CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 novembre 2008

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margin-bottom:0pt } .sCC2FB930 { width:203.86pt; display:inline-block } .s9269B87C { width:9.86pt; display:inline-block } .s4CF91B54 { width:241.01pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 38450/05 by Kelimat Akhmatovna Sabanchiyeva and Others against Russia The European Court of Human Rights (First Section), sitting on 6   November 2008 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having regard to the above application lodged on 26 October 2006, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants are 50 Russian nationals who live in the Republic of Kabardino-Balkaria and, unless stated otherwise, residents of the town of Nalchik. They are: (1)     Mrs Kelimat Akhmatovna Sabanchiyeva, who was born in 1961, and whose complaint concerns the death of her son Mr Khadjimurat Kurbanovich Kurbanov, who was born on 25 October 1984; (2)     Mr Khusen Leonidovich Shibzukhov, born in 1949, referring to the death of his son Mr Anzor Khusenovich Shibzukhov, born on 23   June 1984; (3)     Mr Anatoliy Narychevich Bitokov, born in 1947, referring to the death of his son Mr Murat Anatolyevich Bitokov, born on 22   September 1980; (4)     Mrs Raya Bilyalevna Chechenova, born in 1952, referring to the death of her son Mr Stanislav Borisovich Chechenov, born on 1   December 1973; (5)     Mrs Larisa Saradinovna Alakayeva, born in 1957, referring to the death of her son Mr Saradin Khautiyevich Alakayev, born on 13   September 1980; (6)     Mr Barasbi Khudovich Boziyev, born in 1947 and lives in the village of Ardugan and referring to the death of his son Mr Sosruko Barasbiyevich Boziyev, born on 17 February 1977; (7)     Mr Yuriy Natribovich Khagov, born in 1937, living in the village of Terek and referring to the death of his son Mr Zalim Yurievich Khagov, born on 11 August 1968; (8)     Mrs Raisa Albiyanovna Mamresheva, born in 1951, living in the village of Terek and referring to the death of her son Mr Vyacheslav Borisovich Shoghemov, born on 20 September 1975; (9)     Mrs Anzhelika Yuryevna Arkhestova, born in 1970, referring to the death of her brother Mr Anzor Yurievich Kertbiyev, born on 13   April   1974; (10)     Mrs Fatimat Khazritovna Tkhagalegova, born in 1963, living in the village of Nartan and referring to the death of her brother Anzor Khazritovich Bichoyev, born on 18 August 1972; (11)     Mrs Rita Ramazanovna Dzantuyeva, born in 1959, referring to the death of her son Mr Alexandr Lenovich Bashloyev, born on 29   December 1980; (12)     Mrs Fatima Amerkhanovna Mamayeva, born in 1973, referring to the death of her husband Mr Timur Makhtyevich Mamayev, born on 22   September 1972; (13)     Mrs Yelena Khabidovna Karmova, born in 1952, referring to the death of her son Mr Martin Nikolayevich Karmov, born on 19   February 1972; (14)     Mrs Alesya Khazritovna Shidakova, born in 1955, living in the village of Inarkoy and referring to the death of her son Mr   Dzhambulat Khamishevich Shidakov, born on 6 November 1978; (15)     Mr Timofey Alesovich Nabitov, born in 1942, referring to the death of his sons, Mr Azamat Timofeyevich Nabitov, born on 20   December 1979, and Mr Djambulat Timofeyevich Nabitov, born on 9 January 1982; (16)     Mrs Raisa Shamgunovna Keresheva, born in 1956, referring to the death of her sons, Mr Rustam Ruslanovich Kereshev, born on 4   December 1979, and Mr Anzor Ruslanovich Kereshev, born on 16   March 1984; (17)     Mr Betal Muradinovich Kerefov, born in 1946, referring to the death of his son Mr Kazbulat Betalovich Kerefov, born on 15 May 1980; (18)     Mr Magomed Khasymovich Attoyev, born in 1941, referring to the death of his son Mr Murat Magomedovich Attoyev, born on 27   April 1978; (19)     Mrs Zhanna Fedorovna Ifraimova, born in 1968, referring to the death of Mr Ruslan Borisovich Tamazov, born on 31   March 1980; (20)     Mrs Aysha Ismailovna Chagiran, born in 1952, referring to the death of her son Mr Djambulat Muhamedovich Bittirov, born on 1   April   1985; (21)     Mr Aserbi Lanovich Makoyev, born in 1956, referring to the death of his son Mr Murat Aserbiyevich Makoyev, born on 1 June 1981; (22)     Mr Sait Mukhamedovich Bashora, born in 1949, referring to the death of his son Mr Ruslan Saitovich Tishkov, born on 1 August 1980; (23)     Mrs Taya Alekseyevna Khavzhokova, born in 1958, living in the village of Nartan and referring to the death of her son Mr Alim Khataliyevich Khavzhokov, born on 8 September 1979; (24)     Mr Kunak Ismailovich Guziyev, born in 1944, referring to the death of his son Mr Ramazan Konakovich Guziyev, born on 26   September   1975; (25)     Mr Amerbi Yakhiyaevich Afov, born in 1937, referring to the death of his son Mr Zaur Amerbiyevich Afov, born on 3 April 1975; (26)     Mrs Yulia Anurdinovna Khagabanova, born in 1982, referring to the death of her brother Mr Edik Rasimovich Abidokov, born on 23   March 1973; (27)     Mrs Lidiya Zhambulatovna Zhelikhazheva, born in 1942, referring to the death of her son Mr Alim Sultanovich Zhelikhazhev, born on 23   March   1976; (28)     Mr Tengiz Valeryevich Mokayev, born in 1987, referring to the death of his brother Mr Alexandr Valeriyevich Mokayev, born on 17   July   1978; (29)     Mrs Emma Auzinovna Sherdiyeva, born in 1963, referring to the death of her son Mr Rustam Ruslanovich Nafedzov, born on 13   January   1981; this applicant died on 26 August 2006 and the deceased’s widow, Ms Zhanneta Khamidbiyevna Khazhbiyeva, born on 3 December 1982, decided to pursue the application; (30)     Mrs Zhanetta Martinovna Kushkhova, born in 1944, referring to the death of her son Mr Zaurbek Huseynovich Kushkhov, born on 25   November   1977; (31)     Mr Khazret-Ali Islamovich Khalilov, born in 1950, referring to the death of his son Mr Murat Khazret-Alievich Khalilov, born on 9   January 1981; this applicant died on 25 December 2006 and the deceased’s widow, Ms Zyuzanna Khazretovna Khalilova, born on 29 April 1983, decided to pursue the application; (32)     Mr Ladin Khazhisetovich Gendukov, born in 1955 and living in the village of Altud, referring to the death of his son Mr Roman Ladinovich Gendukov, born on 3 October 1981; (33)     Mr Vladimir Khazeshevich Vorokov, born in 1946, referring to the death of his son Mr Azamat Vladimirovich Vorokov, born on 22   April 1978; (34)     Mr Murat Yuryevich Pshikhachev, born in 1974, referring to the death of his brother Mr Muslim Yurievich Pshikhachev, born on 16   February 1976; (35)     Mr Fedor Aliyevich Abidov, born in 1957, referring to the death of his son Mr Zaurbek Fedorovich Abidov, born on 9 June 1983; (36)     Mr Liuan Mukhazhirovich Kardanov, born in 1952 and living in the village of Urvani, referring to the death of his son Mr Mukharbi Liuyanovich Kardanov, born on 11 December 1979; (37)     Mr Atabi Sakhatgeriyevich Kardanov, born in 1948, referring to the death of his son Mr Oleg Atabiyevich Kardanov, born on 16   November   1981; (38)     Mrs Rita Aslamurzovna Anzorova, born in 1960 and living in the town of Nartkala, referring to the death of her son Mr Artur Khasanovich Ezdekov, born on 14 September 1979; (39)     Mr Karalbi Masadovich Amshokov, born in 1933, referring to the death of his son Mr Akhmed Karalbiyevich Amshokov, born on 13   May   1977; (40)     Mr Boris Betalovich Kuchmenov, born in 1942, referring to the death of his son Mr Anzor Borisovich Kuchmenov, born on 19 November 1973; (41)     Mrs Aminat Umarovna Psanukova, born in 1949, referring to the death of her son Mr Zaur Isufovich Psanukov, born on 10   September   1977; (42)     Mrs Fatima Nakhupshovna Arkhagova, born in 1951, referring to the death of her son Mr Aslan Karalbiyevich Arkhagov, born on 30   January 1979; (43)     Mr Khuseyn Hazhmuratovich Atalikov, born in 1952, referring to the death of his son Mr Islam Khuseynovich Atalikov, born on 15   October   1982; (44)     Mrs Lyubov Mikhaylovna Gonibova, born in 1952, referring to the death of her son Mr Akhmed Khasanbiyevich Gonibov, born on 3   September 1985; (45)     Mrs Zoya Ibragimovna Afaunova, born in 1955, referring to the death of her son Mr Gisa Musovich Afaunov, born on 1   January   1975; (46)     Mrs Fatimat Abubachirovna Erzhibova, born in 1956, referring to the death of her son Mr Beslan Leonidovich Erzhibov, born on 17   July   1983; (47)     Mrs Fatima Khursanovna Gudova, born in 1959, referring to the death of her son Mr Ruslan Aslanbiyevich Gudov, born on 7   January   1980; (48)     Mr Oksana Nikolayevna Daova, born in 1977, referring to the death of her brother Mr Valeriy Nikolayevich Tleuzhev, born on 22 July 1975, and her husband Mr Zurab Nazranovich Daov, born on 18   March   1972; (49)     Mr Zaur Mukhamedovich Terkulov, born in 1981, referring to the death of his brother Mr Eldar Mukhamedovich Terkulov, born on 1   May 1983; (50)     Mr Boris Zaudinovich Bagov, born on an unspecified date and referring to the death of his nephews Mr Anzor Yuriyevich Bagov, Mr Zaur Yuriyevich Bagov and Mr Aslan Yuriyevich Bagov, born on 12 September 1977 and in 1979 and 1987 respectively. The applicants are represented before the Court by Mrs D. I. Straisteanu, Mrs N. Maltseva, Mrs E. Yezhova and Mr A. Nikolayev, lawyers from Stichting Russian Justice Initiative, Moscow, and Mrs L. Dorgova, a lawyer practising in the town of Nalchik. The Russian Government (“the Government”) were represented by Mr   P.   Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The family links of the applicants and the deceased The applicants submitted that they were relatives of the people who died in the events at Nalchik on 13 and 14 October 2005 or shortly afterwards. The Government did not dispute this with the exception of the nineteenth applicant, Mrs Zhanna Fedorovna Ifraimova, who, in their view, was not in any way related to the deceased Mr Ruslan Borisovich Tamazov. According to the nineteenth applicant’s initial statement, the deceased Mr Ruslan Borisovich Tamazov was her husband. She later changed this submission by stating that they were not officially married, but had lived together since February 2005. At the time of the events in October 2005 she was eight months pregnant (presumably by Mr Tamazov). 2.     The attack of 13 October 2005 and subsequent events Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, including the Republican Department of the Ministry of the Interior, Centre T of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties, the office of the Border Guard Service of the Federal Security Service as well as a few privately owned weapon shops, were attacked by a number of heavily armed people, who appear to have been local insurgents. According to the Government, there were over 250   participants in the attack. The ensuing fight between the governmental forces and the insurgents lasted at least until 14 October 2005. According to the information initially provided by the Government, on 13 and 14 October 2005 its forces successfully repelled the attack and killed eighty-seven local insurgents. The Government did not specify the names of those killed. The Government also stated that on 14 October 2005 they had arrested Mr Aslan Yuriyevich Bagov (one of the two nephews of the fiftieth applicant), who had gunshot wounds to the head and chest. He had died in prison on 23 October 2005. On 18 October 2005 Mr Kerefov Kazbulat Betalovich (one of the seventeenth applicant’s sons and a participant in the attack on 13 ‑ 14   October 2005) had fired shots at police officers manning a local checkpoint and was killed when the officers returned fire. In their observations on admissibility of the case, the Government stated that in the antiterrorist operations mounted in response to the attack of 13   October 2005 the authorities had killed a total of 95 insurgents. In essence, they admitted that all the deceased referred to by the applicants were among those killed by the authorities. 3.     Criminal case no. 25/78-05 (a)     Decision to initiate proceedings of 13 October 2005 It would appear that on 13 October 2005 the authorities instituted criminal proceedings no. 25/78-05 in connection with the attack (in accordance with Article 209, part 3 of Article 205, Article 317, part 2 sub-paragraphs “e” and “z” of Article 105 of the Criminal Code). In the course of the investigation it was established that between 1999   and February 2005 a group of individuals including Aslan Maskhadov, Shamil Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and Abu-Dzeit had formed a terrorist group. It was this group which organised the attack. 35 law-enforcement officers and 15 civilians were killed, whilst 131 law enforcement-officers and 92 civilians were injured. Massive damage was done to property. The applicants did not have any formal status in the proceedings in case no. 25/78-05. (b)     The applicants’ letters to the authorities in the initial stages of the investigation Immediately following the attack, on 13, 20, 21 and 25 October 2005 an unspecified number of people (including, it would seem, applicants in the instant case) signed collective petitions requesting various officials, including the prosecutors, to return the bodies for burial. Between the end of October 2005 and until at least April 2006 the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation of the events was over. Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful, as they were rejected as premature both at first instance and on appeal. (c)     Decisions not to prosecute insurgents killed in the attack On 13 April 2006 the investigation authority terminated the proceedings in respect of the 95 deceased because of their deaths. It appears that the deceased referred to by the applicants were among those concerned by this decision. The Prosecutor General’s Office notified the applicants concerned of the above decisions on 14 April 2006. It appears that no copies of the decisions in question were attached to the notification. Some of the applicants (see the table below) applied to the domestic courts in connection with the authorities’ failure to deliver them copies of the decisions of 13 April 2006. It would appear that as a result of the proceedings the applicants in question were furnished with a copy of the relevant decision and afforded access to certain procedural documents from the case-file (medical expert reports, the decisions to discontinue the criminal proceedings). However, they were refused standing to take part in the proceedings as the official representatives of the deceased or to have the deceased’s personal belongings returned to them. Thereafter some applicants brought court proceedings contesting the decisions of 13 April 2006. In most of the cases (apart from those of the thirty-sixth and forty-eighth applicants, who were unsuccessful), the outcome of the proceedings is unclear (see the table below). As regards the thirty-sixth and forty-eighth applicants, the domestic courts examined their complaints at two levels of jurisdiction and, having noted that the investigators had reached reasoned and well-supported conclusions regarding the involvement of the applicants’ relatives in the terrorist attack, rejected the complaints as unfounded. On each occasion the courts effectively reviewed the factual conclusions made by the investigators and carried out a critical assessment of the underlying evidence.   No. The applicants Proceedings to obtain copies of the decisions of 13/04/2006 Whether copy received (Y/N) Proceedings contesting the decisions of 13/04/2006 1st instance Appeal instance 1st instance Appeal Outcome 1 Mrs Kelimat Akhmatovna Sabanchiyeva Did not claim a copy No Did not pursue any proceedings 2 Mr Khusen Leonidovich Shibzukhov 3 Mr Anatoliy Narychevich Bitokov 4 Mrs Raya Bilyalevna Chechenova 5 Mrs Larisa Saradinovna Alakayeva 6/06/2006 29/08/2006 Yes 5/06/2007 (complaint accepted) No information Unclear 6 Mr Barasbi Khudovich Boziyev No information on proceedings, but the applicant did receive a copy Yes 23/3/2007 (complaint rejected) No information Unclear 7 Mr Yuriy Natribovich Khagov Did not claim a copy No Did not pursue any proceedings 8 Mrs Raisa Albiyanovna Mamresheva 9 Mrs Anzhelika Yuryevna Arkhestova 7/06/2006 29/08/2006 Yes 19/03/2007 (complaint rejected) No information Unclear 10 Mrs Fatimat Khazritovna Tkhagalegova 16/08/2006 29/09/2006 Yes 5/06/2007 (complaint accepted) No information Unclear 11 Mrs Rita Ramazanovna Dzantuyeva 27/12/2006 No information on appeal proceedings Yes 27/03/2007 (complaint rejected) No information Unclear 12 Mrs Fatima Amerkhanovna Mamayeva 29/11/2006 23/01/2007 Yes Did not pursue any proceedings 13 Mrs Yelena Khabidovna Karmova No information on proceedings, but the applicant did receive a copy Yes 25/07/2007 (complaint accepted) No information Unclear 14 Mrs Alesya Khazritovna Shidakova Did not claim a copy No Did not pursue any proceedings 15 Mr Timofey Alesovich Nabitov 21/09/2006 10/11/2006 Yes 16 Mrs Raisa Shamgunovna Keresheva 6/06/2006 No information on appeal proceedings Yes 5/03/2007 (complaint accepted) No information Unclear 17 Mr Betal Muradinovich Kerefov Did not claim a copy No Did not pursue any proceedings 18 Mr Magomed Khasymovich Attoyev 19 Mrs Zhanna Fedorovna Ifraimova 20 Mrs Aysha Ismailovna Chagiran 30/08/2006 No information on appeal proceedings Yes 15/03/2007 (complaint rejected) No information Unclear 21 Mr Aserbi Lanovich Makoyev 25/08/2006 No information on appeal proceedings Yes Did not pursue any proceedings 22 Mr Sait Mukhamedovich Bashora No information on proceedings, but the applicant received a copy Yes 31/05/2007 (complaint accepted) No information Unclear 23 Mrs Taya Alekseyevna Khavzhokova Did not claim a copy No Did not pursue any proceedings 24 Mr Kunak Ismailovich Guziyev 6/06/2006 No information on appeal proceedings Yes 5/03/2007 (complaint accepted) No information Unclear 25 Mr Amerbi Yakhiyaevich Afov Did not claim a copy No Did not pursue any proceedings 26 Mrs Yulia Anurdinovna Khagabanova 27 Mrs Lidiya Zhambulatovna Zhelikhazheva 16/10/2006 No information on appeal proceedings Yes 9/03/2007 (complaint refused) No information Unclear 28 Mr Tengiz Valeryevich Mokayev Did not claim a copy No Did not pursue any proceedings 29 Mrs Emma Auzinovna Sherdiyeva This applicant applied but died during the proceedings, the eventual outcome is unclear ? 30 Mrs Zhanetta Martinovna Kushkhova 27/11/2006 6/02/2007 Yes 31 Mr Khazret-Ali Islamovich Khalilov 16/08/2006 29/09/2006 Yes 5/06/2007 (complaint accepted) No information Unclear 32 Mr Ladin Khazhisetovich Gendukov Did not claim a copy No Did not pursue any proceedings 33 Mr Vladimir Khazeshevich Vorokov 20/10/2006 Upheld by the supervisory review body on 8/2/2007 Yes 34 Mr Murat Yuryevich Pshikhachev Did not claim a copy No 35 Mr Fedor Aliyevich Abidov   36 Mr Liuan Mukhazhirovich Kardanov 7/09/2006 No information on appeal proceedings Yes 26/12/2006 (complaint refused) 6/02/2007 (refusal upheld) Decision of 13/04/ 2006 confirmed 37 Mr Atabi Sakhatgeriyevich Kardanov Did not claim a copy No Did not pursue any proceedings 38 Mrs Rita Aslamurzovna Anzorova 39 Mr Karalbi Masadovich Amshokov 40 Mr Boris Betalovich Kuchmenov 6/09/2006 10/11/2006 Yes 19/06/2007 (complaint accepted) No information Unclear 41 Mrs Aminat Umarovna Psanukova Did not claim a copy No Did not pursue any proceedings 42 Mrs Fatima Nakhupshovna Arkhagova 43 Mr Khuseyn Hazhmuratovich Atalikov 44 Mrs Lyubov Mikhaylovna Gonibova 45 Mrs Zoya Ibragimovna Afaunova 30/08/2006 No information on appeal proceedings Yes 46 Mrs Fatimat Abubachirovna Erzhibova No information on proceedings, but the applicant received a copy Yes 25/06/2007 (complaint accepted*) No information Unclear 47 Mrs Fatima Khursanovna Gudova Did not claim a copy No Did not pursue any proceedings 48 Mr Oksana Nikolayevna Daova 16/08/2006 29/09/2006 Yes 26/12/2006 (complaint refused in respect of the brother) 5/03/2007 (complaint refused in respect of the husband) 6/02/2007 (refusal upheld in respect of the brother) No information Decision of 13/04/ 2006 in respect the brother confirmed Outcome unclear in respect of the husband 49 Mr Zaur Mukhamedovich Terkulov Did not claim a copy No Did not pursue any proceedings 50 Mr Boris Zaudinovich Bagov 1/12/2006 13/2/2007 Yes 20/06/2007 (complaint accepted) No information Unclear   (d)     Decisions not to return the bodies of the deceased to their families dated 15   May 2006 The Government said that, on 22 June 2006, 95 corpses of the presumed terrorists were cremated. From the applicants’ submissions, it appears that they first learned of the cremation from the Government’s observations in the present case. According to the Government, the cremation took place pursuant to the decision not to return the bodies of the deceased to their families dated 15   May 2006. They did not submit a copy of the decision. They also stated that the authorities had notified the applicants of the decision of 15 May 2006. It appears that on several occasions the Prosecutor General’s Office, in substance, informed the applicants of the refusal to return the bodies. It does not appear that any of the applicants brought any court proceedings to contest the refusal or ever attempted to obtain a copy of the decision by applying to the courts. (e)     Proceedings before the Constitutional Court Some of the applicants contested before the Constitutional Court the legislation governing the interment of terrorists. Their initial complaints were rejected as premature. Eventually, the complaints of the twenty-fourth and thirteenth applicants were accepted for examination. On 28 June 2007 the Constitutional Court delivered a judgment in which, in essence, it rejected the complaints of a number of individuals alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation dated 20 March 2003 were unconstitutional. The ruling noted, in particular, that the measure in question was permissible and, in the circumstances, necessary and justified. The Constitutional Court reached the following conclusions regarding the legitimate aims of and necessity for the legislation in question: “... At the same time the interest in fighting terrorism, and in preventing terrorism in general and specific terms and remedying the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity because of their death as a result of the interception of a terrorist act ... The provisions of that Act are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including action to lessen its effectiveness as propaganda, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms. The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for heightened interethnic and religious tension. In the conditions which arose in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for some extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity. In such circumstances, the federal legislator may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they had taken part. ...” The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 19 and   123-127 of the Code of Criminal Procedure provided for such review. In sum, it gave a so-called pro-constitutional interpretation of the impugned provisions upholding them de jure while modifying them de facto by forbidding the authorities to bury the bodies until a court had endorsed the competent authority’s decision. It reasoned as follows: “... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions contained therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior to this with the requirements concerning the identification of the deceased ... the time, location and cause of death ...” Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as patently immoral, illegal and generally incompatible with the Constitution. In particular, he noted: “Since long ago law has been regarded as an art of good and justice. It is considered that moral basics and ethical principles are the main and irrefutable criteria of the validity of any law. In the case at hand, they were hopelessly breached. The contested norms banning the return of bodies of the deceased to their relatives and fixing the rule on their anonymous burial are, in our view, absolutely immoral and reflecting the most uncivilised, barbaric and base views of the past. This is brightly reflected in rather frank motives cited in defence of that law in the State Duma, media and were even reflected in the present proceedings: in justification of the departure from humanness and the conventional standard of treatment of an individual, in the need for cruelness and brutality adequate to the terror, in the usefulness of ostentatious intimidation through the use of corpses of enemy, in the validity of making the families pay for being relatives with them and in the requirement “to leave them without memory and all the rest”, in the references to “traditions” of Stalinist repressions and the eastern experience of wrapping up corpses in pork skins. The right of every person to be buried in a dignified manner in accordance with traditions and customs of his family is hardly in need of special justification or even being secured in a written form in law. This right is obviously self-evident and stems from human nature as, may be, no another natural right. Equally natural and uncontested is the right of every one to carry out the burial of a related and dear person, to have an opportunity to display one’s moral duty and human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by the society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. It is not by accident that the violation of the bodies of dead and of the graves is a crime against the common morality and is prosecuted under Article 244 of the Criminal Code of Russia. As a matter of principle, these rights are too sensitive, too delicate, too private, to be interfered with by the State through their legal regulation, let alone by restricting them in public interest. The legislator may only set out sanitary and ecological requirements in respect of the places of burial, which is rather obvious, but may not touch upon emotional or moral side of the rite itself, which is a deeply private individual matter. ...” Judge G.A. Gadzhiyev issued a separate opinion in which he agreed with the majority of the court that the pro-constitutional interpretation of the impugned provisions was an appropriate solution, but disagreed on the nature and extent of the de facto modifications. He stated as follows: “... if, having found, as a result of a preliminary investigation, that a terrorist act was committed and that a given person was involved against whom criminal proceedings ... were discontinued on account of his/her death following the interception of the terrorist act, the respective law-enforcement bodies conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and security of others, they have the right to refuse to hand over the body and to make special arrangements for its burial. At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multiethnic society transmitted from generation to generation. ...” 4.     The conditions of storage of the bodies of the deceased following the attack of 13 October 2005 (a)     The conditions of storage in the immediate aftermath of the attack According to the applicants who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses were kept in the town morgue and other locations in wholly unsatisfactory conditions. In particular, they gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other. On an unspecified date Mrs G.G. Kushkhova, one of the relatives who took part in the identification of the bodies, complained in writing that the bodies had been piled up and kept at street temperature, noting that some of the corpses were decomposing and giving off an intense putrid smell. On an unspecified date Mrs F.N. Arkhagova, the forty-second applicant, stated that she had seen the bodies on the ninth day after the events in question and that some of them were decomposing and had worms in them. Mr Kereshev, the husband of the sixteenth applicant, said that when he had taken part in the identification procedure on 15 October 2005, the bodies had been piled on top of each other stripped naked. Similar written observations were made by Mr Alakayev, the fifth applicant’s husband, and Mrs Sabanchiyeva, the first applicant. The applicants produced a video recording in support of their submissions, essentially confirming the above description. (b)     The Government’s response of 6 December 2005 In response to an enquiry by the Court dated 4 November 2005, the Government submitted that the bodies of those who had attacked the town had been kept at “premises specifically designed for the long-term storage of corpses and having all the necessary equipment”. (c)     The Prosecutor General’s letter of 14 April 2006 In response to a letter from the applicants requesting an explanation for the appalling storage conditions, the Prosecutor General’s office said in a letter of 14 April 2006 that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms in refrigerated chambers set to the appropriate temperature. The authorities refused to disclose the whereabouts of the place where the bodies were stored. (d)     The Government’s observations In their observations of 22 May 2007, the Government explained that following the events in question the corpses had first been directed to the Nalchik morgue. They had then been stripped naked and the clothes sent for forensic expert examination. Thereafter all the corpses had been put in two refrigerated wagons equipped with all necessary storage facilities and sent to the town of Rostov-on-Don for genetic examination. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies and that this had probably been noted on the record submitted by the applicants. (e)     The applicants’ observations The following applicants gave statements to the effect that they had participated in the identification of the corpses and witnessed the afore-mentioned conditions: the fifth, ninth (not personally, but via his older brother and daughter-in-law, statement of 13 June 2007), fourteenth (statement of 13 June 2007), sixteenth (via her husband, statement of 12   June 2007), nineteenth (statement of 17 July 2007), twenty-first (28 June 2007), twenty-second (statement of 12 June 2007) and twenty-seventh (statement of 12 June 2007). B.     Relevant domestic law 1.     Legal definitions of terrorist activity and terrorism Section 3 of Law no. 130-FZ of the Russian Federation (the Suppression of Terrorism Act) defines terrorism as: “... (a) violence or the threat of its use against individuals or organisations, or the destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects that endangers people’s lives, causes significant loss of property, or entails other socially dangerous consequences and is perpetrated with the aim of putting public safety at risk, intimidating the population, or exerting pressure on state bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests; (b) an attempt on the life of a state or public figure, committed with the aim of halting his state or other political activity or in revenge for such activity; or (c) an attack on a representative of a foreign state, an official of an international organisation who is under international protection, or the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of complicating international relations.” Terrorist activity within the meaning of the said law encompasses: “1)     the organisation, planning, preparation and commission of a terrorist act; 2)     incitement to commit a terrorist act, to violence against individuals or organisations, or to the destruction of physical objects for terrorist purposes; 3)     the organisation of an illegal armed formation, criminal association or organisation, or organised group for the commission of a terrorist act, or participation therein; 4)     the recruitment, arming, training and use of terrorists; 5)     the intentional financing of or giving of assistance to a terrorist organisation or terrorist group.” Section 3 defines terrorist acts as: “... the direct commission of a crime of a terrorist character in the form of an explosion, arson, the use or threat of the use of nuclear explosive devices or of radioactive, chemical, biological, explosive, toxic or strong-acting poisonous substances; the destruction or seizure of, or damage to means of transport or other objects; an attempt on the life of a state or public figure or of a representative of a national, ethnic, religious or other population group; the seizure of hostages or abduction of a person; the endangerment of the life, health or property of unlimited numbers of people by creating conditions ripe for accidents or disasters of a technogenic nature or a real threat to create such a danger; the making of threats in any form or by any means; other acts that endanger people’s lives, cause significant loss of property, or lead to other socially dangerous consequences.” In the same section a terrorist is defined as: “... a person who takes part in any form of terrorist activity.” 2.     Legislation governing the interment of terrorists On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage crisis with heavy casualties, including the deaths of dozens of hostages. Shortly after the attack, on 11 December 2002 Russia made changes to the Suppression of Terrorism Act by adding section 16.1, which stated: “... the interment of terrorists who die as a result of the interception of a terrorist act shall take place in accordance with a procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of burial shall not be disclosed.” On the same date Russia also introduced changes (FZ - No. 170) to the Interment and Burial Act by adding section 14.1, which states: “... the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death as a result of the interception of the said terrorist act shall take place in accordance with a procedure established by the Government of the Russian Federation. The bodies shall not be handed over for burial, and the place of burial shall not be revealed