CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 octobre 2015

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RUSSIA   (Application no. 16664/07)                 JUDGMENT     STRASBOURG   15 October 2015     FINAL   14/03/2016     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Abakarova v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   András Sajó, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Erik Møse,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 22 September 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 16664/07) 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 a Russian national, Ms Taisa Abakarova (“the applicant”), on 18 April 2007. 2.     The applicant was represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre. The Russian Government (“the Government”) were represented by their Representative, Mr G.   Matyushkin. 3.     The applicant alleged, in particular, that her parents and three siblings had died, and she had suffered injuries, in an aerial attack in February 2000, and that no proper investigation of that incident had taken place. She referred to Articles 2 and 13 of the Convention. 4.     On 11 May 2010 the application was communicated to the Government. At the same time, it was decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1991 and lives in Zakan-Yurt, Chechnya. A.     Events of 2-7 February 2000 1.     Relevant information from other cases 6.     The facts of the case are connected to Isayeva v. Russia , no.   57950/00, 24   February 2005, and Abuyeva and Others v. Russia , no.   27065/05, 2   December 2010. These two applications were lodged by residents of Katyr-Yurt, Chechnya, who alleged that their relatives had been killed or wounded, and that they had suffered injuries and lost their property during the attack on the village from 4-7 February 2000. In the Isayeva case, cited above, the applicant and her relatives were trying to flee the fighting on 4   February 2000 when an aviation bomb exploded near their minivan, wounding the applicant and killing three of her relatives. In the Abuyeva and Others case, cited above, the applicants described how they had been trapped in the village during intense shelling and had tried to leave through what they had perceived to be a safe exit route. The Court has established a number of facts relevant to the present case, which can be summarised as follows. 7.     Ever since the start of operations by the Russian military and security forces in Chechnya in the autumn of 1999, the village of Katyr-Yurt, situated in the Achkhoy-Martan district, had been considered a “safe zone”. By the beginning of February 2000 up to 25,000 persons were living there, including local residents and internally displaced persons from elsewhere in Chechnya. In the period leading up to 4 February 2000 the residents of Katyr-Yurt were not informed by the State authorities about the possible advance of illegal fighters into the village, even though such information was available to the military commanders. On 4 February 2000 the village was captured by a large group of Chechen fighters escaping from Grozny. The Russian military forces carried out an assault, using indiscriminate weapons such as heavy, free-falling aviation bombs, artillery, missiles and other weaponry. Although the operation was not spontaneous and involved the use of indiscriminate and highly lethal weaponry, the residents of the village were provided neither with sufficient time to prepare to leave nor with safe exit routes to escape the fighting. The two exits from the village were controlled by the military by means of roadblocks. The residents were allowed to leave through the roadblock on the road leading towards the district centre of Achkhoy-Martan, but the other one, on the road leading towards Valerick, remained closed during most of the fighting. The shelling of Katyr-Yurt continued until 7 February 2000 inclusive (see Abuyeva and   Others , cited above, §§ 8 and 197-201). 2.     The applicant’s account 8.     The applicant and her family had been living in the village of Zakan ‑ Yurt, situated about thirteen kilometres from Katyr-Yurt. In November 1999 the applicant turned eight years old. She had lived with her mother, father, two elder brothers and a younger sister. She could remember the events of winter 1999-2000 when the hostilities erupted. On 1 February 2000 a large group of insurgent fighters entered Zakan-Yurt, walking into houses and asking for clothes and food. On the same day airstrikes started. The applicant’s family went into hiding in a cellar. 9.     On 2 February 2000 the applicant’s family decided to travel to Katyr ‑ Yurt, which the applicant’s father described as a “peace zone”. The applicant’s father drove his black Volga car; her mother and brother Magomed sat in front, while the applicant, her sister Madina and brother Ruslan, as well as two cousins, Khava and Luiza Abakarovy, were in the back seat. On the same day they arrived in Katyr-Yurt and stopped in the centre of the village. 10.     According to the applicant, they did not know anyone in the village and an unknown man invited them to stay at his house, as did many other villagers. The family stayed with this man for two nights and everything was calm. On the morning of 4 February 2000 airstrikes started, and there were a lot of explosions. The applicant’s family went into the cellar under their host’s house. Many other people also arrived, including relatives and acquaintances from Zakan-Yurt. They stayed in the cellar throughout the day, while the shelling of the village continued. 11.     Later in the afternoon the applicant’s father said that it was too dangerous to stay in Katyr-Yurt and that they would drive to Achkhoy ‑ Martan. The applicant’s father, mother, two brothers and two cousins, as well as the applicant herself, got into the car. The applicant remembered seeing a lot of people on cars, tractors and on foot trying to get out of Katyr ‑ Yurt. There were explosions. 12.     At some point the applicant lost her conscious awareness of what was happening and found herself lying in the road. Their car was burning. She could see her sister Madina, brother Ruslan and cousin Luisa. They were all alive but wounded and burned. The applicant could not see her parents. An old man brought the applicant into the courtyard of a house. Sometime later the applicant, her sister, brother and cousin were put on a bus. The applicant lost consciousness and woke to find herself in hospital in Urus-Martan. Her legs were covered with plaster, and her face and hands were burned. She also saw her sister Madina in the same room. 13.     On 5 February 2000 the applicant and her sister were brought by ambulance to Nazran, Ingushetia. The following morning the applicant did not see her sister and she did not know at that time where her family was. 14.     On 4 March 2000 the applicant was discharged from the Nazran hospital, with her legs still in plaster. She was diagnosed with fractures of the left hip and right shin, and thermal burns. The circumstances of the wounding were indicated as “shelling, direct hit on the car in which the family was travelling”. The applicant went to live with her grandmother in Zakan-Yurt. There she learnt that her whole family had died. As a result of the air-strike, the following relatives of the applicant were killed: -     Mr Mansur Abakarov, born in 1955, the applicant’s father; -     Mrs Khava Zaumayeva, born in 1954, her mother; -     Mr Ruslan Abakarov, born in 1987, her brother; -     Mr Magomed Abakarov, born in 1985, her brother; and -     Mr Madina Zaumayeva, born in 1994, her sister. 15.     The applicant’s cousin Ms Khava Abakarova was also killed. 16.     In March and April 2000 the Achkhoy-Martan district civil registration office recorded the deaths of the applicant’s mother, father and three siblings which had occurred in Katyr-Yurt on 4 February 2000. The cause of death was recorded as splinter wounds and burns. B.     Subsequent events and investigation 1.     Information about the investigation from the cases Isayeva v.   Russia, no.   57950/00, and Abuyeva and Others v. Russia, no.   27065/05 17.     On 16 September 2000 the prosecutor’s office of the Achkhoy ‑ Martan district (the district prosecutor’s office) initiated an investigation into the events of 2-7 February 2000 in Katyr-Yurt in response to a complaint by the applicant in the Isayeva case, cited above. 18.     On 19 February 2001 the investigation into the criminal case was transferred to the military prosecutor’s office of the North-Caucasus Military Circuit (the military prosecutor’s office). The case file was assigned number 14/00/0004-01. 19.     It appears that in 2000-2001 the investigation questioned most of the applicants in application no.   27065/05, as well as other individuals who had been in Katyr-Yurt at the time. 20.     At that time the investigation found it established that 43 civilians had been killed and 53 wounded as a result of the operation. 62 individuals were granted victim status in the proceedings. The applicant’s relatives and the applicant herself were not listed among the victims. 21.     On 13 March 2002 the military prosecutor’s office terminated the proceedings in criminal case no.   14/00/0004-01. The decision referred to a large quantity of documents and statements from dozens of witnesses, including local residents, servicemen from various units, and commanding officers. The decision also referred to the results of the military experts’ report of 11   February 2002, which established that the actions of officers from the Internal Troops involved in the special operation in Katyr-Yurt on 4-6 February had been appropriate to the circumstances and in line with the applicable legal provisions. On this basis the investigation concluded that command corps’ actions were absolutely necessary and proportionate to the resistance put up by the insurgent fighters. It found an absence of corpus delicti in the actions of the servicemen. By the same decision the victim status of 62 individuals was withdrawn. The individuals in question were to be informed of the possibility of seeking redress through civil proceedings. 22.     It appears that the victims were not informed by the prosecutor’s office about the termination of the proceedings and nothing happened until January 2005, when they learnt that the proceedings had been terminated. 23.     Between January and March 2005 the applicants in application no.   27065/05 contacted the military prosecutor’s office in writing, seeking information about the progress of the investigation in case no.   14/00/0004 ‑ 01. They referred to the circumstances of the deaths and wounding of their family members and asked to be granted formal status of victims in the proceedings. 24.     In response to these requests, between January and April 2005 the military prosecutor’s office informed the applicants of the results of the military experts’ report, the termination of proceedings in criminal case no.   14/00/0004-01 and the withdrawal of victim status in 2002. The letters also confirmed that the investigation had established the deaths and injuries of which they had complained and informed them that they could apply to a civil court to obtain compensation. Some of these letters contained the decision of 13 March 2002 as attachment. 25.     On 6 June 2005 26 applicants in Abuyeva and Others case lodged a claim with the military court of the North-Caucasus Military Circuit. They complained about the ineffectiveness and incompleteness of the investigation. In particular, the applicants noted that some of their relatives’ deaths had not been recorded by the investigation and that these persons had not been listed amongst those who died in Katyr-Yurt in February 2000. They asked the court to quash the decision to terminate the criminal proceedings and to oblige the military prosecutor’s office to resume the investigation in the criminal case, to grant each of them the status of victim in the criminal proceedings, and to issue them with copies of the relevant decisions. These complaints did not directly refer to the situation of the applicant’s family. 26.     The applicants’ request was granted and the case was reopened in 2007 under the number 44/00/0026-05. However, on 14 June 2007 the investigation was closed, with the same conclusions as in March 2002, on the basis of Article 39, part 1 of the Criminal Code. The decision confirmed the deaths of 46 and the wounding of 53 local residents, without listing their names. An additional expert report was produced by the Military Academy of the Armed Forces in June 2007, which found that the actions of the command corps in planning and executing the operation had been reasonable and in line with domestic law. No copy of that report has ever been disclosed to the applicants or submitted to the Court. The decision stated in this respect: “... The actions of the fighters (the occupation of Katyr-Yurt by a group of fighters numbering three to four thousand persons, the fighters establishing strongholds in the houses, [their] fierce resistance and their using local residents as a “human shield”) ... represented a real danger to the lives and health of the local residents, and could have entailed unnecessary losses by the federal forces ... These circumstances required the taking of adequate measures by the command corps in order to prevent the danger of armed assault against the citizens and their lives and property (residents of Katyr-Yurt and military servicemen), in addition to [the need to safeguard] the interests of society and the State which are protected by law (the reinstatement of the constitutional order in Chechnya). After issuing a preliminary notification and giving the civilians a real opportunity to leave the village, the subsequent extermination of pockets of the fighters’ resistance by means of artillery and attack aircraft, employing area-point method (“зонально-объектовый метод”), did not exclude deaths among civilians. At the same time, the use of such means of extermination was consistent with the circumstances and with the measures taken in order to minimise losses among civilians. The actions of the command corps (commanders) during the preparation and carrying out of the special operation aimed at the liberation of Katyr-Yurt between 4 and 7 February 2000 were in line with the requirements of relevant field manuals, internal regulations and instructions, were lawful and did not contain elements of criminally ”. 27.     The decision to grant victim status to 95 people was quashed. The military prosecutor of the United Group Alliance in the Northern Caucasus (UGA) forwarded the decision to the head of the Government of Chechnya, asking it to identify the victims’ places of residence and to inform them of the closure of the investigation, as well as the possibility of seeking compensation through the civil courts. 28.     The name of the applicant in the present case was not listed among the 95 individuals who had been granted victim status. 2.     The investigation into the applicant’s complaint 29.     After discharge from hospital, the applicant had to keep plaster on her legs for three months. Because the hostilities in Chechnya were still ongoing, her relatives took her to the Volgograd Region to continue her treatment. In 2002 the applicant was taken to Norway for treatment for one week. In 2002 her paternal grandmother, with whom she had been living after her parents’ deaths, died. After that the applicant lived with her maternal grandparents in Zakan-Yurt. 30.     In their observations of September 2010, the Government stated that in 2001 a witness had told the investigators about the deaths of six people in a Volga car (see Isayeva , cited above, § 56) but their identities were unknown at that time. It was not until the applicant’s questioning in March 2007 (see below) that the investigation obtained this information. 31.     In December 2006 a distant relative of the applicant’s took her to a human rights organisation, at her request, where she found out for the first time that a criminal investigation had been opened into the attack at Katyr ‑ Yurt. 32.     On 18 December 2006 the applicant wrote a letter to the military prosecutor of the UGA and informed him about the deaths of her five relatives and the injuries she suffered on 4 February 2000 in Katyr-Yurt. She attached five death certificates and her discharge papers from the Nazran hospital dated 4 March 2000. 33.     On 19 March 2007 the applicant was questioned and granted the status of victim in criminal case no.   34/00/0026-05. At that time the applicant was a minor but the questioning took place in the absence of legal guardian or representative. According to the parties, there is no information indicating the establishment of guardianship over the applicant up to the age of majority. 34.     She was not informed of the decision to close proceedings of 14   June 2007 (see paragraphs 26–28 above). The Government submitted in their observations that this had been an omission on the part of the investigator which had been due to the large number of victims in the case. 3.     The reopening of the investigation and the decision to close it of 9   March 2013 35.     As is apparent from subsequent documents submitted by the applicant, the investigation into the attack upon Katyr-Yurt was reopened in September 2012. The investigators commissioned an additional expert report into the lawfulness and reasonableness of the military intervention. Neither party submitted to the Court the decision to commission the expert report, the questions put to the experts, or a copy of the report itself, nor is it clear which documents were made available to the experts. The applicant’s knowledge of and involvement in this procedural step has not been clarified. It appears that the document, as most other documents in the file, has been classified. A summary thereof and summaries of other documents are contained in a twenty-page-long extract from the decision to close the criminal investigation issued by a senior investigator of the Military Investigations Unit of the Investigative Committee in the Southern Federal Circuit on 9 March 2013 (extract dated 16 March 2013). 36.     The aforementioned extract opens by stating the factual circumstances of the case as established at that time. According to the text, on the night of 3 to 4 February 2000 a group of between three and four thousand fighters under the command of field commander Gelayev had entered Katyr-Yurt (also spelled Katar-Yurt). They were armed with automatic firearms, large-calibre machine guns, flame-throwers, portable anti-aircraft launchers and armoured vehicles. On 4 February 2000 the head of the operations centre (OC) of the Western Zone Alignment in Chechnya gave orders to block the village to carry out a special operation. By that time, most inhabitants had left the village and others were hiding in their houses. The decision to evacuate the civilians was taken between 7   and   11   a.m. on 4 February. The population had been informed of this possibility through the head of the administration and by means of a loudspeaker device mounted on a helicopter. Following skirmishes on the outskirts of Katyr-Yurt and casualties suffered by the security forces, at 9 a.m. artillery started to carry out pin-point strikes aimed at clusters of fighters in the centre and on the periphery of the village. After sustaining casualties, a reconnaissance group retreated from Katyr-Yurt on the morning on 4   February, following which attack aircraft were called in. Due to the fierce fighting and the artillery and air strikes upon the clusters of fighters, the residents started to leave, and by midday on 4 February “their outflow had become significant”. The extract stated that the special operation had continued for two days, although the strikes continued until 7 February. On the third night [presumably the night of 6 to 7 February] a significant proportion of the fighters, numbering about 800 in all, had left the village under cover of poor visibility and escaped into the mountains; 386 had been killed during the operation. The commanders of the special operation had taken measures to arrange the evacuation of civilians but their plans had been upset by the fighters, especially in the initial stages of the operation. Many residents trying to leave the village had been caught in the crossfire between the fighters and the security forces. Most residents had been killed or injured in the initial stages of the operation, in the central part of the village where the most intense fighting had taken place. No conclusive figure of injured or dead civilians, fighters or security forces was given in the extract. 37.     The extract then states that the latest decision to terminate proceedings had occurred on 28 September 2012. That decision was quashed on 9 October 2012 and the investigation was extended until 9   March 2013. 38.     The extract goes on to cite statements from various military and civilian witnesses, without indicating their names or ranks or the dates when these statements were taken (see Isayeva , cited above, §§ 42-92). 39.     The document also refers to an additional operational-tactical expert report (“ дополнительная комиссионная оперативно-тактическая судебная экспертиза” ) produced on 24 September 2012 by unnamed “external experts from the military faculty of the Southern Federal University” (“ внештатные эксперты факультета военного обучения Южного федерального университета” ) based in Rostov-on-Don. As summarised in the extract, the experts’ conclusion did not differ from the findings reached by the previous expert reports commissioned by the investigation (see paragraphs 21-27 above). The expert report is cited as follows: “In early February 2000 the operational situation in the area of the counter-terrorist operation in Chechnya was extremely tense and difficult. ... After the defeat suffered in the plains of Chechnya and in Grozny, [the illegal insurgents] attempted to move into harsh southern mountainous regions where they would be able to take rest and recover, in order to organise further military action. ... A very difficult situation developed in the area covered by the Western Zone Alignment. Their main task was to prevent the illegal insurgents from breaking through from the mountainous areas of Chechnya to the plains, to identify, disarm and detain members of the illegal armed groups, and to destroy them in the event of armed resistance ... ... In early February 2000 reconnaissance information was received about the taking of Katyr-Yurt by a large group of fighters. The exact number of fighters was unknown. In order to prevent any further gathering of the fighters, it was decided to surround the village and carry out a special operation there ... A plan for the special operation was worked out. The plan detailed the detachments responsible for blocking and searching, the order of fire contact in the event of armed resistance by the fighters, the location of the command headquarters and control points ... The artillery targets were established in advance along the lines of the fighters’ possible escape routes from Katyr-Yurt and potential arrival of reinforcements, outside of the village. Two control points (roadblocks) were established at the two ends of the village to ensure the exit of civilians – one towards Achkhoy-Martan and the other towards Valerik. The civilians left the village through the two roadblocks, along ‘humanitarian corridors’. The head of Katyr-Yurt was informed of the decision to carry out a special operation. He requested postponement in order to ascertain the situation with his own resources and to drive the fighters out of the village. The special operation was postponed for one day. However, the following morning the fighters attacked OMON [special police forces] based in Katyr-Yurt and attempted to break through the lines of the security forces. The security forces sustained casualties. As became apparent during the clashes, the fighters were armed not only with firearms, but also with grenades and fire-launchers, large calibre machine guns, mine-launchers and anti-tank rocket launchers. The fighters were well prepared and were able to use artificial and natural hiding places in order to deliver combat in a populated area. The number of fighters greatly exceeded the security forces (by 4-6 times).” 40.     The decision goes on to cite the report’s conclusion that the use of fighter jets, artillery and mine-launchers upon fortified positions had been justified and that the refusal to employ them would have resulted in heavy losses among the security forces and failure to achieve the goals as set. Over a period of three days most fighters present in the village were killed (one military unit had reported 386 killed fighters). 41.     The report cited military field manuals and concluded that the actions of the commanders had been in full compliance with those acts. The commanders had organised and planned the enforcement of the objectives set. The pin-point air strikes upon previously agreed targets, the direct strikes by artillery and anti-tank rocket launchers, and the tank and anti-tank guns had been directed by forward air controllers and artillery pointers upon clearly established and observed targets. 42.     Page 12 of the extract contains the following citation from the decision: “the evidential material in the criminal investigation file ... shows that over 1,000 fighters who entered Katyr-Yurt were armed with automatic firearms, large-calibre machine-guns, grenade-launchers and armoured vehicles; fortified firing points had been established in the captured houses. [In such circumstances] the use of artillery and airborne weapons between 4   and 7 February 2000 was justified ...” 43.     As cited in the extract, the experts focused on the use of artillery and aircraft. From the operative military documents referring to the use of artillery it was impossible to discern where and when exactly, and at what targets the artillery had been employed, since all the documents reviewed by the experts were judged by them as either irrelevant to the operation in question or not containing any relevant information. As to the aircraft, they had used aviation bombs and unguided and guided missiles of undisclosed types. The number of aircraft involved and the number and timing of the mission sorties, as well as the number of missiles and bombs used, was not specified. As cited, the report established that during the mission sorties the pilots had received information from the forward controllers, because the missions were taking place in the vicinity of, or within, the populated area. The target selection was done using smoke pods or by reference to clearly identifiable topographical “highpoints”. There was no evidence of provocations by fighters or mistakes in selecting targets. The document went on to state that the identification of targets had occurred on the basis of information received prior to departure, from the forward air controllers during the flight, and from the observed activity. Since their use by illegal insurgents could not be verified, attacks on vehicles were ruled out unless very precise and distinguishable directions had been received from the ground. The aircraft attacked from a height of about two kilometres and from a distance of about two kilometres; from that distance details such as clothing and the presence of firearms could not be distinguished. For that reason, contact with the air controllers was necessary before and after hitting the selected target. 44.     In the cited extract, the experts concluded that “such engagement of artillery and aviation munitions practically ruled out the likelihood of casualties to civilians, except those who were with the fighters in houses occupied by the latter”. 45.     They further concluded that the “employment of a minimal amount of artillery, the choice of the most accurate target direction possible, and the use of the minimum amount of shells necessary ... guaranteed safety from injuries by splinters both for the civilians and security forces. ... Having examined the criminal investigation file, the experts concluded that the OC of the Western Zone Alignment and the head of the special operation in Katyr-Yurt had taken all possible measures in order to prevent losses among civilians while planning and carrying out the operation”. 46.     Turning to the situation of the civilians, the experts judged that they had been able to leave the village along “humanitarian corridors” through two roadblocks. The information about the corridors had been communicated by means of a helicopter and an armoured personnel carrier (APC). The head of the administration had been properly informed of the beginning of the special operation and, at his request, its start had been postponed for a day. The civilians had been informed of the need to evacuate and two roadblocks had ensured safe and unhindered passage. The civilians had been accorded the time necessary for the evacuation and the transport carrying the civilians was able to travel back and forth through the roadblocks. 47.     While the report, as cited in the extract, conceded that an unspecified number of civilians had been killed during the operation through the use of weapons under the control of the operation’s commanders, such measures had been in compliance with the appropriate order of decision-taking in the choice of targets and means employed during the special operation. 48.     On the basis of this report, the investigator concluded that the measures resulting in civilian casualties had been absolutely necessary within the meaning of Article 39, part 1 of the Criminal Code (as in the previous decisions of 13 March 2002 and 14 June 2007 – see Abuyeva and Others , cited above, §   159). 49.     The extract ended by listing the names of the 47 individuals who had been killed, but Mr Z. M. Isayev (a son of the applicant in the Isayeva case, cited above) was listed twice. It did not contain the names of the applicant’s five family members, nor of her cousin Khava Abakarova (see paragraphs   14 and 15 above). Nor did it contain the names of five relatives of applicants 2 and 24 in the Abuyeva and Others case (see Abuyeva and Others , cited above, §   156). The non-exhaustive list of the wounded included the applicant; however no separate list of victims has been drawn up; nor does it appear that a copy of that decision was sent to them. 4.     The victims’ appeals 50.     On 26 September 2013 a lawyer representing Mrs Marusa Abuyeva, another victim in criminal investigation no.   14/90/0092-11, appealed to the Grozny Garrison Military Court against the decision of 9 March 2013 to close the criminal investigation and to terminate Mrs Abuyeva’s victim status in the proceedings. The statement of appeal was based on the following grounds: the decision had not been based on the established facts, no proper collection and examination of evidence had taken place and legal classification of the events had been incorrect. 51.     Firstly, it was argued that the investigation had failed to establish the following pertinent facts: the number of illegal fighters in Katyr-Yurt; the timing and conditions of the transmission of information about the operation and evacuation of civilians; the purpose of the roadblocks at the two extremities of the village; and the details of the aircraft bombings. As to the number of fighters, the statement of appeal referred to various figures cited in the extract and emphasised the fact that the source of this information had not been identified. Likewise, there was a lack of clarity as to the number of fighters killed, nor were there any indications as to any names, identification procedures etc. The appeal statement also pointed out that the number of the security force personnel involved had not been given; it was therefore difficult to evaluate the numerical superiority of the fighters and the need to employ massive weapons. Furthermore, the victim challenged the statement that the administration and population of Katyr-Yurt had been informed about the operation in advance, pointing to the absence of any clear evidence in the case-file to that effect. Turning to the roadblocks set up by the security forces, the appeal statement pointed out that there were no grounds for concluding that this measure had facilitated the exit of civilians from Katyr-Yurt and reiterated the findings made in this respect by the Court in the judgments in the Isayeva and Abuyeva and Others cases (both cited above, §§   194 and 199, accordingly). As to the details of aircraft bombing, it was argued that the investigators had accepted two mutually incompatible versions and no steps had been taken in order to clarify whether the pilots, or the aviation controllers who had coordinated the fire, had been able to observe and distinguish legitimate targets (members of illegal armed groups) from civilians. It was also pointed out that the employment of unguided missiles and free-falling general purpose bombs in any event ruled out the possibility of limiting the impact to the selected targets. 52.     As regards the incompleteness of the investigation, it was stressed that the investigators had failed to collect the information necessary to evaluate the threat to the civilian population and the appropriateness of the use of selected weapons and ammunition, and to compile an exhaustive list of victims and damage caused. On the last point, it was emphasised that no list of those who had been killed, both civilians and fighters, had ever been compiled and that the information in this regard remained incomplete. 53.     Finally, it was argued that the legal classification of the commanders’ actions had been incorrect and that the application of Article   39 part 2 of the Criminal Code had been unjustified without the prior establishment of all the circumstances of the case, including those listed above. 54.     On 6 December 2013 the Grozny Military Garrison Court examined and dismissed the appeal. The court referred to the conclusions of the expert report of 24 September 2012, according to which the actions of the operational commanders had been in accordance with the relevant field manuals and other instructions and were justified in view of the numerical superiority of the fighters. The court also found that the evidence collected by the investigation justified the conclusions reached as regards each of the points raised by the appeal. As to execution of the Isayeva and Abuyeva and   Others judgments, the court stressed that in accordance with Article 46 of the Convention, and in line with the Resolution of the Plenary of the Supreme Court No. 21 of 27 June 2013, the investigation had been reopened in 2012 and a number of relevant steps had been taken. In particular, a new expert report had been commissioned and carried out. The Court’s position on the ineffectiveness of the previous investigation had therefore been taken into account and the failings had been rectified. 55.     The victim appealed. In her appeal of 23 December 2013 it was stressed that the breach of procedural obligations under Article 2 in this case had taken on a lasting character. Pointing to the relevant passages in the Isayeva and Abuyeva and Others judgments, both cited above, the appeal argued that the following fundamental defects of the investigation, as identified by the Court, had not been corrected in the new round of proceedings: there had been no independent evaluation of the proportionality and necessity of the lethal force used; no individual liability had been established for the aspects of the operation which had led to civilian losses, and these aspects had not been studied and evaluated by an independent body, preferably a judicial one. It was reiterated that the expert report of September 2012, as cited in the decision of 9 March 2013, had simply repeated the findings of two previous expert reports which had already been examined by the Court. Like the previous two, it had not been based on the pertinent facts of the case. Finally, the important question of the total number of victims had still not been resolved, as demonstrated by the failure to include some of the victims’ deceased relatives in the total. 56.     On 6 March 2014 the Rostov Circuit Military Court examined the appeal. During the hearing, the victim’s representative submitted a number of additional points. He concentrated on the relevant precepts of international humanitarian law and the practice of international criminal tribunals which, he argued, should have guided the investigator in his examination of the case. In his view, the decision of 9 March 2013 had failed to take into account the relevant interpretation of these provisions in so far as it concerned the definition of victims as civilians, and the widespread, systematic, indiscriminate and disproportionate attacks on them. 57.     The Circuit Military Court dismissed the appeals. It found that the Garrison Court had examined all the relevant evidence and had applied a comprehensive and consistent interpretation thereto. At this stage, the judge was unable to analyse the substance of the question of guilt or innocence, or to evaluate the correctness or sufficiency of the evidence collected. The Circuit Court stressed that the victim’s arguments regarding both the incompleteness of the investigation and the failure to take into account the European Court’s binding judgments had been thoroughly examined and dismissed. 58.     As is apparent from subsequent documents, the victim’s Supreme Court cassation appeal was unsuccessful. On 25 September 2014 a judge of the Supreme Court refused to accept the request for review, in view of the detailed and well-reasoned decisions of the military courts. The victim’s argument that the legal position of the Court in the new round of proceedings had not been taken into account was judged to be unfounded. II.     RELEVANT DOMESTIC LAW 59.     For the relevant provisions concerning criminal investigation (see Abuyeva and Others , cited above, §§ 165-68). 60.     The participation in criminal proceedings of victims who are minors is regulated by Section 45 part 2 of the Code of Criminal Procedure of the Russian Federation. It stipulates that their interests in the proceedings must be safeguarded by the mandatory participation of their legal guardian or representative. Section 191 part 1 of the Code, as in force at the relevant time, gave the right to the guardian or representative to be present with the minor victim and/or witness during questioning and other actions. 61.     On 10 February 2009 the Plenary Supreme Court of the Russian Federation adopted guidelines (Ruling No.   1) on the practice of the judicial examination of complaints under Section 125 of the Code of Criminal Procedure of the Russian Federation. The Plenary reiterated that any party to criminal proceedings or other person whose rights or freedoms were affected by the action or inaction of the investigating or prosecuting authorities in criminal proceedings can use Section 125 of the Code of Criminal Procedure to challenge a refusal to institute criminal proceedings or a decision to terminate them. The Plenary stressed that, in declaring a law enforcement authority’s specific action or failure to act unlawful or unjustified, a judge was not entitled to quash the impugned decision or to order the official responsible to revoke it and could only ask him or her to rectify the shortcomings indicated. Should the authority concerned fail to comply with the court’s instructions, an interested party could complain to a court about the authority’s failure to act and the court could issue a special ruling (“ частное определение” ) drawing the authority’s attention to the situation. 62.     In Resolution No. 21 of 27 June 2013 “On the Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols by the courts of general jurisdiction”, the Plenary of the Supreme Court of the Russian Federation issued, inter alia, the following explanations to the courts about the execution of judgments of the European Court: “2.     As it follows from Article 46 of the Constitution, Article 1 of the Federal Law of 30 March 1998 No.   54-FZ ‘On ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols’ (hereinafter – the Federal Law on Ratification), the legal positions of the European Court of Human Rights (hereinafter – the European Court, or Court) contained in final judgments adopted against the Russian Federation, must be applied by the courts. In order to ensure effective protection of human rights and freedoms, the courts should take into account legal positions of the European Court, as stated in the final judgments adopted against other states – members of the Convention. Legal positions should be taken into account by the courts so long as the circumstances of the case under consideration are similar to the circumstances of the case examined by the European Court. ... 17.     In accordance with the provisions of Article 46 of the Convention, interpreted in the light of the Recommendation of the Committee of Ministers of the Council of Europe R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (hereafter ‘the Recommendation on re-examination’), not every violation of the Convention or its Protocols established by the European Court in respect of the Russian Federation calls for re-examination of the relevant domestic judicial acts in the light of new circumstances. The courts should bear in mind that a judicial act should be re-examined if the applicant continues to suffer from the negative consequences thereof (for instance, if the person remains in prison in violation of the Convention) and just satisfaction, awarded by the European Court in accordance with Article 41 of the Convention and paid to the applicant, or measures other than re-examination do not ensure the restoration of the violated rights and freedoms. ... When deciding questions of re-examination, the courts should verify the existence of a causal link between the violations established by the European Court and the negative consequences from which the applicant continues to suffer. ... 20.     Article 1 of the Federal Law on Ratification, read in conjunction with Article   46 of the Convention, demands that, when reviewing a judicial act which triggered an application to the European Court, the courts should take into account the legal positions of the European Court as stated in the relevant judgment and the violations of the Convention and its Protocols found by the Court. 21.     If the European Court establishes a procedural violation of the rights of the persons who have taken part in the proceedings, or who have been unjustifiably excluded from such proceedings, the court may, when re-examining the judicial decision in question, after ensuring if possible in the circumstances of the case the reparation of the violations of the Convention or its Protocols which have occurred previously, adopt a judicial act which would be similar to the previous one (Article   46 of the Convention, as interpreted in accordance with the Recommendation on re ‑ examination).” III.     INFORMATION CONCERNING THE EXECUTION OF THE ISAYEVA AND ABUYEVA AND OTHERS JUDGMENTS 63.     At the 1144th meeting of the Council of Europe’s Committee of Ministers (June 2012, DH), following the Abuyeva and Others judgment, the Russian authorities provided information on the third round of the investigation ( DH-DD(2012)488 – part 2). They referred to the decision to terminate proceedings taken on 16 March 2012. The main developments were summarised: -     the new investigation was carried out by the military investigators of the Investigative Committee, a new structure set up in September 2007; -     139 individuals were granted victim status, that is to say 44 more than in the framework of the previous investigation; -     victims and witnesses from the civilian population were questioned; however, they could not provide any new information given the remoteness of the events; -     the head of the local administration had died in March 2002 and therefore could no