after her complaint to the Court had been communicated to the
Russian Government, her elder brother, Aslanbek Vakhabov, was
twice visited at his house in Chechnya by the military
prosecutors, who were looking for her. After the second visit the
prosecutors left a note for the first applicant, instructing her
to appear at the Khankala military base for questioning. The first
applicant failed to do so. She submitted that Khankala was the
main military base of the federal forces in Chechnya, was not
freely accessible to civilians and was heavily guarded and
surrounded by numerous check-points. It would be very difficult
and unsafe for her to attempt to get there on her own, and she
believed that the prosecutors could have found her either in
Ingushetia, where she was staying, or in Chechnya, where she
travelled. The first applicant was also aware that prosecutors
from the Chechen town of Achkhoy-Martan were once looking for her
in Ingushetia, while she was in Grozny.
42. The second and third applicants were never called for
questioning. They were not given any official information in
relation to the incident. None of the applicants was officially
informed that they had been granted the status of crime victims
(потерпевшие), as provided by Article 53 of the Code of Criminal
Procedure.
B. Documents submitted
43. The parties submitted numerous documents concerning the
investigation into the killings. The main documents of relevance
are as follows:
1. Documents from the investigation file
44. The Government submitted a copy of the investigation file
in the criminal case, divided into two volumes. No list of
documents was provided, but it is apparent from the numbering of
the pages that there were initially at least three volumes and
that a certain part of the file is missing. According to the
documents submitted, the investigation made some attempts to
locate the first applicant and, to a lesser extent, the second
applicant. Although some of their relatives were questioned and
granted victim status (it is not clear whether they were informed
of this), the investigators did not contact the first and the
second applicant directly. It does not appear that the third
applicant was ever sought. The documents contained in the case-
file present a coherent and detailed account of the attack of
which the applicants complain.
45. The most important documents contained in the file are as
follows:
a) Documents from the Red Cross
46. The Moscow Office of the International Committee of Red
Cross (ICRC) addressed the Main Military Prosecutor's Office in
Moscow in relation to the attack on the convoy on 29 October 1999.
On 29 October 1999 the ICRC urgently informed the Ministry of
Internal Affairs that, due to a rapid deterioration of the
security situation in Grozny, the local personal of the ICRC and
of the Chechen Committee of the Red Cross were being evacuated
from Grozny by a convoy of five trucks and six passenger vehicles.
The letter stated that the vehicles would not be marked by any
emblem.
47. Later on 29 October 1999 the ICRC again urgently informed
the Ministry of the Interior that the Red Cross personnel were
unable to cross the border with Ingushetia. The road between
Ingushetia and Grozny was under fire and one of the Red Cross
trucks had been damaged.
48. On 16 November 1999, in reply to a request from the Main
Military Prosecutor's Office of 9 November 1999, Mr Ruslan Isayev,
chairman of the Chechen Committee of the Red Cross and Red
Crescent, submitted his account of the attack. He submitted the
following:
"I have been the Chairman of the Chechen Committee of the Red
Cross since January 1995. We worked together with the ICRC, taking
care of 15,000 elderly and disabled persons in Chechnya... From 1
October 1999 we had to close the food centres since electricity
and gas had been cut off, but we continued to bake bread using
diesel fuel and to distribute it to 12,000 elderly persons...
Starting from 20 October 1999 Grozny came under heavy air
bombardment, and on 27 October we stopped all programmes, because
it was impossible not just to work, but to stay there. We started
to prepare to evacuate, and I informed the ICRC Office in Nalchik
[Kabardino-Balkaria] of this fact.
Because all public media were declaring that an exit route to
Ingushetia would be opened for refugees on 29 October 1999, we
decided to evacuate on 29 October 1999, together with the ICRC
staff. In order to evacuate we needed special permission, and on
29 October we brought all our transport to the [rebel]
commandatura, which issued a permit to travel. I went ahead of the
convoy to check the road, and saw several craters from explosions
on the road, so I personally ensured that we had flags with red
crosses on the roofs of our three trucks.
Our cars travelled in a convoy, and at about 8.30 a.m. we were
in a line of cars on the Rostov-Baku highway. The line extended
for about 3 kilometres from the check-point [at the border with
Ingushetia]. About 10 a.m. at the check-point, where about 3000
people were waiting and no one was let through, a general
appeared... and said that no one would be allowed to cross,
because the check point was not prepared. He said that it would
open five days later, that everyone should go back, and that he
guaranteed that the road would not be attacked. Until about 11.30
a.m. we could not turn around, because of a line of cars about
seven kilometres long behind us. At noon we started to move
towards Grozny. I was heading the convoy in a Zhiguli car, the
others were behind me. Other refugees followed our convoy, having
seen our red cross symbols; they were also flying white flags.
About two kilometres before Shaami-Yurt I saw two military
planes launching rockets. As cars were also approaching from
opposite direction, I thought that they had been shooting at
something by the side of the road. In order to verify, I
accelerated and went ahead of the convoy. When I reached the
bridge, I saw the road turning to the left and the planes bombing
the road. When I reached the spot, two trucks were lying on the
left side of the road, both on their sides, on the right side a
Zhiguli car was burning after a direct hit and nearby a woman
covered in blood was trying to take out of the car a man's
beheaded body. I stopped to help, but at that moment passengers in
my car whom I had picked up on the road to Grozny started to
scream and pointed to the skies. I saw two military planes coming
towards us. I got back into the car and drove forward. After about
100 metres the car jolted and the back windscreen was broken. The
car slowed down because one of the back wheels had been punctured.
After 600 metres I reached Shaami-Yurt, where I let the passengers
out, changed the tyre and returned to the convoy. When I
approached the bridge I saw a horrible site. In front, on the
bridge, was our Mercedes truck. Its cabin was almost entirely
gone. Other cars were behind it. I ran to the truck and saw that
the bodies of two drivers, Aslanbek Barzayev and Ruslan
Betelgeriyev, were torn apart. Then I started to look for the
others. To the right under the road I found Ramzan Musliyev, who
was wounded in the back. Then I found other colleagues who were
assisting the wounded from a PAZ bus, which had taken a direct hit
by a rocket; 12 people had been killed on the spot. We took the
wounded and two cars with broken windows which could drive and
went to the village of Khambirzi. I told the staff to unload the
trucks and take away the dead after things had calmed down. In the
meantime I drove the wounded to the village of Alkhan-Yurt. At 4
p.m. I returned to my colleagues in Khambirzi. They told me that
the planes had returned and attacked the convoy twice more, and
that they had descended to a very low height and shot at the cars
with machine-guns.
To sum up, on 29 October 1999 between 12 and 4 p.m. on the
bridge near the village of Shaami-Yurt, military planes attacked a
civilian convoy containing refugees five times; consequently,
dozens of cars were destroyed, about 25 persons were killed and
about 75 were wounded. I believe that many victims were hurt
because numerous refugees followed our convoy, having noticed the
Red Cross sign.
I and my colleagues categorically deny that the planes were
allegedly shot at from the convoy. Starting from the cross-roads
with the road to Urus-Martan, not only we did not see any cars
with an anti-aircraft gun, but we did not see not a single armed
person. While in Chechnya we ourselves suffered from the [Chechen]
fighters, who accused us on many occasions of working for the
Russians, and our office and staff had been attacked, so we were
very cautious. I cannot state that the pilots deliberately aimed
at the Red Cross convoy, but they could not have failed to see our
trucks with the crosses on the ill-fated bridge, and afterwards
they were striking at the civilian convoy for four hours."
49. To this statement were appended copies of the identity
documents of the two drivers who had been killed, Aslanbek
Barzayev and Ramzan Bitilgiriyev. There was also a travel permit
for six vehicles, issued by an "independent Chechen authority" -
the Aldy commandatura - on 29 October 1999.
50. Three other testimonies were collected from the Red Cross
workers in April 2000. They confirmed Isayev's statements as
regards the timing and the circumstances of the attack and the
identity of the victims who had been Red Cross employees.
b) Decision to start the criminal investigation
51. On 27 April 2000 a military prosecutor from military unit
No. 20102 in Khankala issued a decision not to open a criminal
investigation into the complaint by the Red Cross Committee. The
decision said that a review of the complaint established that the
Red Cross convoy was travelling on 29 October 1999 to Ingushetia,
and that it could not cross the administrative border because the
check-point had not been prepared. The convoy movements were not
coordinated with the headquarters of the United Group Alignment
(UGA). When returning to Grozny, the convoy, together with other
vehicles, was attacked at the bridge near the village of Shaami-
Yurt by "unidentified airborne devices". The decision further
referred to information from the headquarters of the UGA that,
according to the operations record book, on 29 October 1999 the
UGA aviation forces had not conducted flights in the vicinity of
Shaami-Yurt. The investigator concluded that there was no proof
that the servicemen from federal forces had been involved in the
air bombardment of the Red Cross convoy and refused to open a
criminal investigation because of the absence of a corpus delicti
in the actions of servicemen of the armed forces.
52. On 3 May 2000 a prosecutor of the Military Prosecutor's
Office for the Northern Caucasus in Rostov-on-Don quashed the
decision of 27 April 2000 and ordered an investigation. On 10 May
2000 the military prosecutor of military unit No. 20102 accepted
the case No. 14/33/0205-00 for investigation. On 28 June 2000 the
case-file was transferred to another investigator within the same
military unit.
53. After communication of the case by the Court to the Russian
Government in June 2000, the Prosecutor's Office for the Northern
Caucasus requested information about the case from the Chechnya
Republican Prosecutor's Office. On 13 September 2000 the Achkhoy-
Martan District Prosecutor's Office opened criminal investigation
No. 26045 into the killing of the first applicant's three
relatives and the wounding of the first and the second applicants.
In November 2000 the criminal case was forwarded for investigation
to military unit No. 20102. On 4 December 2000 a military
prosecutor in the same military unit joined it with the
investigation No. 14/33/0205-00.
54. It appears that at some point in 2001 the criminal case was
transferred for further investigation to the North Caucasus
Military Prosecutor's Office in Rostov-on-Don.
c) Documents related to the Burdynyuk family
55. Among the victims of the attack were Nina and Boris
Burdynyuk, residents of Grozny. The husband was killed in the
attack, and the wife was wounded. On 6 December 1999 Nina
Burdynyuk wrote to the local military prosecutor in Anapa,
Krasnodar Region, where she was staying. She stated that on 29
October 1999 she and her husband travelled along the "humanitarian
corridor" that had been declared for Grozny residents. Through a
local transport agency, they had arranged in advance for a truck
to collect them and their movable property. As the roadblock was
closed, they had to go back to Grozny. At 1.10 p.m. near the
village of Shaami-Yurt they were attacked by military planes.
Their car was thrown to the side by a blast, which killed her
husband, and wounded her and the driver. Ms Burdynyuk was taken
away by passers-by for first aid, but returned for her husband's
body, which had in the meantime been taken to a village mosque.
With the assistance of a local resident, she took her husband's
body to a roadblock near Achkhoy-Martan and buried it in a shallow
grave. On 4 November she reached Anapa, where her daughter lived.
She was treated in hospital for head trauma and concussion. Upon
release from the hospital, on 2 December 1999, she returned to
Chechnya to collect her husband's body. On 5 December 1999 she
placed it in the Anapa town morgue. She requested the military
prosecutor of the Novorossiysk Garrison to open a criminal
investigation into the attack and to order a forensic expert
report on her husband's body.
56. On 8 December 1999 a forensic report on the body of Boris
Burdynyuk concluded that he had died of a shell wound to the
chest, possibly in the circumstances indicated in his wife's
statement. On 8 December 1999 the Anapa civil registration office
issued a death certificate for Boris Burdynyuk, who had died on 29
October 1999 in the village of Shaami-Yurt, Chechnya.
57. The documents pertaining to the case were forwarded to the
military prosecutor of military unit No. 20102, who on 7 February
2000 issued a decision not to start criminal investigation because
no crime has been committed. There were no grounds to conclude
that military pilots could have been involved in the death of
Boris Burdynyuk.
58. On 23 October 2000 that decision was quashed by a military
prosecutor of military unit No. 20102. The investigation was
joined to investigation of criminal case No. 14/33/0205-00, which
concerned the attack on the Red Cross convoy.
59. On 1 September 2000 Ms Burdynyuk was questioned as a
witness. On the same day an investigator of the Anapa Prosecutor's
Office, acting upon directions from the military prosecutors,
issued a decision to recognise her as a victim and as a civil
plaintiff in the case.
d) Questioning of the first applicant's relatives
60. On 11 August 2000 two of the first applicant's relatives -
her brother Aslanbek Vakhabov and nephew Alikhan Vakhabov - were
questioned as witnesses. Aslanbek testified that his wife and son,
the first and the second applicants and other relatives (he named
12 persons) had left Grozny on the morning of 29 October 1999 for
Ingushetia. The witness had remained at home, and at about 5 p.m.
his relatives had returned with the same minibus. Four of the
people inside had been killed and the rest were wounded, as a
result of an air strike at the convoy. The first applicant's two
children, Ilona Isayeva and Said-Magomed Isayev, were buried in
the Chernorechye cemetery near Grozny. Alikhan Vakhabov, a
teenager who was in the minibus, testified about the circumstances
of the attack and about his splinter wound in the left shoulder.
He was treated in the Atagi hospital immediately after the
incident, and then stayed for some time in the Nazran hospital in
Ingushetia.
61. On 18 October 2000 the investigators questioned Zhalavdi
Magomadov, a relative of the Vakhabovs, who was in the minivan on
29 October 1999 and who gave a detailed account of the events. He
submitted that there were 15 passengers in the minibus, himself
included, plus the driver. He estimated the timing of the attack
between 12 and 1 p.m., because some people had stopped by the road
for the midday prayer (namaz). He recalled that first he heard an
explosion in front of their car, where a Mercedes truck had been
travelling. Their minivan stopped and everyone started to get out
of the car and ran towards the shoulder of the road. At that point
a second explosion occurred on the right side of the road. The
witness was wounded by shrapnel in both legs, one arm and his back
and he was in a state of shock, but he recalled two other
explosions somewhere nearby. He further recalled being brought by
his relatives to the hospital in Staraya Sunzha, where he was
operated on and shrapnel were extracted from his body. Six
passengers in the van were killed: the witness's mother (Asma
Magomedova) and two sisters, the first applicant's two children
and another woman. The witness submitted that no forensic
examinations were performed on the bodies before burial and that
he objected to exhumation of the bodies of his mother and two
sisters. Seven passengers in the minivan, including himself and
the driver, received shrapnel wounds of varying severity. When
asked if he had heard anyone shooting from the convoy at the
planes, the witness denied it and said that he did not see any
armed men in the convoy. He also produced a detailed drawing of
the site, with an indication of the placement of the cars on the
road and the explosions.
62. The investigators attempted to find the first and the
second applicants. In September 2001 they questioned a resident of
Nazran, who stated that in September 1999 - autumn 2000 two
families of refugees, the Yusupovs and Isayevs had lived in his
house. He did not know anything of the attack in October 1999 and
did not know where they had gone afterwards.
e) Examination of the site
63. On 15 August 2000 the investigators of military unit No.
20102, together with two employees of the Red Cross who had
witnessed the attack, travelled to the site. They found the
damaged carcass of the Mercedes truck about 30 metres from the
bridge and photographed it and the fresh asphalt patch on the road
where the witnesses stated the crater had been. The Red Cross
submitted their own photographs of the destroyed truck and of the
explosion craters on the road.
f) Documents related to identification of other victims
64. The investigation attempted to identify and question other
victims of the attack or their relatives and to collect medical
records and death certificates. Requests were sent to the local
departments of the interior in Chechnya, to the district
prosecutors' offices and to the five largest refugee camps in
Ingushetia.
65. On several occasions in 2000 and 2001 six workers from the
Chechen Committee of the Red Cross were questioned about the
circumstances of the attack. They gave detailed explanations,
accompanied by drawings of the site. Relatives of the two deceased
Red Cross drivers were questioned. They testified about the deaths
and identified the graves. An order for exhumation and a forensic
report was issued, but the relatives objected and the order was
not carried out. The father of one driver was granted victim
status in the proceedings in July 2001.
66. In addition to the relatives of the first and the second
applicants, Ms Burdynyuk and Red Cross staff, the investigators
identified other victims. Two correspondents of local TV stations,
Ramzan Mezhidov and Shamil Gegayev, were killed during the attack.
The investigators questioned Mezhidov's mother and widow, who
objected to his exhumation. They submitted his death certificate
and medical documents about his wounds. It does not appear that
Gegayev's relatives were questioned.
67. The relatives of Sadik Guchigov, driver of the truck in
which the Burdynyuk family had been travelling, testified that he
had died from his wounds one month after the events. His widow was
questioned and granted victim status in the proceedings. She also
produced her husband's medical documents and death certificate and
objected to his exhumation.
68. Five other persons who were killed during the attack on the
convoy were identified, their relatives were questioned and some
were granted victim status. In addition, one local resident from
the village Valerik was killed not far from the road when he was
washing his car by a pond, apparently by the same air strikes. His
brother was also granted victim status.
69. The investigation established a total of 18 deaths.
70. The witnesses also consistently referred to a PAZ bus (a 25-
seater), which received a direct hit and where at least 12 persons
were killed. They also referred to a Kamaz truck containing
refugees - mostly women and children - and cattle which was
directly hit and burned down, apparently with no survivors. It
does not appear that the passengers of these two vehicles or their
relatives were ever established.
71. On 6 September 2001 the investigators questioned a woman,
whose name was not submitted to the Court, identified as "Raisa".
She testified that on 29 October 1999, together with three other
persons, she tried to leave in their car for Ingushetia through
the "humanitarian corridor". After they were refused permission to
cross at the checkpoint, they turned back at about noon and
reached Grozny safely. Later she learned that the refugees had
been attacked from the air, and that many people were killed and
wounded. She submitted that on the road back she had seen a group
of four or five men on the edge of the Samashki forest, dressed in
camouflage and with machine-guns. Their car, a mud-splattered all-
terrain UAZ vehicle, was nearby. The witness presumed that these
were Chechen fighters, who could have provoked the military
planes, circling in the skies, to strike at the refugees on the
road. When asked, the witness said that she did not see a Kamaz or
any other trucks with fighters.
72. Through witnesses testimonies and medical documents the
investigators also identified several persons who had been
wounded, among them the first and second applicants.
73. In summer 2001 ten medical records of the wounded on 29
October 1999 were sent from the Urus-Martan hospital for forensic
reports. The reports concluded that the injuries - shrapnel
wounds, traumatic amputations of limbs, concussion, head traumas -
could have been received in the circumstances described by the
victims, i.e. during an air strike. Two of the wounded died later
and their relatives were granted victim status in the proceedings.
One was Ramzan Mezhidov, a local TV reporter. It appears that
other wounded persons or their relatives were not found by the
investigators, despite certain attempts to that effect.
74. On 27 August 2001 the investigator issued nine decisions to
grant victim status to persons whose relatives had been killed or
wounded, among them the first and second applicants. These
decisions were not countersigned by the victims, as prescribed by
the Code of Criminal Procedure, and there is no indication that
they were sent to the applicants or to their relatives whose
addresses had been established.
j) Testimonies of local residents and medical personnel
75. The investigators questioned eight residents of Shaami-
Yurt. They testified that there were air-strikes on the road and
that dead bodies had been brought to the village mosque on 29
October 1999. They also testified about giving first aid to the
victims.
76. In 2000 and 2001 the investigators questioned medical
personnel from the hospitals in Achkhoy-Martan, Staraya Sunzha
(Grozny), Urus-Martan and Nazran (Ingushetia). They testified
about the wounded who had been brought to the hospitals on 29
October 1999. It appears that the majority of the victims were
brought to the Achkhoy-Martan hospital, which was the closest to
the site. However, no records were made that day because the large
number of victims meant that all the staff was busy providing
first aid for the heavy wounds. At least ten wounded persons were
brought to the Urus-Martan hospital and six to the Staraya Sunzha
hospital, where a nurse recalled treating the second applicant and
Zhalaudi Magomadov for shrapnel wounds.
k) Information from the military
77. In November 2000 in the course of the investigation into
the applicants' complaints, the District Prosecutor's Office in
Achkhoy-Martan requested the commander of the UGA and the military
commandant of Chechnya to submit information about flights on 29
October 1999 in the vicinity of Achkhoy-Martan and Shaami-Yurt. It
is unclear if any answers were submitted, and ten days later the
criminal investigation was transferred to the military prosecutor
of military unit No. 20102.
78. In October 2000 the military investigators questioned two
military pilots and an air controller. They were questioned as
witnesses and their real names were not disclosed to the Court.
79. The air controller identified as "Sidorov" submitted that
on the evening on 28 October 1999 he was informed, in accordance
with procedure, about an aviation mission for the following day.
The mission was to prevent the movement along the road towards
Grozny of heavy vehicles, possibly carrying weapons, fighters and
other supply equipment for the "illegal armed groups" defending
the city. On the same evening he informed two pilots of the
mission. Neither on 28 - 29 October 1999, nor later, until the
questioning, had he been informed of a "humanitarian corridor" for
civilians, about the movement of a Red Cross convoy on the road or
about civilian casualties. He was not aware whether the "Kavkaz-1"
roadblock was functioning or not and received no information from
that roadblock.
80. The witness further submitted that on 29 October 1999 the
pilots left for the mission without airborne forward controllers,
because the mission was not perceived to be taking place close
enough to the federal troops. The forward air controllers remained
on the ground in the control tower. At about 2 p.m. one air-crew
reported a solitary Kamaz truck on the road near the village of
Shaami-Yurt, not far from the Samashki forest, from which they
were being fired at. The air controller, knowing from the
reconnaissance information about the presence of fighters in the
Samashki forest and in view of the mission's purpose, permitted
them to open fire. The pilots did not report any other vehicles on
the road or the Red Cross signs on the truck. Neither did they
report any errors in hitting the targets.
81. On 10 October 2000 a pilot identified as "Ivanov" testified
that on 29 October 1999 he was performing a mission to prevent the
movement of heavy vehicles towards Grozny. On the road near Shaami-
Yurt, about 100 metres from the bridge, he observed a dark-green
Kamaz truck with a canvass cover. He descended from 1500 metres to
200 metres for a closer look. The pilot could see the truck very
clearly, was certain of its mark and was sure that it did not bear
any signs of the Red Cross. When asked, he responded that had he
seen the Red Cross signs, he would not have fired at the vehicle.
He was also certain that there were no other vehicles on the road
at that time. The wingman reported fire from the truck, and the
pilot requested the ground controller's permission to open fire.
Permission was granted and the pilot made a loop, aimed at the
truck and fired rockets from the height of 800 metres. By that
time the truck had already crossed the bridge. The timing of the
attack was about 2.05 - 2.10 p.m. He then climbed to 2000 metres.
When flying over the site he noted that the truck had stopped.
Then, at the crossroads near the village of Kulary he noted a
second solitary Kamaz truck, also dark-green, and a group of armed
persons dressed in camouflage near it, firing at the planes with
sub-machine guns. The crew's attention was drawn to this new
target and they no longer observed the first target. The
visibility conditions were good and the sky was clear. No other
cars were on the road at the time. The pilot submitted a drawing
of the site with indications of the two solitary trucks on the
road.
82. On 10 October 2000 a pilot identified as "Petrov" was
questioned as a witness. His testimony begins with words "I
confirm my previous submissions", however no other testimonies
from him were submitted to the Court. He repeated, almost word for
word, the first pilot's submissions about the circumstances of the
attack on 29 October 1999. He added that he did not see "any
refugee convoys" or cars marked with a Red Cross symbol.
83. On 8 December 2000 additional information was taken from
the pilot identified as "Ivanov". The statement refers to two
previous interviews, of which only one - dated 10 October 2000 -
was submitted to the Court. The pilot was questioned about the
number and type of missiles fired. He said that he fired two S-24
missiles at the first Kamaz truck.
84. As well as answering questions, the pilots were asked to
indicate the coordinates of their targets on a detailed map of the
district, which they did. One target was marked on the road before
the bridge leading to the village of Shaami-Yurt, the other -
about 12 kilometres away along the same road, on an intersection
near the village of Kulary.
85. The case-file also contains two photographs of planes,
undated and without descriptions.
l) Decision to close the criminal proceedings and its challenge
86. On 7 September 2001 the criminal case was closed due to the
absence of corpus delicti in the pilots' actions. It does not
appear, however, that this decision was communicated in a timely
manner to the victims or to the applicants. Nor was a copy of this
decision submitted to the Court.
87. On 6 June 2002 Ms Burdynyuk wrote to the Rostov-on-Don
Garrison Military Court asking for review of the decision not to
open criminal proceedings. On 31 December 2002 the Military
Prosecutor of the Northern Caucasus forwarded her complaint to the
Military Circuit Court, along with the criminal case which
comprised five volumes. On 4 February 2003 the North Caucasus
Circuit Military Court established that the case should have been
reviewed by the Grozny Garrison Court, but because the latter was
not functioning, the case was transferred to the Bataysk Garrison
Military Court.
88. On 14 March 2003 the Bataysk Garrison Military Court
quashed the decision of 7 September 2001 and remitted the case for
a new investigation. The court cited the decision of 7 September
2001, according to which the investigation had established that on
29 October 1999 the pilots "Ivanov" and "Petrov" struck at two
solitary Kamaz trucks containing rebel fighters on the road
between the border between Ingushetia and Grozny. Both vehicles
were destroyed. However, besides the two vehicles, the rockets
damaged the convoy of Red Cross vehicles and refugees. As a result
of the attack, 14 vehicles were destroyed and 16 persons killed,
including Ms Burdynyuk's husband; 11 persons were wounded. The
investigation concluded that "the convoy was indeed damaged by the
actions of the pilots "Ivanov" and "Petrov" from the Ministry of
Defence, who were acting in accordance with their mission and
aimed the missiles at the cluster of enemy personal and hardware.
They did not intend to destroy the civilian population and the Red
Cross convoy, because they did not and could not have foreseen
such a possibility. Death and injuries were caused to the victims
because they, on their own initiative, happened to be in the
impact zone of the missiles, the extent of which exceeds 800
metres".
The Garrison Court stated:
"On 7 September 2001 the criminal case was closed by an
investigator of the Circuit Military Prosecutor's Office for the
Northern Caucasus under Article 5 з 2 of the Criminal Procedural
Code, i.e. due to the absence of corpus delicti in the pilots'
actions, because the vehicles of the Red Cross and of the refugees
on their own entered into the impact zone of the missiles. The
pilots did not and could have not foreseen such consequences.
The court believes that the pilots were executing an assigned
task, namely to "locate and destroy fortified points and the enemy
mobile forces and resources" in "free chase" mode, i.e. the
decision to employ combat means was based on their own
appreciation of the observed situation. There is no doubt that
such assessment should include not only an assessment of the
targets, but also of the possible harm to other vehicles and
persons who were in the vicinity. Observing the said targets (cars
with "fighters"), they could not have failed to notice other
vehicles with people nearby, and they should have proportionated
the weapons according to their characteristics, precision, damage
radius etc. The court finds that the pilots did not take all this
properly into account, which explains that 14 civilian vehicles
were damaged, 16 persons killed and 11 persons were wounded as a
result of the missile attack.
... taking into account that not all investigative measures
were taken to the extent necessary to ascertain the pilots' guilt,
an additional investigation is needed in this case".
89. On 26 March 2003 the North Caucasus Military Prosecutor's
Office accepted the case for further investigation.
m) Decision of 5 May 2004
90. On 5 May 2004 a prosecutor of the North Caucasus Military
Prosecutor's Office again closed the criminal case due to the
absence of corpus delicti in the pilots' actions. A copy of this
document was submitted by the Government after the hearings in
Strasbourg on 14 October 2004. The Government did not submit new
documents from the investigation file to which the decision
refers. From this document it follows that at some point
(presumably, after March 2003) the first and the second applicants
were questioned as witnesses about the circumstances of the attack
and granted victim status in the proceedings. Additional attempts
were made to find and question the third applicant, but they were
not successful.
91. The document also referred to some additional evidence
obtained from the military. It mentioned a log book which noted
the time of the missile strike on 29 October 1999 in the vicinity
of Shaami-Yurt as 14.05 - 14.20 p.m.
92. The decision referred to undated statements of the two
pilots identified as P. and B. (presumably the same ones as
"Ivanov" and "Petrov", cited above in зз 81 - 84). Pilot P. in his
statement allegedly submitted that while on mission on 29 October
1999 they noted a Kamaz truck on the eastern edge of the Samashki
forest, near the village of Shaami-Yurt. Some persons jumped out
and ran towards the forest. At the same time the plane was shot at
from the truck, probably with a large-calibre machine-gun. The
pilot realised that the plane had been hit. He reported this to
the leading pilot, who requested permission to use fire-power from
the control centre. When the permission had been granted, they
both fired at the truck two rockets each, twice, from the height
of 1600 - 2000 metres. At that time they did not notice any other
vehicles on the road in the vicinity of the truck. There were some
vehicles further on the road, towards Grozny, but at a
considerable distance. One or two seconds after the missiles were
fired the pilot noted another truck coming out of the Samashki
forest and heading towards Grozny. The truck entered the impact
zone. The pilot did not have time to verify what had happened to
it or if there had been other vehicles on the road because of the
danger of being shot at.
93. Pilot P. is further quoted as saying that they were
informed that the road had been closed at the administrative
border with Ingushetia. They therefore presumed that the trucks
were coming out of the Samashki forest, where a considerable group
of fighters ("boyeviki") had gathered. They did not see any
transport moving out of Grozny at that time. Pilot B. is quoted as
having added to these statements that the missiles could have
changed the direction on their own, or because they had been shot
at from the ground.
94. The document further cites undated statements of two
unidentified airport technicians, who had on 29 October 1999
examined two SU-25 planes after their return from a mission. The
pilots informed them that they had been shot at, probably with a
large-calibre machine-gun. The examination of both planes, hull
numbers 40 and 73 respectively, revealed two holes, 20 and 70 - 90
mm large, in the first plane and one hole, 20 mm large, in the
second plane. One technician suggested that the holes resulted
from large-calibre machine-gun bullets. The decision further
referred to two undated protocols of inspection of planes Nos. 40
and 73, which noted similar damage.
95. The decision further mentioned statements on unspecified
dates by the commander of the military aviation unit and 12 of the
pilots' colleagues, who apparently denied having heard anything
about the attack on the civilian convoy on 29 October 1999.
96. In addition, the decision of 5 May 2004 referred to the
results of an investigative experiment, which showed that the sign
of the red cross on the flag of the Chechen Committee of the Red
Cross was clearly distinguishable from the distance of 200 metres.
The document also referred to information from the headquarters of
the 4-th Army of the Air Force and Anti-Air Defence which defined
the impact radius of the S-24 missiles at 300 metres.
97. The document concluded that harm to the civilians was
caused by the actions of the pilots B. and P., who had acted in
permissible self-defence and had tried to prevent damage to the
legitimate interests of the society and state from members of
illegal armed groups. Furthermore, the pilots did not intend to
cause harm to the civilians because they did not see them until
the missiles had been launched. The criminal investigation was
closed for absence of corpus delicti in the pilots' actions. By
the same decision the decisions to grant victim status in the
civil proceedings were quashed, and the victims should have been
informed of a possibility to seek redress from the Ministry of
Defence through civil proceedings. It does not appear that the
decision was sent to the victims, including the applicants.
2. Documents submitted by the applicants
98. The applicants submitted a number of additional documents
relating to the circumstances of the attack and the investigation.
a) Additional statements by the applicants
99. The applicants submitted additional statements about the
circumstances of the attack and its effects. The second applicant
submitted that the shock of that day has stayed with her and her
relatives. The third applicant submitted that "since that attack
on the road I am plagued by nightmares... I am still sick every
time I see a dummy in a shop window. It reminds me of the dead I
saw on the Rostov-Baku highway. This effect is so strong that on
several occasions I have fainted in shops. A month ago I walked
into a phone company store in Nazran. They had a model of a hand
in the shop window. That brought back the memory of a hand cut off
and a woman's leg that I saw right in front of me on the road on
29 October 1999. I felt sick and fainted. I was sick for some days
afterwards. Now I simply can't walk into a shop with dummies or
with models of human bodies".
100. The third applicant also submitted a list of items which
were inside the GAZ vehicle destroyed during the attack and
documents for the three vehicles destroyed during the attack - a
"Zhiguli" VAZ 21063, produced in 1992, a "Niva" VAZ 21213,
produced in 1996 and a GAZ 53, produced in 1982. The list of items
included cash in US dollars to the amount of 48,000, hi-fi and
computer equipment to a value of 1,350 US dollars, household items
and clothing to the value of 28,640 US dollars, jewellery to the
value of 8,770 US dollars, and three cars to a value of 20,500 US
dollars. The total value was indicated at 108,760 US dollars.
b) Statements of other witnesses and victims
101. The applicants submitted five additional testimonies from
witnesses and victims, related to the circumstances of the attack.
Witness A. testified that she was in the same car as Ramzan
Mezhidov and Shamil Gigayev, TV reporters, both of whom were
killed. After the first blast Mezhidov got out of the car and
filmed the destruction around him; he was killed by a second
blast. Afterwards, they attempted to retrieve his camera and the
tape, but they were beyond repair. Gigayev's widow testified about
her husband's death. Witness B. testified that their car was near
Shaami-Yurt and returning to Grozny when the attack occurred. The
witness and his brother were wounded and taken to the Urus-Martan
hospital for treatment. On 22 November 1999 he was transferred to
Ingushetia. Two other witnesses, employees of the Red Cross, also
described the circumstances of the attack. All witnesses denied
that there had been any shooting at the planes before or during
the attack, or that there were armed men in the convoy.
c) Human Rights Watch Report
102. The applicants submitted a report prepared by the NGO
Human Rights Watch in April 2003, entitled "A Summary of Human
Rights Watch Research on Attacks on Fleeing Civilians and Civilian
Convoys during the War in Chechnya, Russia, between October 1999
and February 2000". The submission, prepared for the European
Court of Human Rights, is based on eyewitness testimonies
collected by the HRW researchers in Ingushetia between November
1999 and May 2000. The report described at least five independent
incidents where civilians fleeing from fighting were attacked en
route. The report stated that "the Russian forces appear to have
deliberately bombed, shelled, or fired upon civilian convoys,
causing significant civilian casualties. ... The most egregious
attack occurred on October 29, 1999 when dozens of civilian
vehicles taking a so-called safe route out of Grozny on the Baku-
Rostov highway were attacked by Russian aircraft." The report
invoked provisions of international humanitarian law, namely
Common Article 3 to the Geneva Conventions of 1949, as well as
Article 13 (2) of Protocol II Additional to the Geneva Conventions
of August 1949. The report submitted that "where aircraft make
multiple attack passes over a civilian convoy, or convoys are
subject to prolonged attack by ground troops, the most plausible
inference is that such attacks are intentional and with the likely
knowledge of the predominantly civil character of the convoy.
Customary international law requires that any attacks discriminate
between the civilians and military objects and that foreseeable
injury to civilians be proportionate to the direct and concrete
military advantage to be gained by the attack. ... Each of the
incidents described below raises concerns that civilians may have
been targeted intentionally or that the force used was not
proportionate to the military advantage pursued...".
103. The report proceeded to describe in detail the
announcement of the safe route on 29 October 1999, the closing of
the administrative border with Ingushetia and the attack itself.
Based on interviews with witnesses, press articles and public
statements, it presented information about the damaged vehicles.
It referred to the van with 13 passengers in which the first and
the second applicants with their families were travelling. The
second applicant and another passenger who had been in the minivan
were interviewed and gave details of the attack.
104. The report concluded that the exact number of victims of
the attack is unknown and it is unlikely that it would ever be
known, since many victims were never identified. The eyewitnesses
gave accounts of the number of persons killed, varying between 40
and 70 people. They were buried in nearby villages.
3. Documents related to the establishment
of facts in the domestic courts
105. Various documents related to the establishment of facts of
the first applicant's children's deaths were submitted to the
Court.
a) The first applicant's statement
106. In her statement of 15 December 1999 the first applicant
asked the Nazran Town Court to certify the fact of her two
children's deaths. She submitted that on 29 October 1999 a refugee
convoy was attacked by fighter planes on the "Kavkaz" highway,
between Achkhoy-Martan and Shaami-Yurt. Many people were killed,
among them her children Ilona Isayeva and Said-Magomed Isayev.
Their bodies were taken back to Grozny and buried in Chernorechye,
near Grozny. The applicant could not attend her children's
funeral, because at that time she was being treated for her wounds
by relatives in Grozny. She could not produce any documents about
her children's deaths nor about her own wounds, because no
hospital or state body was functioning in Chechnya due to the
hostilities. The applicant could not even obtain a burial
certificate from the local authority. She requested that the
second applicant and Ruslan Vakhabov be called to testify about
her children's deaths, to which they had been eyewitnesses. At
that time they were all living in the Logovaz-1 refugee camp in
Nazran. The court decision was required to obtain death
certificates, which the civil registration body had refused to
issue in the absence of medical certification of the deaths.
b) Transcript of the court proceedings
107. On 20 December 1999 the Nazran Town Court granted the
first applicant's request. From the transcript of the proceedings
it follows that the court heard the first applicant, who repeated
her statement, and two witnesses as she had requested. Ruslan
Vakhabov and the second applicant confirmed the deaths of Ilona
Isayeva and Said-Magomed Isayev (see з 35 above).
II. Relevant domestic law and practice
a) The Constitutional provisions
108. Article 20 of the Constitution of the Russian Federation
protects the right to life.
109. Article 46 of the Constitution guarantees the protection
of rights and liberties in a court of law by providing that the
decisions and actions of any public authority may be appealed to a
court of law. Section 3 of the same Article guarantees the right
to apply to international bodies for the protection of human
rights once domestic legal remedies have been exhausted.
110. Articles 52 and 53 provide that the rights of victims of
crime and abuse of power shall be protected by law. They are
guaranteed access to the courts and compensation by the State for
damage caused by the unlawful actions of a public authority.
111. Article 55 (3) provides for the restriction of rights and
liberties by federal law, but only to the extent required for the
protection of the fundamental principles of the constitutional
system, morality, health, rights and lawful interests of other
persons, the defence of the country and the security of the state.
112. Article 56 of the Constitution provides that a state of
emergency may be declared in accordance with federal law. Certain
rights, including the right to life and freedom from torture, may
not be restricted.
b) The Law on Defence
113. Section 25 of the Law on Defence (Федеральный закон от 31
мая 1996 г. N 61-ФЗ "Об обороне") provides that "supervision of
adherence to laws and investigations of crimes committed in the
Armed Forces of the Russian Federation, other Forces, military
formations and authorities shall be exercised by the General
Prosecutor of the Russian Federation and subordinate prosecutors.
Civil and criminal cases in the Armed Forces of the Russian
Federation, other forces, military formations and authorities
shall be examined by the courts in accordance with the legislation
of the Russian Federation."
c) The Law on the Suppression of Terrorism
114. The Law on the Suppression of Terrorism (Федеральный закон
от 25 июля 1998 г. N 130-ФЗ "О борьбе с терроризмом") provides as
follows:
"Section 3. Basic Concepts
For purposes of the present Federal Law the following basic
concepts shall be applied:
... "the suppression of terrorism" shall refer to activities
aimed at the prevention, detection, suppression and minimisation
of the consequences of terrorist activities;
"counter terrorist operation" shall refer to special activities
aimed at the prevention of terrorist acts, ensuring the security
of individuals, neutralising terrorists and minimising the
consequences of terrorist acts;
"zone of a counter-terrorist operation" shall refer to an
individual terrain or water surface, means of transport, building,
structure or premises with adjacent territory where a counter-
terrorist operation is conducted; ...
Section 13. Legal regime in the zone of an anti-terrorist
operation
1. In the zone of an anti-terrorist operation, the persons
conducting the operation shall be entitled:
... 2) to check the identity documents of private persons and
officials and, where they have no identity documents, to detain
them for identification;
3) to detain persons who have committed or are committing
offences or other acts in defiance of the lawful demands of
persons engaged in an anti-terrorist operation, including acts of
unauthorised entry or attempted entry to the zone of the anti-
terrorist operation, and to convey such persons to the local
bodies of the Ministry of the Interior of the Russian Federation;
4) to enter private residential or other premises... and means
of transport while suppressing a terrorist act or pursuing persons
suspected of committing such an act, when a delay may jeopardise
human life or health;
5) to search persons, their belongings and vehicles entering or
exiting the zone of an anti-terrorist operation, including with
the use of technical means; ...
Section 21. Exemption from liability for damage
In accordance with and within the limits established by the
legislation, damage may be caused to the life, health and property
of terrorists, as well as to other legally-protected interests, in
the course of conducting an anti-terrorist operation. However,
servicemen, experts and other persons engaged in the suppression
of terrorism shall be exempted from liability for such damage, in
accordance with the legislation of the Russian Federation."
d) The Code of Civil Procedure
115. Articles 126 - 127 of the Code of Civil Procedure
(Гражданский процессуальный Кодекс РСФСР)), in force at the
material time, contained general formal requirements governing an
application to a court, including, inter alia, the defendant's
name and address, the exact circumstances on which the claim was
based and any documents supporting the claim.
Article 214 part 4 provided that the court had to suspend
consideration of a case if it could not be considered until
completion of another set of civil, criminal or administrative
proceedings.
116. Article 225 of the Code provided that if in the course of
reviewing a complaint against the actions of an official or a
civil claim a court came across information indicating that a
crime had been committed, it was required to inform the
prosecutor.
117. Chapter 24-1 established that a citizen could apply to a
court for redress in respect of unlawful actions by a state body
or official. Such complaints could have been submitted to a court,
either at the location of the state body or at the plaintiff's
place of residence, at the latter's discretion. Under the same
procedure, the courts could also rule on an award of damages,
including non-pecuniary damages, where they concluded that a
violation had occurred.
e) The Code of Criminal Procedure
118. The Code of Criminal Procedure (Уголовно-процессуальный
Кодекс РСФСР 1960 г. с изменениями и дополнениями), in force at
the material time, contained provisions relating to criminal
investigations.
119. Article 53 stated that where a victim had died as a result
of a crime, his or her close relatives should be granted victim
status. During the investigation the victim could submit evidence
and bring motions, and once the investigation was complete the
victim had full access to the case-file.
120. Article 108 provided that criminal proceedings could be
instituted on the basis of letters and complaints from citizens,
public or private bodies, articles in the press or a discovery by
an investigating body, prosecutor or court of evidence that a
crime had been committed.
121. Article 109 provided that the investigating body was to
take one of the following decisions within a maximum period of ten
days after notification of a crime: open or refuse to open a
criminal investigation, or transmit the information to an
appropriate body. The informants were to be informed of any
decision.
122. Article 113 provided, where an investigating body refused
to open a criminal investigation, a reasoned decision was to be
provided. The informant was to be made aware of the decision and
could appeal to a higher-ranking prosecutor or to a court.
123. Article 126 provided that military prosecutor's office was
responsible for the investigation of crimes committed by military
servicemen in relation to their official duties or within the
boundaries of a military unit.
124. Articles 208 and 209 contained information relating to the
closure of a criminal investigation. Reasons for closing a
criminal case included the absence of corpus delicti. Such
decisions could be appealed to a higher-ranking prosecutor or to a
court.
f) Situation in the Chechen Republic
125. No state of emergency or martial law has been declared in
Chechnya. No federal law has been enacted to restrict the rights
of the population of the area. No derogation under Article 15 of
the Convention has been made.
g) Amnesty
126. On 6 June 2003 the State Duma adopted Decree No. 4124-III,
by which an amnesty was granted in respect of criminal acts
committed by the participants to the conflict on both sides in the
period between December 1993 and June 2003. The amnesty does not
apply to grievous crimes, such as murder.
THE LAW
I. The government's preliminary objection
A. Arguments of the parties
1. The Government
127. The Government requested the Court to declare the
applications inadmissible on the grounds that the applicants had
failed to exhaust the domestic remedies available to them. They
submitted that the relevant authorities had conducted criminal
investigations into civilian deaths and injuries and the
destruction of property in Chechnya, in accordance with the
domestic legislation.
128. The Government also submitted that, although the courts in
Chechnya had indeed ceased to function in 1996, civil remedies
were still available to those who moved out of Chechnya.
Established practice allowed them to apply to the Supreme Court or
directly to the courts at their new place of residence, which
would then consider their applications. In 2001 the courts in
Chechnya had resumed work and had reviewed a large number of civil
and criminal cases.
a) The Supreme Court
129. The availability of the Supreme Court remedy was
supported, in the Government's view, by the possibility for the
Supreme Court to act as a court of first instance in civil cases.
The Government referred to two Supreme Court decisions of 2002 and
2003, by which the provisions of two Government decrees were found
null and void following individual complaints. They also referred
to the case of K., at whose request his claim for non-pecuniary
damages against a military unit was transferred from a district
court in Chechnya to the Supreme Court of Dagestan because he
insisted on the participation of lay assessors in the proceedings,
and such assessors were not available in Chechnya.
b) Application to other courts
130. The possibility of applying to a court at their new places
of residence was supported by the fact that the first applicant
had successfully applied to the Nazran District Court in
Ingushetia for certification of her children's deaths.
131. As further proof of the effectiveness of this avenue, the
Government referred to the case of Khashiyev v. Russia (No.
57942/00). In this case, the applicant, whose relatives had been
killed in Grozny in January 2000 by unknown perpetrators (but
where there was strong evidence to conclude that the killings had
been committed by federal servicemen), applied to the Nazran
District Court in Ingushetia, which on 26 February 2003 awarded
substantial pecuniary and non-pecuniary damages for the deaths of
the applicant's relatives. This decision was upheld at final
instance and executed, thereby proving that an application to a
relevant district court was an effective remedy in cases such as
the applicants'.
2. The applicants
132. The applicants submitted that they had complied with the
obligation to exhaust domestic remedies, in that the remedies
referred to by the Government would be illusory, inadequate and
ineffective. The applicants based this assertion on the following
arguments.
a) The violations were carried out by State agents
133. The applicants submitted that the anti-terrorist operation
in Chechnya, run by agents of the State, was based on the
provisions of the Law on the Suppression of Terrorism, and was
officially sanctioned at the highest level of State power.
134. The applicants referred to the text of the Law on the
Suppression of Terrorism, which allowed anti-terrorist units to
interfere with a number of rights, including the right to freedom
of movement, liberty, privacy of home and correspondence, etc. The
Law set no clear limit on the extent to which such rights could be
restricted and provided for no remedies for the victims of
violations. Nor did it contain provisions regarding officials'
responsibility for possible abuses of power. The applicants
referred to correspondence between the Secretary General of the
Council of Europe and the Russian Government in 2000 under Article
52 of the European Convention on Human Rights. They pointed out
that the Consolidated Report, commissioned by the Secretary
General to analyse the correspondence, had highlighted those
deficiencies in the very Law to which the Russian Government
referred as a legal basis for their actions in Chechnya.
135. They also submitted that although the officials who had
mounted the anti-terrorist operations in Chechnya should have been
aware of the possibility of wide-scale human rights abuses, no
meaningful steps had been taken to stop or prevent them. They
submitted press-cuttings containing praise of the military and
police operations in Chechnya by the President of the Russian
Federation, and suggested that prosecutors would be unwilling to
contradict the "official line" by prosecuting agents of the law-
enforcement bodies or the military.
136. The applicants alleged that there was a practice of non-
respect of the requirement to investigate abuses committed by
servicemen and members of the police effectively, both in
peacetime and during conflict. The applicants based this assertion
on four principal grounds: impunity for the crimes committed
during the current period of hostilities (since 1999), impunity
for the crimes committed in 1994 - 1996, impunity for police
torture and ill-treatment all over Russia, and impunity for the
torture and ill-treatment that occur in army units in general.
137. As to the current situation in Chechnya, the applicants
cited human rights groups, NGO and media reports on violations of
civilians' rights by federal forces. They also referred to a
number of the Council of Europe documents deploring lack of
progress in investigations into credible allegations of human
rights abuses committed by the federal forces.
b) Ineffectiveness of the legal system in the applicants' case
138. The applicants further argued that the domestic remedies
to which the Government referred were ineffective due to the
failure of the legal system to provide redress. They invoked the
Court judgment in the case of Akdivar and Others v. Turkey and
argued that the Russian Federation had failed to satisfy the
requirement that the remedy was "an effective one, available in
theory and in practice at the relevant time, that is to say, that
it was accessible, was one which was capable of providing redress
in respect of the applicant's complaint and offered reasonable
prospects of success" (see the Akdivar and Others v. Turkey
judgment of 30 August 1996, Reports of Judgments and Decisions
1996-IV, p. 1210, з 68).
139. In the applicants' view, the Government had not satisfied
the criteria set out in the Akdivar judgment, since they had
provided no evidence that the remedies that existed in theory are
or were capable of providing redress, or that they offered any
reasonable prospects of success. The applicants challenged each of
the two remedies mentioned by the Government.
140. So far as civil proceedings were concerned, the applicants
submitted that they did not have effective access to the remedies
suggested by the Government. An application to the Supreme Court
would be plainly useless, because it had only limited jurisdiction
as a court of first instance, e.g. to review the lawfulness of
administrative acts. The Supreme Court's published case-law did
not contain a single example of a civil case brought by a victim
of the armed conflict in Chechnya against the state authorities.
As to the possible transfer of cases by the Supreme Court, the
applicants referred to a decision by the Constitutional Court of
16 March 1998, which found that certain provisions of the Code of
Civil Procedure then in force, permitting higher courts to
transfer cases from one court to another were unconstitutional. As
to the possibility of applying to a district court in a
neighbouring region or in Chechnya, the applicants submitted that
this would have been impractical and inefficient.
141. In respect of a civil claim, the applicants argued that,
in any event, it could not have provided an effective remedy
within the meaning of the Convention. A civil claim would
ultimately be unsuccessful in the absence of a meaningful
investigation, and a civil court would be forced to suspend
consideration of such a claim pending the investigation under
Article 214 (4) of the Code of Civil Procedure. They further
argued that civil proceedings could only lead to compensation for
pecuniary and non-pecuniary damages, while their principal
objective was to see the perpetrators brought to justice. Finally,
they pointed out that although civil claims to obtain compensation
for the military's illicit actions had been submitted to the
courts, almost none had been successful.
142. The applicants submitted that criminal proceedings alone
were capable of providing adequate effective remedies, and that
compensation could be awarded to them in the course of criminal
proceedings as victims of the crimes. The applicants questioned
the effectiveness of the investigation into their case.
B. The Court's assessment
143. In the present case the Court made no decision about
exhaustion of domestic remedies at the admissibility stage, having
found that this question was too closely linked to the merits. The
same preliminary objection being raised by the Government at the
stage of considerations on the merits, the Court should proceed to
evaluate the arguments of the parties in view of the Convention
provisions and its relevant practice.
144. The Court recalls that the rule of exhaustion of domestic
remedies referred to in Article 35 з 1 of the Convention obliges
applicants first to use the remedies that are normally available
and sufficient in the domestic legal system to enable them to
obtain redress for the breaches alleged. The existence of the
remedies must be sufficiently certain, in practice as well as in
theory, failing which they will lack the requisite accessibility
and effectiveness. Article 35 з 1 also requires that the
complaints intended to be brought subsequently before the Court
should have been made to the appropriate domestic body, at least
in substance and in compliance with the formal requirements laid
down in domestic law, but that no recourse should be had to
remedies which are inadequate or ineffective (see the Aksoy v.
Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275 -
76, зз 51 - 52, and the Akdivar and Others v. Turkey judgment
cited above, p. 1210, зз 65 - 67).
145. The Court emphasises that the application of the rule of
exhaustion of domestic remedies must make due allowance for the
fact that it is being applied in the context of machinery for the
protection of human rights that the Contracting States have agreed
to set up. Accordingly, it has recognised that Article 35 з 1 must
be applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion
is neither absolute nor capable of being applied automatically;
for the purposes of reviewing whether it has been observed, it is
essential to have regard to the circumstances of the individual
case. This means, in particular, that the Court must take
realistic account not only of the existence of formal remedies in
the legal system of the Contracting State concerned but also of
the general context in which they operate, as well as the personal
circumstances of the applicant. It must then examine whether, in
all the circumstances of the case, the applicant did everything
that could reasonably be expected of him or her to exhaust
domestic remedies (see the Akdivar and Others judgment cited
above, p. 1211, з 69, and the Aksoy judgment cited above, p. 2276,
зз 53 and 54).
146. The Court observes that Russian law provides, in
principle, two avenues of recourse for the victims of illegal and
criminal acts attributable to the State or its agents, namely
civil procedure and criminal remedies.
147. As regards a civil action to obtain redress for damage
sustained through alleged illegal acts or unlawful conduct on the
part of State agents, the Court recalls that the Government have
relied on two possibilities, namely to lodge a complaint with the
Supreme Court or to lodge a complaint with other courts (see зз
127 - 131 above). The Court notes that at the date on which the
present application was declared admissible, no decision had been
produced to it in which the Supreme Court or other courts were
able, in the absence of any results from the criminal
investigation, to consider the merits of a claim relating to
alleged serious criminal actions. In the instant case, however,
the applicants are not aware of the identity of the potential
defendant, and so, being dependent for such information on the
outcome of the criminal investigation, did not bring such an
action.
148. As regards the case of Mr Khashiyev, who had brought a
complaint to the Court (No. 57942/00), to which the Government
refer, it is true that, after receiving the Government's claim
that a civil remedy existed, he brought an action before the
Nazran District Court in Ingushetia. That court was not able to,
and did not, pursue any independent investigation as to the person
or persons responsible for the fatal assaults, but it did make an
award of damages to Mr Khashiyev on the basis of the common
knowledge of the military superiority of the Russian federal
forces in the district in question at the relevant time and the
State's general liability for the actions by the military.
149. The Court does not consider that that decision affects the
effectiveness of a civil action as regards exhaustion of domestic
remedies. Despite a positive outcome for Mr Khashiyev in the form
of a financial award, it confirms that a civil action is not
capable, without the benefit of the conclusions of a criminal
investigation, of making any findings as to the identity of the
perpetrators of fatal assaults, and still less to establish their
responsibility. Furthermore, a Contracting State's obligation
under Articles 2 and 13 of the Convention to conduct an
investigation capable of leading to the identification and
punishment of those responsible in cases of fatal assault might be
rendered illusory if, in respect of complaints under those
Articles, an applicant would be required to exhaust an action
leading only to an award of damages (see {Yasa} v. Turkey,
judgment of 2 September 1998, Reports 1998-VI, p. 2431, з 74).
150. The Court also notes the practical difficulties cited by
the applicants and the fact that the law-enforcement bodies were
not functioning properly in Chechnya at the time. In this respect
the Court is of the opinion that there existed special
circumstances which affected their obligation to exhaust remedies
that would otherwise be available under Article 35 з 1 of the
Convention.
151. In the light of the above the Court finds that the
applicants were not obliged to pursue the civil remedies suggested
by the Government in order to exhaust domestic remedies, and the
preliminary objection is in this respect unfounded.
152. As regards criminal law remedies, the Court observes that
a criminal investigation was instituted into the attack on the
refugee convoy, albeit only after a considerable delay - in May
2000, despite the fact that the authorities were aware of it
immediately after the incident. The complaints to the authorities
made by other victims of the attack, the Committee of the Red
Cross and Ms Burdynyuk, in November and December 2000, did not
lead to an investigation. The Court further notes that, at least
for several years after the incident, the applicants were not
questioned about the event, were not granted victim status, had no
access to the investigation file and were never informed of its
progress (see зз 62, 74, 86, 90 above). No charges were brought
against any individuals.
153. The Court considers that this limb of the Government's
preliminary objection raises issues concerning the effectiveness
of the criminal investigation in uncovering the facts and
responsibility for the attack of which the applicants complain.
These issues are closely linked to those raised in the applicant's
complaints under Articles 2, 3 and 13 of the Convention. Thus, it
considers that these matters fall to be examined under the
substantive provisions of the Convention invoked by the
applicants. In view of the above, it is not necessary for the
Court to decide whether there was indeed a practice of non-
investigation of crimes committed by police or military officials,
as claimed by the applicants.
II. Alleged violation of Article 2 of the Convention
154. The first applicant alleged that her two children were
killed by agents of the State in violation of Article 2. The three
applicants complained that their right to life was violated by the
attacks against the convoy by military planes. They also submitted
that the authorities had failed to carry out an effective and
adequate investigation into these attacks. They relied on Article
2 of the Convention, which provides:
"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."
A. The alleged failure to protect life
1. Arguments of the parties
a) The applicants
155. The applicants alleged that the way in which the operation
had been planned, controlled and executed constituted a violation
of their own right to life and the right to life of their
relatives. In their opinion, this violation was intentional,
because the authorities should have known of the massive civilian
presence on that road on 29 October 1999 and because the aircraft
flew for a relatively long time at low altitude above the convoy
before firing at it.
156. The choice of means in the present case, namely that of
the military aviation and S-24 missiles with a large radius of
destruction, was not in conformity with the "strict
proportionality" test, established in the Court's practice. They
submitted that the degree of force used was manifestly
disproportionate to whatever aim the military were trying to
achieve, even had it been used in self-defence.
157. The applicants regarded the aerial bombardment as an
indiscriminate attack on civilians, which could not be justified
under international humanitarian law. They referred, in this
respect, to the common Article 3 of the Geneva Conventions of 12
August 1949.
158. The applicants pointed to the Government's failure to
produce all the documents contained in the case-file related to
the investigation of the attack. In their opinion, this should
lead the Court to draw inferences as to the well-foundedness of
their allegations.
b) The Government
159. The Government did not dispute the fact of the attack, the
fact that the first applicant's two children had been killed or
the fact that the first and the second applicants had been
wounded.
160. They submitted that the pilots had not intended to cause
harm to the civilians, because they did not and could not have
seen the convoy. In the Government's view, the attack and its
consequences were legitimate under Article 2 з 2 (a), i.e. they
had resulted from the use of force absolutely necessary in the
circumstances of protection of a person from unlawful violence.
Basing themselves on the results of the investigation, they
submitted that the use of air power was justified by the heavy
fire opened by members of illegal armed formations, which
constituted a threat not only to the pilots, but also to the
civilians who were in the vicinity. The pilots had to act in order
to stop these illegal actions.
c) The third party submissions
161. Rights International, the Centre for International Human
Rights Law, Inc., a USA based NGO, submitted written comments.
They submitted, referring to the Court's decision in {Bankovic}
and Others v. Belgium and 16 Other Contracting States, that the
Court should take into account any relevant rules of international
law in interpreting the Convention (see {Bankovic} and Others v.
Belgium and 16 Other Contracting States (dec.) [GC], No. 52207/99,
ECHR 2001-XII).
162. The submission addressed the relevant rules of
international law governing armed attacks on mixed
combatant/civilian targets during a non-international armed
conflict.
163. Common Article 3 of the 1949 Geneva Conventions governs
non-international conflicts. The relevant provisions state:
"In the case of armed conflict not of an international
character occurring in the territory of one of the High
Contracting Parties, each Party to the conflict shall be bound to
apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities... shall
in all circumstances be treated humanely... To this end the
following acts are and shall be prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person..."
164. Individuals are criminally responsible for violations of
Common Article 3 under both the Geneva Conventions and the
International Criminal Court (ICC) Statute.
165. The submission recognised the difficulty of
differentiating between combatants and non-combatants in non-
international military conflicts, where the irregular military
forces are not clearly identified as such. In these circumstances
it was essential that attacks on mixed combatant/civilian targets
be undertaken in a manner calculated to reduce the probability of
harm to civilians.
166. The norms of non-international armed conflict should be
construed in conformity with international human rights law
governing the right to life and to humane treatment. The right to
life and to humane treatment required that when force is used, it
could only cause the least amount of foreseeable physical and
mental suffering. In this respect, they referred, among other
authorities, to the Court's finding in {Gulec} v. Turkey that
States should make non-lethal weapons available to their forces
for use against mixed targets (see {Gulec} v. Turkey judgment of
27 July 1998, Reports 1998-IV).
167. The submission argued that the law of non-international
armed conflicts as construed by international human rights law
established a three-part test. First, armed attacks on mixed
combatant/civilian targets were lawful only if there was no
alternative to using force for obtaining a lawful objective.
Second, if such use of force was absolutely necessary, the means
or method of force employed could only cause the least amount of
foreseeable physical and mental suffering. Armed forces should be
used for the neutralisation or deterrence of hostile force, which
could take place by surrender, arrest, withdrawal or isolation of
enemy combatants - not only by killing and wounding. This rule
required that States made available non-lethal weapons
technologies to their military personnel. Furthermore, the
authorities should refrain from attacking until other non-lethal
alternatives could be implemented. Third, if such a means or
method of using force did not achieve any of its lawful
objectives, then force could be incrementally escalated to achieve
them.
2. The Court's assessment
a) General principles
168. Article 2, which safeguards the right to life and sets out
the circumstances where deprivation of life may be justified,
ranks as one of the most fundamental provisions in the Convention,
from which in peacetime no derogation is permitted under Article
15. Together with Article 3, it also enshrines one of the basic
values of the democratic societies making up the Council of
Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed. The object and
purpose of the Convention as an instrument for the protection of
individual human beings also requires that Article 2 be
interpreted and applied so as to make its safeguards practical and
effective.
169. Article 2 covers not only intentional killing but also the
situations where it is permitted to "use force" which may result,
as an unintended outcome, in the deprivation of life. The
deliberate or intended use of lethal force is, however, only one
factor to be taken into account in assessing its necessity. Any
use of force must be no more than "absolutely necessary" for the
achievement of one or more of the purposes set out in sub-
paragraphs (a) to (c). This term indicates that a stricter and
more compelling test of necessity must be employed than that
normally applicable when determining whether State action is
"necessary in a democratic society" under paragraphs 2 of Articles
8 to 11 of the Convention. Consequently, the force used must be
strictly proportionate to the achievement of the permitted aims.
170. In the light of the importance of the protection afforded
by Article 2, the Court must subject deprivations of life to the
most careful scrutiny, taking into consideration not only the
actions of State agents but also all the surrounding
circumstances.
171. In particular, it is necessary to examine whether the
operation was planned and controlled by the authorities so as to
minimise, to the greatest extent possible, recourse to lethal
force. The authorities must take appropriate care to ensure that
any risk to life is minimised. The Court must also examine whether
the authorities were not negligent in their choice of action (see
McCann and Others v. the United Kingdom, judgment of 27 September
1995, Series A No. 324, pp. 45 - 46, зз 146 - 50 and p. 57, з 194,
Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997,
Reports 1997-VI, pp. 2097 - 98, з 171, p. 2102, з 181, p. 2104, з
186, p. 2107, з 192 and p. 2108, з 193 and Hugh Jordan v. the
United Kingdom, No. 24746/95, зз 102 - 104, ECHR 2001-III). The
same applies to an attack where the victim survives but which,
because of the lethal force used, amounted to attempted murder
(see, mutatis mutandis, {Yasa} v. Turkey, cited above, p. 2431, з
100; Makaratzis v. Greece [GC], No. 50385/99, з 49 - 55, 20
December 2004).
172. As to the facts that are in dispute, the Court recalls its
jurisprudence confirming the standard of proof "beyond reasonable
doubt" in its assessment of evidence (Avsar v. Turkey, No.
25657/94, з 282, ECHR 2001). Such proof may follow from the
coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. In this
context, the conduct of the parties when evidence is being
obtained has to be taken into account (Ireland v. the United
Kingdom judgment of 18 January 1978, Series A No. 25, p. 65, з
161).
173. The Court is sensitive to the subsidiary nature of its
role and recognises that it must be cautious in taking on the role
of a first instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), No. 28883/95, 4
April 2000). Nonetheless, where allegations are made under
Articles 2 and 3 of the Convention the Court must apply a
particularly thorough scrutiny (see, mutatis mutandis, the
Ribitsch v. Austria judgment of 4 December 1995, Series A No. 336,
з 32, and Avsar judgment, cited above, з 283) even if certain
domestic proceedings and investigations have already taken place.
b) Application in the present case
174. It is undisputed that the applicants were subjected to an
aerial missile attack, during which the first applicant's two
children were killed and the first and the second applicant were
wounded. This brings the complaint, in respect of all three
applicants, within the ambit of Article 2 (see з 171 above). The
Government suggested that the use of force was justified in the
present case under paragraph 2 (a) of Article 2 and that the harm
done was not intentional.
175. At the outset it has to be stated that the Court's ability
to make an assessment of the legitimacy of the attack, as well as
of how the operation had been planned and executed, is severely
hampered by the lack of information before it. No plan was
submitted and no information was provided as to how the operation
had been planned, what assessment of the perceived threats and
constraints had been made, or what other weapons or tactics had
been at the pilots' disposal when faced with the ground attack the
Government refer to. Most notably, there was no reference to
assessing and preventing possible harm to the civilians who might
have been present on the road or elsewhere in the vicinity of what
the military could have perceived as legitimate targets.
176. The Court further notes that the document submitted by the
Government in October 2004 refers to a number of new evidence,
which have not been submitted to the Court (see зз 90 - 97 above).
Several undated documents on which the conclusions of that
document are based appear inconsistent with other evidence present
in the case-file. No explanation was submitted as to why such
important evidence as the testimonies of the technicians and the
examination of the planes have not been collected earlier, nor as
to why the pilots' statements cited in it appear to be in
contradiction with their other, presumably earlier, statements. It
is not clear why this document, issued in May 2004, was only
submitted to the Court and to the other party in October 2004. The
Court will therefore rely on its contents with caution.
177. Bearing this in mind, the documents submitted by the
parties and the investigation file nevertheless allow the Court to
draw certain conclusions as to whether the operation was planned
and conducted in such a way as to avoid or minimise, to the
greatest extent possible, damage to civilians.
178. The Court accepts that the situation that existed in
Chechnya at the relevant time called for exceptional measures on
behalf of the State in order to regain control over the Republic
and to suppress the illegal armed insurgency. These measures could
presumably include employment of military aviation equipped with
heavy combat weapons. The Court is also prepared to accept that if
the planes were attacked by illegal armed groups, that could have
justified use of lethal force, thus falling within paragraph 2 of
Article 2.
179. However, in the present case, the Government failed to
produce convincing evidence which would have supported such
findings. The testimonies submitted by the two pilots and the air
traffic controller are the only mention of such an attack (see зз
79 - 85 above). These testimonies were collected in October and
December 2000, i.e. over a year after the attack. They are
incomplete and refer to other statements made by these witnesses
during the course of the investigation, which the Government
failed to disclose. They are made in almost identical terms and
contain a very brief and incomplete account of the events. Their
statements quoted in the document of 5 May 2004 submit a somewhat
different account of the circumstances of the attack at the planes
from the trucks, the height from which the pilots fired at the
first truck and the presence of other vehicles on the road (see зз
90 - 97). In the absence of all the pilots' statements and lack of
explanation of the obvious inconsistencies contained in them the
Court puts into question the credibility of their statements.
180. The Government failed to submit any other evidence that
could be relevant to legitimise the attack, including the exact
nature of the pilots' mission and evaluation of the perceived
threats and constraints, an account of the pilots' debriefing upon
return, mission reports or relevant explanations which they
presumably had to submit concerning the discharged missiles and
the results of their attack, a description or names of the
fighters presumably killed in the attack etc. The decision of 5
May 2004 refers to a description of the damage caused to the
planes by the hostile fire and statements of the technicians.
These documents were not submitted to the Court, and the Court
retains doubts as to the credibility of evidence disclosed four
and a half years after the events in question (see з 176 above).
Further, none of the other witnesses whose statements were
produced mentioned seeing the Kamaz trucks from which the planes
would be attacked or the presence of armed persons in the convoy
at all. An investigation of the site of the attack, conducted in
August 2000, found remains of the Red Cross Mercedes truck. No
remains of a Kamaz truck were reported (see з 63 above). The only
non-military witness who reported seeing armed men on the road to
Grozny on 29 October 1999 referred to a UAZ all-terrain vehicle in
the Samashki forest, but not to a Kamaz truck (see з 71 above).
181. On the basis of the Government's submissions and
admissions, the military were responsible for a military operation
which resulted in the losses suffered by the applicants. The
Government claim that the aim of the operation was to protect
persons from unlawful violence within the meaning of Article 2 з 2
(a) of the Convention. In the absence of corroborated evidence
that any unlawful violence was threatened or likely, the Court
retains certain doubts as to whether the aim can at all be said to
be applicable. However, given the context of the conflict in
Chechnya at the relevant time, the Court will assume in the
following paragraphs that the military reasonably considered that
there was an attack or a risk of attack from illegal insurgents,
and that the air strike was a legitimate response to that attack.
182. Thus, assuming that the use of force could be said to have
pursued the purpose set out in paragraph 2 (a) of Article 2, the
Court will consider whether such actions were no more than
absolutely necessary for achieving that purpose. The Court will
therefore proceed to examine, on the basis of the information
submitted by the parties and in view of the above enumerated
principles (see зз 168 - 173 above), whether the planning and
conduct of the operation were consistent with Article 2 of the
Convention.
183. The applicants, Red Cross workers and other witnesses to
the attack unanimously testified about being aware in advance of
the "safe passage" or "humanitarian corridor" to Ingushetia for
the Grozny residents on 29 October 1999. This exit was prepared
and foreseen by the residents fleeing from heavy fighting. They
collected their belongings and arranged for transportation in
advance, and started early in the morning of 29 October 1999 in
order to reach safety. The first and second applicants and their
families arranged for a minivan with a driver. They submitted that
on 28 October 1999 they attempted to cross the administrative
border, but the military at the roadblock ordered them to return
the next day. The third applicant and her family had been waiting
since 26 October 1999 for the announced "safe exit" in the village
of Gekhi, because the shelling of Grozny had become too severe
(see зз 14 - 16 above). Ms Burdynyuk and her husband were aware of
the "corridor" and ordered in advance a truck from a transport
agency to take them and their household items out (see з 55
above). The Red Cross workers testified that they planned the
evacuation of the offices for 29 October 1999 to benefit from the
announced "safe passage", of which they had informed their
headquarters in Nalchik and obtained a permit to travel from the
local rebel commander (see зз 46 - 48 above).
184. The presence of a substantial number of civilian cars and
thousands of people on the road on that day is further confirmed
by the statements of the applicants and the statements by the Red
Cross workers and other witnesses, who testified that there had
been a line of cars several kilometres long. The Government in
their submission of 28 March 2003 explained that on 29 October
1999 the roadblock "Kavkaz-1" on the administrative border between
Chechnya and Ingushetia had been closed, because it could not cope
with the substantial amount of refugees wishing to cross (see з 26
above).
185. The applicants and the Red Cross workers refer to an order
from a senior military officer at the roadblock to clear the road
and to return to Grozny, which came at round 11 a.m. It appears
that the civilians in the convoy were fearful for their safety on
the return journey, and they referred to assurances of security
given by that senior officer (see зз 17 and 48 above). As the
applicants and other witnesses submit, the order to return caused
a traffic jam on the road, filled with cars, buses and trucks.
Some had to wait as long as about an hour to be able to start
moving and the progress was very slow, at least initially (see зз
17, 18 and 48 above).
186. All this should have been known to the authorities who
were planning military operations on 29 October 1999 anywhere near
the Rostov-Baku highway and should have alerted them to the need
for extreme caution as regards the use of lethal force.
187. It transpires from the testimony given by the air
controller identified as "Sidorov" that he was given the mission
order for 29 October 1999 on the previous evening. The mission was
to prevent movement of heavy vehicles towards Grozny in order to
cut supplies to the insurgents defending the city. Neither he,
nor, apparently, the pilots had been informed of the announcements
of a "safe passage" for that day, of which the civilians were
keenly aware. Nor had they been alerted at any moment by the
military manning the "Kavkaz-1" roadblock to the massive presence
of refugees on the road, moving towards Grozny on their orders
(see з 79 - 80 above).
188. It appears from the air controller's evidence that forward
air controllers are normally taken on board when a mission is
perceived as taking place close to federal positions. The absence
of a forward air controller on the mission of 29 October 1999
meant that, in order to receive permission to use weapons, the
pilots had to communicate with a controller at the control centre,
who could not see the road and could not be involved in any
independent evaluation of the targets.
189. All this had placed the civilians on the road, including
the applicants, at a very high risk of being perceived as suitable
targets by the military pilots.
190. The pilots in their testimonies presented to the Court
submitted that they had attacked two solitary Kamaz trucks on the
stretch of road between Shaami-Yurt and Kulary villages, which are
about 12 kilometres apart. They stated that at that time the road
was empty save for these two trucks. No questions were put to them
to explain the civilian casualties (see зз 81 -85 above). From the
document dated 5 May 2004 it appears that at some point after
March 2003 the pilots were questioned again, and submitted that
after they had fired at the first truck another truck appeared out
of the forest and drove into the impact radius of the missile (see
зз 92 - 93 above).
191. The air controller in his testimony stated that he had not
been aware of any civilian casualties until the day of the
interview, i.e. until a year after the incident (see з 79 above).
The Court finds this difficult to accept, because the Red Cross
immediately communicated information about the casualties to the
relevant authorities, which had already in November 1999 started
some form of investigation of the incident. The press release from
the Russian military air force announced the destruction of a
column of trucks with fighters and ammunition on the road towards
Grozny on 29 October 1999 and denied the allegations that
civilians could have been injured by the air strikes (see з 32
above).
192. The Court finds insurmountable the discrepancy between the
two pilots' and the air controller's testimonies that the aircraft
directed their missiles at isolated trucks and the victims'
numerous submissions about the circumstances of the attack. The
Government explained the casualties by submitting that in the very
short time between firing of the missiles at the trucks and the
moment they hit them, the convoy, previously unseen by the pilots,
appeared on the road and was affected due to the wide impact
radius of the missiles used. The Court does not accept this
reasoning, which does not begin to explain the sudden appearance
of such a large number of vehicles and persons on the road at the
time. Moreover, the Government's contentions are contradicted by a
substantial mass of other evidence presented to the Court.
193. First, it follows from the witnesses' accounts that
several vehicles in the convoy were directly hit by the explosions
- the Mercedes truck used by the Red Cross, the cabin of which had
been destroyed, the PAZ bus and a Kamaz truck filled with
refugees. The third applicant submits that her GAZ car with
possessions was destroyed by a direct hit. This excludes
accidental damage by shrapnel due to a large impact radius.
194. Second, the applicants, the Red Cross workers and other
witnesses submitted that the attacks were not momentaneous, but
lasted for several hours, possibly as many as four. The pilots and
the air controller gave the timing of the first attack as about
2.05 - 2.15 p.m., but they failed to indicate, even approximately,
the timing of the second attack. In their submissions on the
admissibility of the applications, the Government indicated the
timing of the attack as 2.05 - 2.20 p.m. and 3.30 - 3.35 p.m. (see
з 28). Assuming that the initial missile was fired about 2 p.m. at
what the pilots had perceived as a "solitary" vehicle on an
otherwise empty road, further launches, which took place at least
an hour and a half later, could not have failed to take into
account other vehicles. It is established that, during that quite
significant stretch of time, the pilots made several passes over
the road, descending and ascending from 200 to 2000 metres. They
had the benefit of good visibility conditions and thus could not
have failed to see the numerous cars on the road. The air force
press release, issued soon after the events, spoke of a "column of
trucks with fighters and ammunition" and not of two solitary
vehicles (see з 32 above).
195. The military used an extremely powerful weapon for
whatever aims they were trying to achieve. According to the
conclusions of the domestic investigation, 12 S-24 non-guided air-
to-ground missiles were fired, six by each plane, which is a full
load. On explosion, each missile creates several thousand pieces
of shrapnel and its impact radius exceeds 300 metres (or 600 - 800
metres, as suggested by some documents - see зз 30 and 88 above).
There were thus several explosions on a relatively short stretch
of the road filled with vehicles. Anyone who had been on the road
at that time would have been in mortal danger.
196. The question of the exact number of casualties remains
open, but there is enough evidence before the Court to suggest
that in these circumstances it could be significantly higher than
the figures reached by the domestic investigation. The Court also
bears in mind the report produced by Human Rights Watch concerning
this and other incidents where civilians were attacked when
fleeing from fighting. The Court does not find any difference
between the situations of the three applicants in view of the
level of danger to which they were exposed.
197. The question of the apparent disproportionality in the
weapons used was also raised by the Bataysk Garrison Court in its
decision of 14 March 2003, by which the decision to close the
investigation was quashed and a new investigation ordered.
198. In addition, the fact that the Government failed to invoke
the provisions of domestic legislation at any level which would
govern the use of force by the army or security forces in
situations such as the present one, while not in itself sufficient
to decide on a violation of the positive obligation of the State
to protect the right to life, in the circumstances of the present
case is also directly relevant to the proportionality of the
response to the alleged attack (see, mutatis mutandis, the above-
mentioned McCann judgment, з 156).
199. To sum up, even assuming that that the military were
pursuing a legitimate aim in launching 12 S-24 non-guided air-to-
ground missiles on 29 October 1999, the Court does not accept that
the operation near the village of Shaami-Yurt was planned and
executed with the requisite care for the lives of the civilian
population.
200. The Court finds that there has been a violation of Article
2 of the Convention in respect of the responding State's
obligation to protect the right to life of the three applicants
and of the two children of the first applicant, Ilona Isayeva and
Said-Magomed Isayev.
B. Concerning the inadequacy of the investigation
1. Arguments of the parties
a) The applicants
201. The applicants submitted that the authorities had failed
to conduct an independent, effective and thorough investigation
into the attack.
202. In this respect the applicants submitted that the
situation which had existed in Chechnya since 1999 was
characterised by significant civil strife due to the confrontation
between the federal forces and the Chechen armed groups. They
referred to press and NGO reports which, in their view,
demonstrated that there were serious obstacles to the proper
functioning of the system for the administration of justice and
put the effectiveness of the prosecutors' work in serious doubt.
They submitted that the difficult circumstances in the Republic
did not dispense the Russian Government from their obligations
under the Convention and that the Government had failed to provide
any evidence that an investigation into abuses against civilians
was effective and adequate.
203. The applicants further submitted that they had good reason
not to apply to the prosecutors immediately after the attack,
because they felt vulnerable, powerless and apprehensive of the
State representatives. They also stated that the prosecutor's
office had inexplicably failed to act with sufficient expediency
on receiving news of the attack. The prosecutor's office knew or
should have known about the attack and about the deaths of
numerous civilians as early as 30 October 1999, when the ICRC
communicated the news of the attack to the Ministry of Interior.
In the applicants' opinion, the information from the Red Cross and
in the media concerning the destruction of medical vehicles, which
enjoy special protection under international humanitarian law and
domestic law, and the high number of casualties reported should
have prompted the prosecutors to act with special expediency and
diligence.
204. They further noted that the Nazran District Court, which
certified the deaths of the first applicant's children on 20
December 1999, should have made the information available to the
prosecutors, in accordance with Article 225 of the Civil
Procedural Code. They also pointed out that the first and second
applicants had received medical assistance in Ingushetia, and that
the medical workers were under an obligation to inform the law-
enforcement bodies of injuries that might have been related to a
crime.
205. The applicants found that despite all of the above the
prosecutors had failed to act quickly to investigate the attack.
No criminal case had been instituted until May 2000. Moreover, a
number of press statements issued by high-ranking Russian
officials, including from the air force's press centre, denied
that the attack that took place on 29 October 1999 had led to any
civilian casualties. The investigation was closed in September
2001 for lack of corpus delicti. This decision had been appealed
by another victim of the attack, Ms Burdynyuk.
206. Finally, the applicants submitted that the investigation
of the crimes had been inadequate and incomplete and could not be
regarded as effective. They referred to shortcomings in the
investigation. The applicants referred to the failure of the
authorities to contact them timely for questioning, to lack of
information about the progress of the case and of their procedural
status.
b) The Government
207. The Government denied any shortcomings in the
investigation. They referred to the decision of the Bataysk
Garrison Court of 14 March 2003, which had quashed the decision to
terminate the investigation and sent the case for further
investigation, and to the military prosecutor's decision of 5 May
2004 to close the criminal investigation for absence of corpus
delicti, which had not been appealed by the applicants.
2. The Court's assessment
a) General considerations
208. The obligation to protect the right to life under Article
2 of the Convention, read in conjunction with the State's general
duty under Article 1 of the Convention to "secure to everyone
within [its] jurisdiction the rights and freedoms defined in [the]
Convention", requires by implication that there should be some
form of effective official investigation when individuals have
been killed as a result of the use of force (see McCann and Others
v. the United Kingdom, cited above, p. 49, з 161, and Kaya v.
Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, з
86).
209. The essential purpose of such an investigation is to
secure the effective implementation of the domestic laws which
protect the right to life and, in those cases involving State
agents or bodies, to ensure their accountability for deaths
occurring under their responsibility. What form of investigation
will achieve those purposes may vary in different circumstances.
However, whatever mode is employed, the authorities must act of
their own motion once the matter has come to their attention. They
cannot leave it to the initiative of the next of kin either to
lodge a formal complaint or to take responsibility for the conduct
of any investigative procedures (see, for example, mutatis
mutandis, {Ilhan} v. Turkey [GC], No. 22277/93, з 63, ECHR 2000-
VII).
210. For an investigation into alleged unlawful killing by
State agents to be effective, it may generally be regarded as
necessary for the persons responsible for and carrying out the
investigation to be independent from those implicated in the
events (see, for example, {Gulec} v. Turkey, judgment of 27 July
1998, Reports 1998-IV, зз 81 - 82; {Ogur} v. Turkey [GC], No.
21594/93, зз 91 - 92, ECHR 1999-III). This means not only a lack
of hierarchical or institutional connection but also a practical
independence (see, for example, Ergi v. Turkey, judgment of 28
July 1998, Reports 1998-IV, зз 83 - 84, and the Northern Irish
cases, for example, McKerr v. the United Kingdom, No. 28883/95, з
128, Hugh Jordan v. the United Kingdom, cited above, з 120, and
Kelly and Others v. the United Kingdom, No. 30054/96, з 114, ECHR
2001-III).
211. The investigation must also be effective in the sense that
it is capable of leading to a determination of whether the force
used in such cases was or was not justified in the circumstances
(for example, Kaya v. Turkey, cited above, p. 324, з 87) and to
the identification and punishment of those responsible ({Ogur} v.
Turkey, cited above, з 88). This is not an obligation of result,
but of means. The authorities must have taken the reasonable steps
available to them to secure evidence concerning the incident,
including inter alia eye witness testimony, forensic evidence and,
where appropriate, an autopsy which provides a complete and
accurate record of injury and an objective analysis of clinical
findings, including the cause of death (see, for example, Salman
v. Turkey [GC], No. 21986/93, ECHR 2000-VII, з 106; Tanrikulu v.
Turkey [GC], No. 23763/94, ECHR 1999-IV, з 109; {Gul} v. Turkey,
22676/93, з 89, 14 December 2000, unreported). Any deficiency in
the investigation which undermines its ability to establish the
cause of death or the person or persons responsible will risk
falling foul of this standard (see the Northern Irish cases
concerning the inability of inquests to compel security force
witnesses directly involved in the use of lethal force to give
evidence, for example, McKerr v. the United Kingdom, cited above,
з 144, and Hugh Jordan v. the United Kingdom, cited above, з 127).
212. A requirement of promptness and reasonable expedition is
implicit in this context (see {Yasa} v. Turkey, cited above, зз
102 - 104; {Cakici} v. Turkey [GC], No. 23657/94, зз 80, 87 and
106, ECHR 1999-IV; Tanrikulu v. Turkey, cited above, з 109; Mahmut
Kaya v. Turkey, No. 22535/93, ECHR 2000-III, зз 106 - 107). While
there may be obstacles or difficulties which prevent progress in
an investigation in a particular situation, a prompt response by
the authorities in investigating a use of lethal force may
generally be regarded as essential in maintaining public
confidence in their adherence to the rule of law and in preventing
any appearance of collusion in or tolerance of unlawful acts (see,
for example, Hugh Jordan v. the United Kingdom, cited above, зз
108, 136 - 140).
213. For the same reasons, there must be a sufficient element
of public scrutiny of the investigation or its results to secure
accountability in practice as well as in theory. The degree of
public scrutiny required may well vary from case to case. In all
cases, however, the victim's next-of-kin must be involved in the
procedure to the extent necessary to safeguard his or her
legitimate interests (see {Gulec} v. Turkey, cited above, p. 1733,
з 82; {Ogur} v. Turkey, cited above, з 92; {Gul} v. Turkey, cited
above, з 93; and Northern Irish cases, for example, McKerr v. the
United Kingdom, cited above, з 148).
b) Application in the present case
214. An investigation was carried out into the attack of 29
October 1999. The Court must assess whether that investigation met
the requirements of Article 2 of the Convention.
215. The applications to the military prosecutors made
independently by the Red Cross and by Ms Burdynyuk in November and
December 1999 constituted detailed and well-founded allegations of
heavy casualties caused to civilians and an attack on cars marked
with the Red Cross sign. However, despite these very serious
allegations, supported by substantial evidence, both their
complaints were initially rejected as unsubstantiated by the
military prosecutors of military unit No. 20102 (see зз 51 and 57
above).
216. The first applicant applied to the Nazran Town Court,
which on 20 December 1999 certified the deaths of her two children
as a result of an air strike by the Russian military. The court
was obliged under domestic law to report this information to the
prosecuting bodies.
217. Despite that, a proper investigation into the complaint
submitted by the Red Cross was opened by a military prosecutor
only in May 2000. The investigation into Ms Burdynyuk's complaint
was opened and joined to the Red Cross complaint in October 2000.
The criminal investigation into the deaths of the first
applicant's children and the wounding of the first and second
applicant was opened in September 2000 by the District
Prosecutor's Office of Achkhoy-Martan, upon communication of the
complaints by the Court to the Respondent Government. It was
transferred in November 2000 to the military prosecutor's office
of military unit No. 20102 and joined to the pending
investigation.
218. There was thus a considerable delay - at least until May
2000 - before a criminal investigation was opened into credible
allegations of a very serious crime. No explanation was put
forward to explain this delay.
219. The Court notes a number of elements in the documents
submitted in the investigation file which, together, produce the
strong impression of a series of serious and unexplained failures
to act once the investigation had commenced.
220. No plan of the operation of 29 October 1999 was produced,
though it appears that it had been requested by the Achkhoy-Martan
District Prosecutor's Office in November 2000 (see з 77 above). It
also transpires from the documents contained in the case-file that
the military initially denied that any military aviation flights
had taken place in the vicinity of Shaami-Yurt on 29 October 1999.
This served as a basis to refuse to open a criminal investigation
on 27 April 2000 (see з 51 above). Additional documents to clarify
these contradictions were not requested by the investigation. It
does not appear that an operations record book, mission reports
and other relevant documents produced immediately before or after
the incident were requested or reviewed.
221. There appear to have been no efforts to establish the
identity and rank of the senior officer at the "Kavkaz-1" military
roadblock who ordered the refugees to return to Grozny and
allegedly promised them safety on the route, and to question him
or other servicemen from that roadblock.
222. Finally, and probably most importantly, no efforts were
made to collect information about the declaration of the "safe
passage" for civilians for 29 October 1999, or to identify someone
among the military or civil authorities who would be responsible
for the safety of the exit. Nothing has been done to clarify the
total absence of coordination between the public announcements of
a "safe exit" for civilians and the apparent lack of any
considerations to this effect by the military in planning and
executing their mission.
223. In the light of these omissions alone it is difficult to
imagine how the investigation could be described as efficient.
224. There are other elements of the investigation that call
for comment. The investigation did not take sufficient steps to
identify other victims and possible witnesses of the attack. While
some attempts were made to locate the first and second applicants,
it does not appear that such attempts were made in respect of the
third applicant, at least until March 2003. Also, at least until
March 2003, the applicants were not contacted directly by the
investigation, no testimonies were collected from them and no
victim status was awarded to them in accordance with the domestic
legislation. As to the Government's assertion that the
investigation was undermined by the applicants' failure to present
themselves to the authorities or to leave an address, the Court
notes that it is true that some attempts were made to locate the
first and second applicants with a view to obtaining their
statements with regard to their allegations. However, it should be
borne in mind that the applicants fled Grozny in an attempt to
escape wide-scale attacks on the city. They had no permanent
address to submit to the authorities since they were moving from
one place to another in order to find a shelter for themselves and
their families. Their feelings of vulnerability and insecurity are
also of some relevance in this connection (see, mutatis mutandis,
Mentes and Others v. Turkey, judgment of 28 November 1997, Reports
1997-VIII, p. 2707, з 59). Accordingly, the Court considers that
the personal circumstances of the applicants and the omissions and
the defects in the domestic investigation outweigh their failure
to make their addresses known to the authorities.
225. In the light of the foregoing, the Court finds that the
authorities failed to carry out an effective investigation into
the circumstances of the attack on the refugee convoy on 29
October 1999. This rendered recourse to the civil remedies equally
ineffective in the circumstances. The Court accordingly dismisses
the Government's preliminary objection and holds that there has
been a violation of Article 2 in this respect as well.
III. Alleged violation of Article 3 of the Convention
226. The first and the second applicants submitted that, as a
result of the attack, their right to freedom from inhuman and
degrading treatment within the meaning of Article 3 of the
Convention had been violated. This Article provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
227. The first and the second applicants submitted that they
were wounded by shells and witnessed the deaths of many people
around them, including their loved ones. This amounted to inhuman
treatment in the meaning of the Court's definition given in the
case of Ireland v. the United Kingdom (judgment cited above, з
167).
228. The Government did not submit any arguments on the merits
of this complaint.
229. The Court considers that the consequences described by the
applicants were a result of the use of lethal force by the State
agents in breach of Article 2 of the Convention. Having regard to
its above findings about the danger to the lives of the three
applicants as a result of the missile attacks, the Court does not
find that separate issues arise under Article 3 of the Convention.
IV. Alleged violation of Article 1 of Protocol No. 1
230. The third applicant submitted that her property had been
destroyed in violation of the provisions of Article 1 of Protocol
No. 1, which reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
231. The third applicant alleged that three cars belonging to
her, one of them filled with family possessions, had been
destroyed as a result of the air strike.
232. The Government did not contest the losses sustained by the
third applicant, nor the amount. They argued that the deprivation
of property was in compliance with the second sentence of part 1
of Article 1 of Protocol No. 1, because it was done "in the public
interest and subject to the conditions provided for by law". The
criminal investigation into the attack concluded that no crime had
been committed, and the applicant could have sought compensation
in civil proceedings.
233. The Court has found it established that the third
applicant was subjected to an aerial attack by the federal
military forces when trying to use the announced "safe exit" for
civilians fleeing heavy fighting. This attack resulted in
destruction of the vehicles and household items belonging to the
applicant and her family. There is no doubt that these acts, in
addition to giving rise to a violation of Article 2, constituted
grave and unjustified interferences with the third applicant's
peaceful enjoyment of her possessions (see also Bilgin v. Turkey,
No. 23819/94, з 108, 16 November 2000).
234. It follows that there has been a violation of Article 1 of
Protocol No. 1 in respect of the third applicant.
V. Alleged violation of Article 13
235. The applicants submitted that they had no effective
remedies in respect of the above violations, contrary to Article
13 of the Convention. This Article reads:
"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."
1. General principles
236. The Court reiterates that Article 13 of the Convention
guarantees the availability at the national level of a remedy to
enforce the substance of the Convention rights and freedoms in
whatever form they might happen to be secured in the domestic
legal order. The effect of Article 13 is thus to require the
provision of a domestic remedy to deal with the substance of an
"arguable complaint" under the Convention and to grant appropriate
relief, although Contracting States are afforded some discretion
as to the manner in which they comply with their Convention
obligations under this provision. The scope of the obligation
under Article 13 varies depending on the nature of the applicant's
complaint under the Convention. Nevertheless, the remedy required
by Article 13 must be "effective" in practice as well as in law,
in particular in the sense that its exercise must not be
unjustifiably hindered by the acts or omissions of the authorities
of the respondent State (Aksoy judgment cited above, з 95, and
Aydin v. Turkey judgment of 25 September 1997, Reports 1997-VI, з
103).
237. The scope of the obligation under Article 13 varies
depending on the nature of the applicant's complaint under the
Convention. Given the fundamental importance of the rights
guaranteed by Articles 2 and 3 of the Convention, Article 13
requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of
leading to the identification and punishment of those responsible
for the deprivation of life and infliction of treatment contrary
to Article 3, including effective access for the complainant to
the investigation procedure (see Avsar cited above з 429;
Anguelova v. Bulgaria, No. 38361/97, з 161, ECHR 2002-IV). The
Court further recalls that the requirements of Article 13 are
broader that a Contracting State's obligation under Article 2 to
conduct an effective investigation (see Orhan v. Turkey, No.
25656/94, з 384, 18 June 2002, ECHR 2002).
2. The Court's assessment
238. In view of the Court's findings above on Article 2 and
Article 1 of Protocol No. 1, these complaints are clearly
"arguable" for the purposes of Article 13 (Boyle and Rice v. the
United Kingdom judgment of 27 April 1988, Series A No. 131, з 52).
In view of this, the applicants should accordingly have been able
to avail themselves of effective and practical remedies capable of
leading to the identification and punishment of those responsible
and to an award of compensation, for the purposes of Article 13,
at least as regards the claims under Article 2.
239. However, in circumstances where - as here - the criminal
investigation into the circumstances of the attack was ineffective
in that it lacked sufficient objectivity and thoroughness (see зз
214 - 225 above); and since the effectiveness of any other remedy
that may have existed, including the civil remedies suggested by
the Government, was consequently undermined, the Court finds that
the State has failed in its obligation under Article 13 of the
Convention, which are broader then those under Article 2.
240. Consequently, there has been a violation of Article 13 of
the Convention.
VI. Application of Article 41 of the Convention
241. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Pecuniary Damage
242. The third applicant alleged that three cars belonging to
her, one of them filled with family possessions, had been
destroyed as a result of the air strike. This caused her a loss to
a total value of 107,760 US dollars.
243. The Government did not submit any comments on the amount
of the losses.
244. The Court recalls that it has been established that the
property of the third applicant, namely the cars and household
items were destroyed as a result of the air strikes. This would
undoubtedly have entailed some considerable losses for the
applicant.
245. The Court notes that in her initial submissions the
applicant mentioned that two cars, a GAZ with family possessions
and a Niva, had been destroyed. In her final submissions to the
Court, she claimed that the third vehicle, a Zhiguli car, was also
destroyed. The Court further remarks that the applicant did not
initially mention the presence of a substantial amount of cash in
US dollars (48,000), or jewellery to the value of 8,770 US
dollars, purportedly contained in one of the cars. Nor did she
submit any further explanations or evidence related to the alleged
losses.
246. In the absence of any independent and conclusive evidence
as to the applicant's claims for the lost property and on the
basis of the principles of equity, the Court awards an amount of
12,000 euros (EUR) to the third applicant as compensation for the
sustained pecuniary losses.
B. Non-pecuniary damage
247. The first applicant's son Said-Magomad and daughter Ilona
were killed as result of the attack. Her other relatives were
killed or wounded. She was wounded and received treatment. She
claimed EUR 25,000 as non-pecuniary damages.
248. The second applicant was wounded and lost consciousness as
a result of the attack. She was deeply traumatised by the
experience. She asked the Court to award her EUR 15,000 as non-
pecuniary damages.
249. The third applicant lost her property and suffered anguish
and fear as a victim of the attack. She claimed EUR 5,000 as non-
pecuniary damages.
250. The Government found the amounts claimed to be
exaggerated.
251. The Court considers that awards should be made in respect
of non-pecuniary damage bearing in mind the seriousness of the
violations it has found in respect of Articles 2, 13 and Article 1
of Protocol No. 1.
252. The Court notes the modest nature of the requests for non-
pecuniary damage made by the applicants and awards EUR 25,000 to
the first applicant, EUR 15,000 to the second applicant and EUR
5,000 to the third applicant as non-pecuniary damage. The awards
to the first and the second applicants are to be converted into
Russian roubles at the rate applicable at the date of payment.
C. Costs and expenses
253. The applicants claimed EUR 8,960 and 1,605 pounds sterling
(GBP) for fees and costs involved in bringing the applications.
This included GBP 1,605 for the work of the London-based lawyers
from the European Human Rights Advocacy Centre; EUR 3,750 for the
work of the Moscow-based lawyers from the Human Rights Centre
Memorial and EUR 5,210 for the work by the Memorial human rights
field staff in Moscow and in the Northern Caucasus connected with
the case and for other expenses incurred.
254. In addition, the applicants claimed GBP 2,608 for costs
and fees involved in respect of the preparation for, and conduct
of the hearing on the merits. This included GBP 2,300 for the work
of the London-based lawyers from the European Human Rights
Advocacy Centre and GBP 308 for the work of the Moscow-based
lawyer.
255. The Government did not submit any comments on the amount
or substantiation of the claims under this heading.
256. The Court observes that only legal costs and expenses
necessarily and actually incurred and which are reasonable as to
quantum can be reimbursed pursuant to Article 41 of the
Convention. It notes that this case involved complex issues of
fact and law and gave rise to two sets of written observations and
an adversarial hearing. However, it considers excessive the total
amount which the applicants claim in respect of their legal costs
and expenses and considers that it has not been demonstrated that
all of them were necessarily and reasonably incurred. In
particular, the Court finds excessive the amount of legal work
claimed by the applicants in the course of the preparation for the
hearing in view of the extensive written submissions already
submitted by parties.
257. In these circumstances, the Court is unable to award the
totality of the amount claimed; deciding on an equitable basis and
having regard to the details of the claims submitted by the
applicants, it awards them the sum of EUR 12,000, less the EUR
1,074 received by way of legal aid from the Council of Europe,
together with any value-added tax that may be chargeable.
D. Default interest
258. The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a violation of Article 2 of the
Convention in respect of the respondent State's obligation to
protect the right to life of the three applicants and of the two
children of the first applicant;
3. Holds that there has been a violation of Article 2 of the
Convention in that the authorities failed to carry out an adequate
and effective investigation into the circumstances of the attack
of 29 October 1999;
4. Holds that no separate issue arises in respect of Article 3
of the Convention;
5. Holds that there has been a violation of Article 1 of
Protocol No. 1 of the Convention in respect of the third
applicant;
6. Holds that there has been a violation of Article 13 of the
Convention;
7. Holds
(a) that the respondent State is to pay the applicants, within
three months from the date on which the judgment becomes final
according to Article 44 з 2 of the Convention, the following
amounts:
(i) EUR 12,000 (twelve thousand euros) to the third
applicant in respect of pecuniary damage;
(ii) EUR 5,000 (five thousand euros) to the third
applicant in respect of non-pecuniary damage;
(iii) EUR 25,000 (twenty-five thousand euros) to the first
applicant and EUR 15,000 (fifteen thousand euros) to the
second applicant in respect of non-pecuniary damage, both sums
to be converted into Russian roubles at the rate applicable at
the date of the settlement;
(iv) EUR 10,926 (ten thousand nine hundred twenty-six
euros) in respect of costs and expenses, to be converted into
Russian roubles at the rate applicable at the date of the
settlement in respect of costs and expenses;
(v) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three
percentage points.
Done in English, and notified in writing on 24 February 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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