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Законодательство Российской Федерации

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(по состоянию на 20 октября 2006 года)

<<< Назад

                         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
       Delivers the following judgment, which was adopted on the last-
   mentioned date:
       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
       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
       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
       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
       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
       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
                        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
       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
       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
       "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
       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
       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
       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
       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
       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
       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
       "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
       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
       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
       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
       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
       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
       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
       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
       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
       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
       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
       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
                       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
       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
       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
       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
       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
       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
       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
       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
       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
       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
       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
       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-
       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
       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
       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
       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
       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
       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
       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
       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
       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
       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
       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
       6.  Holds that there has been a violation of Article 13 of  the
       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
           (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
                                                       {Soren} NIELSEN

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