Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Karel Jungwiert;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The first three applicants were born in 1934, 1943 and 1952 respectively, and the fifth, sixth and seventh applicants were born in 1962, 1974 and 1976 respectively. The date of birth of the fourth applicant is unknown. The applicants live in the village of Arshty in the Sunzhenskiy District of the Republic of Ingushetia. This district borders on the Chechen Republic.

The facts of the case as submitted by the parties are summarised in section A below (paragraphs 9-60). A description of the documents submitted by the Government is contained in section B below (paragraphs 61-104).

The first applicant is the mother of Khalid Khatsiyev, born in 1969, and of the third and fourth applicants. The second applicant is the mother of Kazbek Akiyev, born in 1970, and of the fifth and sixth applicants. The seventh applicant was married to Kazbek Akiyev.

Khalid Khatsiyev and Kazbek Akiyev were married and had two and four children respectively. At the material time both men lived in Moscow and went to Arshty in August 2000 to help their families with seasonal agricultural work.

The facts surrounding the death of the applicants’ two relatives are disputed by the parties.

The applicants did not witness the events described below and the following account is based on eyewitness statements submitted by them.

In August 2000 the residents of Arshty were cutting grass. The work was done collectively by all villagers in small groups of five to six people.

On 6 August 2000 about a hundred people divided into small groups were working in the surrounding hills. One of the groups was formed by Khalid Khatsiyev, Kazbek Akiyev, their cousin Ilyas Akiyev, and three men who had come to Arshty as internally displaced persons from Chechnya – Baymurza Aldiyev, Aslambek Imagamayev, and Aslambek Dishniyev.

Aslambek Imagamayev stated that while working they had seen several helicopters bombing a forest area near the village of Bamut in Chechnya, about ten kilometres away from them.

Around 1.00 or 1.30 p.m. the group in which the applicants’ relatives were working had decided to go home for lunch, when two military helicopters appeared from the direction of Bamut and started circling low above the field. Aslambek Imagamayev identified them as MI-24s. One of the helicopters fired a burst from an aircraft machine-gun at a spot situated 40-50 metres from the men. They were scared and, throwing down their scythes, ran to a white Niva car and drove down the hill in the direction of Arshty. Baymurza Aldiyev and Aslambek Imagamayev claimed that the helicopters had flown away but then reappeared and the men saw them right above the car, hovering at low altitude. They stopped the vehicle and ran for cover in different directions.

The helicopters launched non-guided missiles and strafed the Niva car with aircraft machine-guns with the result that its back tyres were flattened. They then chased the men. One of the helicopters fired a missile at the place where Khalid Khatsiyev and Kazbek Akiyev were hiding. They were both killed and Ilias Akiyev, who was nearby, was wounded by shrapnel in his leg.

Aslambek Imagamayev stated that he had run through the forest to tell the villagers what had happened. He stated that he had heard the helicopters shooting for some time. Baymurza Aldiyev testified that he had run towards the river and had hidden there in a bush. He estimated that the attack on the Niva car had continued for about an hour and a half. After the helicopters had left, he returned to the vehicle and found the bodies of Khalid Khatsiyev and Kazbek Akiyev about fifty metres away from the car.

The bodies were taken to the village in the damaged Niva.

The attack and the deaths were reported by human rights NGOs and the Russian mass-media in August 2000.

According to the Government, since the beginning of the counter-terrorist operation within the territory of the Chechen Republic, the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in the North Caucasus. The residents of the Republic of Ingushetia had been notified, through the television and press, of the risk of being at the administrative border with Chechnya as well as of the actions they should perform when in the area of a counter-terrorist operation so as to indicate that they did not belong to illegal armed groups. In particular, once they had established “visual contact” with representatives of the federal forces, residents were supposed to stop moving, mark themselves with a piece of white cloth and wait for the arrival of a group of servicemen for an identity check.

On 6 August 2000 the authorities carried out a special operation aimed at searching for the base camp, eight kilometres to the south of the village of Arshty, of a group of around 250 illegal fighters, who were to be detained. The operation was planned and commanded by senior officers of the Western Group of the United Group Alignment (Западная группировка войск Объединенной группировки войск). The Government refused to indicate the names of those officers or provide details of the operation, stating that disclosure of the information might be harmful to the State’s national security interests. According to them, “in the materials of the preliminary investigation file there was no information” as to whether the residents of Arshty had been warned in advance about the operation in question, or whether the military personnel involved had been instructed to avoid civilian casualties.

During the operation, a federal transport MI-8 helicopter was hit by fire from members of illegal armed groups in the vicinity of the village of Arshty and crashed to the ground. Orders were given to evacuate the crew and servicemen on board the helicopter from the site of the crash. The Government alleged, with reference to the findings of the Chief Military Prosecutor’s Office, that servicemen who had arrived to evacuate those injured also came under fire from illegal fighters. The airspace above the area of the rescue operation was patrolled in shifts by a pair of military MI-24 helicopters.

At about 1 p.m., while patrolling over the area situated four kilometres to the west of Arshty and four kilometres from the site of the crash of the MI-8 helicopter, the pilots of the MI-24 helicopters saw a Niva car and a group of at least five men with light machine-guns. In the Government’s submission, the pilots observed the men through a target control system of tenfold magnification, from a distance of two kilometres and at an altitude of 100-150 metres.

According to the Government, the pilots reported this to the command centre and having received the respective order fired warning shots at a spot situated fifty metres away from the car and the people. The men immediately got into the car and started driving away, instead of staying where they were and waiting for the arrival of ground troops for an identity check. The pilots again reported to their superiors, received the respective order and fired warning shots for the second time, but the car continued moving. In order to prevent the Niva car with unidentified armed men inside from driving further without authorisation in the close vicinity of the zone of the rescue operation, the pilots, pursuant to their superiors’ order, fired at the car with the result that Khalid Khatsiyev and Kazbek Akiyev were killed and Ilias Akiyev was wounded.

The Government also submitted that “there was no information in the materials of the preliminary investigation file” as to whether the attacked men had used the firearms against the pilots, and that “according to its technical description, a light machine-gun [was] ineffective for hitting a target at a distance of over one kilometre”.

According to the Government, after the rescue operation in respect of the crashed MI-8 helicopter had been completed, the servicemen had inspected the area near the crash site and found a Niva car as well as hand grenades, spent cartridges from light machine-guns and a bloodstained ammunition belt near the car.

In the evening of 6 August 2000 several officials from the prosecutor’s office of the Sunzhenskiy District (прокуратура Сунженского района – “the Sunzhenskiy Prosecutor’s Office”) and the prosecutor’s office of the Republic of Ingushetia (прокуратура Республики Ингушетия – “the Republican Prosecutor’s Office”) arrived at the scene of the incident. They also brought a forensic expert from the city of Nalchik, in the Republic of Kabardino-Balkaria. The officials questioned the witnesses to the attack, inspected the scene of the incident and collected pieces of shrapnel and damaged scythes. No firearms or ammunition were found at the scene of the incident. The officials also examined the bodies and noted the wounds caused by shrapnel and by large-calibre guns.

According to the applicants, at the same time the head of the village administration contacted the military authorities. Two armoured personnel carriers with servicemen arrived in the village, and together with some local officials they proceeded to the site, but soon afterwards the local officials returned because the military allegedly refused to proceed further.

The Government submitted that on 6 August 2000, on the basis of the information received from the Arshty administration, the Republican Prosecutor’s Office had instituted criminal proceedings under Article 105 § 2 (a) and (f) of the Russian Criminal Code (murder of two or more persons committed by a generally dangerous method). The case file was assigned the number 20600055. After the initial investigative measures had been taken, the case was transferred to military prosecutors and given the number 34/32/0189-01.

According to the applicants, in the absence of any news of the investigation for several weeks after the incident, they applied to the Sunzhenskiy Prosecutor’s Office and then to the Republican Prosecutor’s Office. They were informed that a criminal investigation had been opened on 6 August 2000 and that the case file had been given the number 20600055. In reply to their subsequent requests to the prosecutors at various levels the applicants received hardly any substantive information about the investigation into the attack. On several occasions they received copies of letters by which their requests had been forwarded to different prosecutors’ offices.

On 29 August 2000 the Chief Military Prosecutor’s Office (Главная военная прокуратура), in reply to a request made by a deputy of the State Duma from Ingushetia on the applicants’ behalf, stated that the criminal investigation into the killing of two persons near the village of Arshty had been supervised by the military prosecutor’s office of the North Caucasus Military Circuit (военная прокуратура Северо-Кавказского военного округа) and that he would be informed of any results of the investigation.

On 30 October 2000 the preliminary investigation into the attack of 6 August 2000 was stayed for failure to identify those responsible. It was then resumed on 13 November 2000 (see paragraphs 69-70 below). It does not appear that the applicants were informed of any of those decisions.

On 14 November 2000 the applicants were informed by the Republican Prosecutor’s Office that on 9 August 2000 the file in case no. 20600055 had been transferred for investigation to garrison prosecutor’s office no. 59 (59 военная прокуратура гарнизона) in Mozdok, North Ossetia.

On 14 November 2000 a person acting as the applicants’ representative went to Mozdok to find out about the investigation. There he submitted an application stating the facts of the attack and asking for an update on the investigation. An officer of the prosecutor’s office showed him a register of cases, according to which the case had been transferred to a military prosecutor in Vladikavkaz, North Ossetia, for further investigation.

On 15 November 2000 the representative went to Vladikavkaz and talked to the military prosecutor, who informed him that the case had been sent to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) based in Khankala, the main Russian military base in Chechnya. On the same day the representative filed a request for an update on the investigation, on the second applicant’s behalf.

On 24 November 2000 the second applicant wrote to the military prosecutor of military unit no. 20102. She stated the facts of the case, referred to the number of the criminal investigation file communicated to her by the Sunzhenskiy Prosecutor’s Office and asked for an update on the investigation. She also requested that she be granted the status of victim in the proceedings. According to the second applicant, she received no reply to that letter.

On 30 December 2000 the investigating authorities again suspended the investigation on account of failure to identify the alleged perpetrators. It appears that this decision was then quashed by superior prosecutors twice, on 11 March and 24 October 2001 (see paragraphs 72, 73 and 75 below). It does not appear that the applicants were notified of any of those decisions.

On 29 January 2001 the fourth applicant was informed by the military prosecutor of military unit no. 20102 that his complaint had been added to the criminal investigation file opened in relation to his brother’s death. The date of the fourth applicant’s complaint was not specified.

On 30 May 2001 the second applicant wrote to the military prosecutor of military unit no. 20102 and to the military prosecutor of the North Caucasus Military Circuit. She enquired about developments in the investigation and requested that she and the first applicant be declared victims, in accordance with the Russian Code of Criminal Procedure. She received no reply to those queries, apart from a letter of 21 June 2001 by which the military prosecutor of the North Caucasus Military Circuit informed her that her letter had been forwarded to garrison prosecutor’s office no. 59 in Mozdok.

On 29 August 2001 the civil registration office for the Sunzhenskiy District issued death certificates numbered 376 and 405 for Khalid Khatsiyev and Kazbek Akiyev respectively. The date and place of death for both was recorded as 6 August 2000, village of Arshty, Sunzhenskiy District.

On 15 December 2001 the investigating authorities took a decision by which the criminal proceedings in connection with the events of 6 August 2000 were discontinued in part, as regards the superior officers’ order to attack the Niva car, as there was no evidence of a crime in their actions, and another decision ordering that the criminal proceedings be closed as a whole in the absence of evidence of a crime (see paragraphs 76-77 below). The applicants were informed of these decisions in undated letters (see paragraph 78 below).

On 25 January 2002 the latter decision of 15 December 2001 was set aside by superior prosecutors and the proceedings resumed (see paragraph 79 below). They were again discontinued owing to the absence of evidence of a crime on 21 March 2002 and then re-opened on 16 August 2002 (see paragraphs 81-82 below).

On 24 March 2003 the military prosecutor’s office of military unit 20102 informed the applicants that the investigation into the death of Khalid Khatsiyev and Kazbek Akiyev had been resumed.

By a letter of 17 April 2003 the SRJI, acting on the applicants’ behalf, requested the military prosecutor of military unit no. 20102 to inform them of the latest development in the case and to grant the status of victim to the first two applicants.

In a letter of 24 April 2003 the military prosecutor’s office of military unit no. 20102 informed the applicants that on the same date, with the consent of garrison prosecutor’s office no. 59, the criminal proceedings instituted in connection with the death of Khalid Khatsiyev and Kazbek Akiyev had been discontinued owing to the absence of evidence of a crime in the attack of 6 August 2000.

According to the Government, that decision had been taken in view of the investigating authorities’ finding that the pilots of the MI-24 helicopters had fired at the Niva car, with the result that the applicants’ two relatives had been killed, pursuant to an order that had been given by the command centre and that had thus been binding on them. Accordingly, the pilots’ action did not constitute a criminal offence. The actions of superior officers who had given the order to destroy the Niva vehicle did not constitute a criminal offence either, given that after the warning shots the car had continued moving in the close vicinity of the counter-terrorist operation in a situation of active armed resistance, with the members of illegal armed groups threatening the lives of federal servicemen and other persons. The Government did not mention the names of the pilots who had participated in the attack of 6 August 2000 or those of their superiors who had given the order in question.

On 21 May 2003 the military prosecutor of military unit no. 20102 informed the SRJI that the file in the criminal case relating to the death of Khalid Khatsiyev and Kazbek Akiyev had been transferred to the prosecutor’s office of the North Caucasus Military Circuit on 9 February 2001 in order to determine which body was competent to carry out the investigation. The prosecutor’s letter referred to case no. 14/33/0429-00.

On 7 July 2003 the military prosecutor of military unit no. 20102 again replied to a request from the SRJI, stating that case no. 14/33/0429-00 instituted in relation to the death of Khalid Khatsiyev and Kazbek Akiyev had been forwarded to the prosecutor’s office of the North Caucasus Military Circuit on 9 February 2001.

In a letter of 8 July 2003 the SRJI requested garrison prosecutor’s office no. 59 to declare the first two applicants to be victims in criminal case no. 14/33/0429-00 and to grant them access to the case file.

On 10 July 2003 garrison prosecutor’s office no. 59 notified the first two applicants in reply to their query that the file of the case concerning the killing of their sons had been sent to the prosecutor’s office of the United Group Alignment (военная прокуратура Объединенной группы войск) in order to verify whether the decision to discontinue the proceedings had been lawful and well-founded.

In letters of 10 and 11 August 2003 garrison prosecutor’s office no. 59 stated that the first and second applicants respectively could consult the case file in the garrison prosecutor’s office on any working day from 9 a.m. until 6 p.m. The letter referred to case file no. 34/32/0189-01D.

In a letter of 11 August 2003 garrison prosecutor’s office no. 59 also informed the SRJI, in reply to their query, that the criminal proceedings in case no. 34/32/0189-01D had been discontinued on 24 April 2003 in the absence of evidence of a crime in the attack of 6 August 2000, and that therefore there were no grounds in domestic law for declaring the first two applicants to be victims of a crime. The letter added that the first two applicants could have access to the case file on any working day between 9 a.m. and 6 p.m.

On 9 March 2004 the SRJI applied on the applicants’ behalf to garrison prosecutor’s office no. 59. They stated that on 29 August 2003 the applicants’ legal counsel had attempted to gain access to the documents in case no. 34/32/0189-01D but this had been refused on the ground that the case file had been transmitted to the military prosecutor’s office of the Republic of Ingushetia (военная прокуратура Республики Ингушетия). In this connection the SRJI requested garrison prosecutor’s office no. 59 to notify them of the reasons for the transfer of the case to the military prosecutor’s office of the Republic of Ingushetia and of any new developments in the investigation, together with the date on which, and the place where, the first two applicants and their lawyers could study the case file.

On the same date the SRJI sent a similar letter to the military prosecutor’s office of the Republic of Ingushetia.

On 18 March 2004 the Chief Military Prosecutor’s Office forwarded the request of the SRJI to the military prosecutor’s office of the United Group Alignment for examination.

In a letter of 23 March 2004 garrison prosecutor’s office no. 59 informed the SRJI that the file in criminal case no. 34/32/0189-01D had been referred to the military prosecutor’s office of the United Group Alignment for examination and then, after 1 September 2003, to a newly organised military prosecutor’s office of military unit no. 04062 (военная прокуратура – войсковая часть 04062) in the Republic of Ingushetia. The letter thus invited the applicants and their representatives to apply to the last mentioned prosecutor’s office.

On 2 June 2004 garrison prosecutor’s office no. 59 stated that they had replied to all the queries from the SRJI in a letter of 23 March 2004.

On 2 July 2004 the military prosecutor’s office of the United Group Alignment informed the first two applicants and the SRJI that the criminal proceedings in case no. 34/32/0189-01D had been discontinued on 24 April 2003 and that no subsequent investigative measures had been taken. The military prosecutor’s office of the United Group Alignment had studied the case materials and found the aforementioned decision of 24 April 2003 to have been substantiated. The case file had then been forwarded to the military prosecutor’s office of military unit no. 04062 and the applicants could consult the file there.

According to the applicants, all their efforts to gain access to the case file have so far proved unsuccessful. On the latest occasion they attempted to consult the case file in December 2006, but in vain.

In October 2004, at the communication stage, the Government were invited to produce a copy of the investigation file in the criminal case instituted in connection with the attack of 6 August 2000 and the killing of Khalid Khatsiyev and Kazbek Akiyev. Relying on the information obtained from the Prosecutor General’s Office, the Government refused to submit any documents from the criminal investigation file, stating that, even though the investigation had been discontinued, the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses.

On 23 October 2006 the application was declared admissible. At that stage the Court again invited the Government to submit the investigation file. In February 2007 the Government agreed to reveal the case-file materials, apart from documents “the disclosure of which [might] be harmful to the interests of the security of the Russian Federation and of the participants in the criminal proceedings” and those “which were irrelevant to the investigation”. According to the Government, the submission of the case file at an earlier stage had been inappropriate in view of the need to secure the safety of the participants in the criminal proceedings and to ensure that the information from the preliminary investigation was not disclosed, in accordance with Article 161 of the Russian Code of Criminal Procedure as well as on account of the applicants’ failure to exhaust available domestic remedies.

Eventually, the Government produced a number of documents running to a total of 223 pages. They can be summarised as follows.

By a decision of 6 August 2000 the prosecutor of the Sunzhenskiy District ordered that criminal proceedings under Article 105 § 2 (a) and (f) of the Russian Criminal Code (murder of two or more persons committed by a generally dangerous method) be instituted in connection with an attack by two military helicopters earlier that day which had resulted in the death of Khalid Khatsiyev and Kazbek Akiyev.

By a decision of 6 August 2000 the investigator in charge took up the case. In another decision taken on the same date the investigator in charge granted the status of victim of a crime to Ilyas Akiyev, who had sustained injuries as a result of the attack (see paragraphs 17 and 25 above).

In a decision of 8 August 2000 the investigator in charge ordered that the case file be transferred to a military prosecutor’s office, which had jurisdiction to investigate criminal offences committed by military personnel.

By a decision of 18 September 2000 an investigator of the military prosecutor’s office of military unit no. 20102 took up the case, which was given the number 14/33/0429-2000.

A decision of 2 October 2000 taken by the investigator in charge and approved by the military prosecutor of military unit no. 20102 ordered that the term of the preliminary investigation should be extended until 6 November 2000. The decision stated, in particular, that it had been established that on 6 August 2000 at about 9 a.m. the applicants’ two relatives, together with Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev, had arrived in a Niva car at an area three kilometres to the west of Arshty for grass-cutting. The decision then continued:

“At about 11 a.m. two military MI-24 helicopters appeared over the territory of the Chechen Republic to the south of the village of Arshty and started strafing the territory of the Chechen Republic. At about 1.30 p.m. [the applicants’ two relatives and the four other persons mentioned above] got into the [Niva] car and attempted to drive off in the direction of the village of Arshty. At the same time the helicopters ... moved in their direction and opened fire on the car from aircraft machine-guns. [The applicants’ two relatives and the four others mentioned above] left the car and went into hiding in grass nearby. The helicopters went on strafing the vehicle and [the six persons’] hiding-place from missile launchers and aircraft machine-guns. As a result of the attack Khalid Khatsiyev and Kazbek Akiyev died.”

The report then listed the investigative actions that had been carried out. It stated, in particular, that the scene of the incident had been inspected and craters and metallic pieces of shrapnel with markings had been found, that the corpses of Khalid Khatsiyev and Kazbek Akiyev had been examined and then sent to the Forensic Examinations Office of the Republic of Ingushetia for a forensic examination, and that Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev, Aslambek Dishniyev and F., who had been present at the scene of the incident on the date of the attack, had been questioned as witnesses. The decision also prescribed that further investigative measures be taken. It ordered that the identity of the pilots of the two MI-24 helicopters be established and that they be questioned, that the identity of the persons who had ordered the pilots to open fire be established and that those persons be charged with a criminal offence, and that other investigative measures necessary to complete the investigation be carried out.

By a decision of 30 October 2000 the investigator in charge of the military prosecutor’s office of military unit no. 20102 suspended the proceedings in case no. 14/33/0429-2000. The decision restated the facts of the incident and listed the investigative actions that had been conducted, in the same manner as this had been stated in the decision of 2 October 2000. It went on to say the following:

“A witness questioned in the course of the investigation, Lieutenant Colonel K., the head of the headquarters of the aircraft division of a [deleted] military unit, confirmed the fact of the attack on the Niva vehicle by helicopters of a [deleted] separate helicopter squadron in the vicinity of the village of Arshty. It follows from Lieutenant Colonel K.’s statement that at present the [deleted] separate helicopter squadron had been transferred from the territory of the Chechen Republic to the place of its permanent station in the city of [deleted].

Taking into account that the alleged perpetrator has not been identified, despite all the measures taken, that all the investigative measures which could have been carried out within the territory of the Chechen Republic have been taken and that the personnel of the [deleted] separate helicopter squadron have left for the place of their permanent station in the town of [deleted] ... the investigation should be carried out [at that place] in the town of [deleted].

The decision thus ordered that the criminal proceedings be suspended, as it was impossible to establish the identity of those responsible, and that the case file be transmitted to the military prosecutor’s office of the Kursk garrison.

In a decision of 13 November 2000 the military prosecutor’s office of the North Caucasus Military Circuit quashed the decision of 30 October 2000, stating that the investigation had been incomplete and ordering that the case be sent to the military prosecutor’s office of military unit no. 20102 for additional investigation.

By a decision of 30 November 2000 an investigator of the military prosecutor’s office of military unit no. 20102 took up the case.

A decision of 30 December 2000 ordered that the criminal proceedings in case no. 14/33/0429-2000 be stayed. It was, in essence, similar to the decision of 30 October 2000, but stated in addition the following:

“A witness questioned in the course of the investigation, [deleted] L., stated that on 6 August 2000 illegal fighters had attacked a [federal air] group in the vicinity of the village of Arshty. A MI-8 helicopter [was hit as a result of the attack] and fell to the west from Arshty...A search group, together with MI-24 helicopters for fire support, was sent to the site of the crash. Thereafter the pilots of the helicopters reported that they had destroyed a Niva vehicle from which illegal fighters had been firing at the helicopters. [Witness L.] was not asked for permission to open fire on the Niva vehicle. As a result of inspection [by federal servicemen] of an area in the vicinity of Arshty, a damaged Niva vehicle, hand grenades, spent cartridges from machine-guns cases and a bloodstained ammunition belt were found”.

The decision then concluded that the identity of those responsible could not be established and ordered that the proceedings be suspended.

In a decision of 11 March 2001 the military prosecutor’s office of the North Caucasus Military Circuit set aside the decision of 30 December 2000, stating as follows:

“An examination of the materials of the criminal case has established that the investigation was becoming procrastinated, that no practical measures aimed at establishing the identity of those responsible were being taken, that special requests were being met, with the result that it is now difficult to assess the actions or omissions of public officials and pilots of the helicopters’ crew, who have not been questioned to date. Until the present time no forensic examination of the dead bodies has been carried out, and therefore the cause of death has not been established and the question of the damage sustained by [those who were declared victims in the proceedings] has not been resolved.”

The military prosecutor’s office thus ordered that the decision of 30 December 2000 be quashed, that the proceedings in case no. 14/03/0396-00 instituted in connection with the murder of Khalid Khatsiyev and Kazbek Akiyev be resumed and that the case file be forwarded to garrison prosecutor’s office no. 59 for additional investigation.

By a decision of 24 August 2001 an investigator of the garrison prosecutor’s office no. 59 took up the case, referring to file number 14/32/0189-01D.

A decision of the military prosecutor’s office of the North Caucasus Military Circuit dated 24 October 2001 again quashed the decision of 30 December 2001 and ordered the re-opening of the investigation in case no. 14/21/0396-00 concerning the murder of the applicants’ relatives. It set out the same reasons as the decision of 11 March 2001.

In a decision of 15 December 2001 the investigator in charge of garrison prosecutor’s office no. 59 ordered that the criminal proceedings in case no. 14/32/0189-01D concerning the murder of Khalid Khatsiyev and Kazbek Akiyev be closed in part. The decision stated as follows:

“On 6 August 2000 at about 9 a.m. a MI-8 helicopter of a [deleted] separate helicopter squadron fell down in the vicinity of the village of Arshty of the Sunzhenskiy District of the Republic of Ingushetia. A helicopter which arrived at the site of the crash for the evacuation of the injured servicemen was also attacked by fire. On the same day at 12 noon, pursuant to an order of Colonel D., the commander of military unit no. 06652, two MI-24 helicopters under the command of Major [the real name is replaced with the nickname “Ivanov”] and Major [the real name is replaced with the nickname “Petrov”] were sent to cover the rescue operation. At about 1 p.m., while patrolling over the area to the west of Arshty, they saw a white [Niva] vehicle and five [rather than six] persons armed with automatic firearms standing nearby, and immediately reported this to the command centre of the United Group Alignment in the village of Khankala of the Chechen Republic. The helicopter[s] [were] at an altitude of 100-150 metres and at a distance of two kilometres from the car. [The pilots] observed the car through a target control system of tenfold magnification. The command centre reported that the identity of those persons would be established. About 15 minutes later the command centre gave an order to destroy the vehicle. Then [the pilots] fired a warning shot from a gun at a spot situated fifty metres away from the car with the purpose of warning everybody to stay where they were until the arrival of ground troops. After the warning shot, the people got into the car and started driving in the direction of the village of Arshty. [The pilots] reported to the command centre and received a repeated order to destroy the vehicle. Following the order, [the pilots] again fired a warning burst from an aircraft machine-gun. The car continued to advance. Thereafter, the third burst for effect was fired from the helicopter under the command of Major [“Ivanov”] after which the car stopped. This was reported to the command centre and to the ground troops... As a result of the attack Khalid Khatsiyev and Kazbek Akiyev died.

Accordingly, there is nominal evidence of a criminal offence punishable under Article 286 (3) of the Russian Criminal Code [aggravated abuse of power] in the actions of an official who ordered the destruction of the [Niva] vehicle. However, [this] order was justified in the aforementioned circumstances, and therefore the criminal proceedings in the part concerning the criminal offence under Article 286 (3) of the Russian Criminal Code should be terminated [owing to the absence of evidence of a criminal in that official’s actions ...]”

Another decision taken by the same investigator on 15 December 2001 ordered that the criminal proceedings instituted concerning the murder of the applicants’ two relatives be discontinued in full. The decision described the circumstances of the attack of 6 August 2000 as they were stated in the aforementioned decision of 15 December 2001 and referred to a report on the inspection of the scene of the incident of 6 August 2000, the reports on the forensic examination of the dead bodies of Khalid Khatsiyev and Kazbek Akiyev dated 3 September 2001 and witness statements of Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev, those of the pilots of the MI-24 helicopters, those of Colonel D., the commander of military unit no. 06652, and those of Lieutenant Colonel A., the head of the headquarters of military unit [the number of the unit is deleted] as well as to the other decision of 15 December 2001. It then concluded:

“Accordingly, on the basis of the evidence obtained during the investigation, it has been established that on 6 August 2000 at about 1 p.m. in the vicinity of the village of Arshty ... the members of the crew of the MI-24 helicopters destroyed the [Niva] vehicle pursuant to an order which was justified in the circumstances and was binding on them, and therefore their actions did not constitute a criminal offence and they are not liable to criminal responsibility for the damage inflicted by their actions. The criminal case instituted on 6 August 2000 under 105 § 2 (a) and (f) of the Russian Criminal Code shall be terminated ... in the absence of evidence of a crime.”

In undated letters the investigating authorities informed the applicants, Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev that the criminal proceedings instituted in connection with the attack of 6 August 2000 and the murder of Khalid Khatsiyev and Kazbek Akiyev had been suspended on 15 December 2001 owing to the absence of evidence of a crime. The applicants were informed that the decision could be appealed against to the prosecutor of garrison no. 59 or before a court.

By a decision of 25 January 2002 the military prosecutor’s office of the North Caucasus Military Circuit set aside the second decision of 15 December 2001 (see paragraph 77 above), stating that the preliminary investigation had been incomplete, that the special instructions had not been complied with, and that all the measures envisaged in the law had not been taken, with the result that it was difficult to assess the actions or omissions of the public officials and the members of the crew of the MI-24 helicopters. The decision thus ordered that the investigation be resumed.

On 21 February 2002 an investigator of garrison prosecutor’s office no. 59 took up the case.

In letters of 22 March 2002 the investigator in charge informed the second applicant’s family, as well as Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev, that on 21 March 2002 the proceedings in connection with the death of the applicants’ two relatives had been discontinued in the absence of evidence of a crime, and that this decision could be appealed against to the prosecutor of garrison no. 59 or in court. It is unclear whether the first applicant’s family was informed of the decision of 21 March 2002, as there is no letter to that effect among the documents submitted by the Government. A copy of the decision of 21 March 2002 was not submitted to the Court either.

By a decision of 16 August 2002 the military prosecutor’s office of the North Caucasus Military Circuit quashed the decision of 21 March 2002, stating that the investigation had been incomplete, that a superior prosecutor’

By a decision of 24 March 2003 an investigator of the military prosecutor’s office of military unit no. 20102 took up the case.

On the same date the investigator in charge informed the second applicant’s family and the aforementioned four men who had been attacked together with Khalid Khatsiyev and Kazbek Akiyev of the decision of 24 March 2003. It is unclear whether the first applicant’s family was informed of the said decision, as there is no letter to that effect among the documents submitted by the Government.

A decision of 24 April 2003 taken by the investigator in charge of the military prosecutor’s office of military unit no. 20102 ordered that the criminal proceedings in case no. 34/32/0189-01 be terminated. The decision described the circumstances of the attack of 6 August 2000 as they had been stated in the decision of 15 December 2001 on complete termination of the criminal proceedings (see paragraph 77) and referred to the same documents as those relied on in that decision. It also referred to the witness statement of Mr F., the head of the administration of Arshty at the relevant period, that of Mr M., the head of the flight safety service, and the report of a military expert of 20 March 2002 (see paragraph 102 below) and that it had been established that at the relevant period a counter-terrorist operation had been underway within the territory of the North Caucasus region, which comprised several republics, including the Chechen Republic and the Republic of Ingushetia. The residents of the region had been notified that once approached by military vehicles or federal servicemen they were to mark themselves with a piece of white cloth so as to indicate that they were civilians and wait for the arrival of servicemen for an identity check. The decision went on to say that on 6 August 2000 the applicants’ two relatives and the four other men, who had been discovered in the vicinity of Arshty by two MI-24 helicopters under the command of Major “Ivanov” and Major “Petrov”, had failed to comply with the aforementioned requirements and, after a warning shot, had attempted to escape in the Niva car with the result that the MI-24 helicopters had opened fire for effect, entailing the death of Khalid Khatsiyev and Kazbek Akiyev. The decision then concluded that the pilots had acted pursuant to an order which had been justified in the circumstances and had been binding on them, and therefore their actions did not constitute a criminal offence and they were not responsible for the damage caused. It thus ordered that the criminal proceedings against officers “Ivanov” and “Petrov” be discontinued in the absence of evidence of a crime in their actions.

There are a number of transcripts of witness interviews among the documents submitted by the Government. In particular, Ilyas Akiyev, Baymurza Aldiyev, Aslambek Imagamayev and Aslambek Dishniyev described the attack of 6 August 2000 as stated in the applicant’s version of events (see paragraphs 12-20) and insisted that they had had no firearms and that it had been obvious that they had been civilians cutting grass and had posed no danger. Aslambek Dishiyev and Aslambek Imagamayev also stated that they had never received any information concerning the rules of conduct of civilians in the zone of a counter-terrorist operation, that it had never been explained how a civilian should mark himself, as no special operations had been carried out in Ingushetia. Baymurza Aldiyev submitted that the head of the administration of Arshty and officers of the Department of the Interior of the Sunzhenskiy District had explained to the local residents that they should avoid the military personnel, not approach and not provoke them. He had heard from his relatives that when federal servicemen opened fire it was necessary to mark oneself as a civilian with a piece of white cloth and wait for the arrival of servicemen for an identity check, but during the attack of 6 August 2000 he had not performed those actions, as they had all been scared and attempted to escape, fearing for their lives.

Mr F., the head of the administration of Arshty at the material time, stated that Khalid Khatsiyev and Khalid Akiyev had never been involved in illegal activities, and no criminal proceedings had ever been brought against them. He also submitted that on 6 August 2000 he had visited the scene of the incident with the Niva car, together with local law-enforcement officers. According to Mr F., during the inspection of the scene of the incident pieces of shrapnel and craters from shells and bullets had been found. Mr F. claimed that there had been no firearms or grenades at the scene of the incident, that it had not been attended by servicemen or any persons before the arrival of the law-enforcement officers and that there had been no traces of anyone’s prior presence at the scene. Mr F. also stated as follows:

“Since the summer of 2000 a counter-terrorist operation has been underway within the territory of the Chechen Republic. From that time onwards the federal forces have repeatedly conducted special operations in the village of Arshty, during which representatives of official bodies or commanding officers have never explained the rules of conduct in a situation when representatives of the federal forces approach. I, myself, have on several occasions told the residents of the village that if military vehicles, aircraft or armed soldiers appear they should move away to a safe distance.

During the year 2000 it was never explained to me that on the approach of aircraft or helicopters it was necessary for people to mark themselves as civilians – with a white cloth or in any other way – to make the servicemen understand that they are civilians. Accordingly, I never gave such explanations to the residents of the village.

The officials of the Department of the Interior of the Sunzhenskiy District did not give [any such explanations] either, since there were no military actions on the territory of the Republic of Ingushetia...”

According to a statement of a superior officer of the air force obtained on 30 November 2000, in case of necessity the pilot in command of a helicopter might be authorised by the command centre to take, of his own motion, a decision to open fire.

Officer L., whose military rank and position are unknown as his personal details have been deleted from the transcript, stated during the questioning of 29 December 2000 that:

“...the pilots reported that they had destroyed a Niva vehicle with illegal fighters, who had been firing at the helicopters. The pilots did not request me to give them authorisation to open fire. I suppose that the pilot in command, of his own motion, took a decision to destroy the Niva car, having assessed the battle conditions. After the rescue operation had been completed, the area in the vicinity of the crash was inspected. As a result, a destroyed Niva vehicle was found and several hand-grenades, spent cartridges from light machine-guns and a bloodstained ammunition belt were found nearby.”

Lieutenant Colonel A., whose position is unknown as his personal details have been deleted from the transcript, stated during questioning on 6 May 2001 that it was he who, on 6 August 2000, had assigned a mission to a group consisting of the MI-8 helicopter, which had then been hit by the rebel fighters, and two MI-24 helicopters, which had been entrusted with the task of “covering” the MI-8 helicopter. He stated that this group had not been involved in an attack on the Niva car and that he had no information regarding the attack.

According to a statement of 23 April 2001 by Mr I., an investigator from the Sunzhenskiy Prosecutor’s Office, he had been summoned to the scene of the incident with the Niva car on 6 August 2000. When he arrived, the destroyed vehicle and the dead bodies had already been removed from the site. Mr I. had inspected the site and found fragments of shrapnel, pieces of broken car headlights and bloodstains. According to him, he had found no grenades, spent cartridges from light machine-guns or an ammunition belt.

Mr B., who at the material time had been a driver for the Ministry of the Interior of the Republic of Ingushetia and had attended the scene of the incident as an attesting witness on 6 August 2000, stated during questioning on 23 April 2001 that he had seen a severely damaged Niva car, two dead bodies lying 12-15 metres away and a lot of craters and pieces of shrapnel. Mr B. submitted that he had seen an F-1 hand grenade lying between the vehicle and one of the corpses. According to him, he had not seen any firearms, spent cartridges from light machine-guns or ammunition belts at the scene of the incident; near the corpses Mr B. had only seen scythes.

The pilots of the two Mi-24 helicopters who had attacked the Niva car on 6 August 2000 were questioned on 22 and 23 January 2001 respectively. The real names, surnames and personal details of the pilots have been deleted from the transcripts of their interviews. The pilots in command of the helicopters are indicated with the nicknames “Ivanov” and “Petrov” and an operating pilot who was working in tandem with “Ivanov” is indicated as “Sidorov”.

Witness “Ivanov” submitted that he had participated in a rescue operation of 6 August 2000 as pilot in command of the lead helicopter of a pair of MI-24 helicopters. The mission was assigned to them by the commander of military unit no. 06652, who received orders from the command centre of the main federal military base in the village of Khankala, the Chechen Republic. According to “Ivanov”, at about 1 p.m. he noticed a white Niva car and five [rather than six] men standing nearby, all of whom had automatic firearms. He observed the people without using any optical devices from the distance of two kilometres and altitude of 100-150 metres, but insisted that he clearly saw the people had firearms, and that his operating pilot, “Sidorov”, had seen them through a target control system of tenfold magnification. He reported this to the command centre in Khankala and was told that the identity of those five persons would be established. The pilots continued observing, the Niva vehicle remained still and the five men were moving around it. About 15 minutes later “Ivanov” received an order from the command centre in Khankala to destroy the car. According to him, he did not know the name of the official who had given the order. “Ivanov” then sought and obtained confirmation of that order. He fired a warning shot at a spot situated fifty metres away from the car, so as to make the people stand still and wait for the arrival of federal servicemen for an identity check. After the shot, the people got into the car and drove off in the direction of Arshty. “Ivanov” reported this to the command centre in Khankala and received an order to destroy the vehicle. He then fired a warning burst from an aircraft machine-gun, but the car carried on moving. “Ivanov” fired another burst and hit the Niva vehicle, which stopped but nobody got out of it. “Ivanov” then reported the incident to his superiors and left for the place of his station, as he was running out of fuel. “Ivanov” insisted that he did not know the names or military ranks of officials who had given him orders and had had no doubt that the five men belonged to illegal armed groups, as they had been armed. He submitted that “the people in the [Niva] car were supposed to stop after a warning shot; this was known to all the civilian population in the area of the military actions”.

Witness “Petrov” stated that he had participated in a rescue operation on 6 August 2000 as wingman of the pair of MI-24 helicopters. He confirmed that he had seen from a distance of two kilometres a white Niva car and five [rather than six] armed men, who after “Ivanov’s” warning shot had got into the car and started driving away, although “everybody knew that a car must stop at a shot or even a helicopter’s flight”. “Petrov” submitted that he had not been authorised to communicate with the command centre but had heard “Ivanov’s” communications and confirmed that “Ivanov” had reported about the car and the people to the command centre and twice received an order to destroy the vehicle. After the second order from the command centre “Ivanov” had given “Petrov” a command to fire at the vehicle, and the latter had strafed the vehicle with a machine-gun of 12.7 mm calibre, whilst “Ivanov” had fired at it with an automatic cannon of 30 mm calibre. The car had stopped but nobody had got out. He then left for the place of his location, as he was running out of fuel. “Petrov” stated that he did not know the names or military ranks of the officials who had communicated with “Ivanov” on 6 August 2000.

Witness “Sidorov” stated that on 6 August 2000 he had been an operating pilot on the MI-24 helicopter under the command of “Ivanov”, and that he had observed a Niva car and five [rather than six] men with automatic firearms standing nearby through a target control system of tenfold magnification, as he had reported to “Ivanov”. He then submitted the following:

“I clearly heard Major [“Ivanov”] report about the car to [deleted] and to [deleted]. About 10 minutes later an order followed from [deleted] (Khankala) to fire a warning shot. “Ivanov” fired a warning shot from an automatic cannon in front of the car. The people got into the vehicle and drove off in the direction of the village of Arshty and did not stop. All local inhabitants know that it is necessary to stop. [“Ivanov”] reported to [deleted] that the car had not stopped. An order to fire another warning shot followed. [“Ivanov”] made another circle and fired in front of the car with the automatic cannon, but the car did not stop. [“Ivanov”] reported to [deleted] about the situation with the car. An order followed to open fire for effect. [“Ivanov”] opened fire for effect, and the car stopped and I saw two persons get out and run into the forest. [“Ivanov”] reported to [the command centre] that the car had stopped and thereafter he transmitted to [deleted] the information on the car’s location to enable an identity check of the people in the car.”

During questioning on 23 January 2001 Colonel D. submitted that at the material time he had been the commander of the [deleted] separate helicopter squadron and that on 6 August 2000 he had heard communications between the MI-24 helicopters and the command centre. He confirmed that the pilots had reported about the Niva vehicle and armed men nearby, that they had been ordered to fire a warning shot, that the pilots had reported that the men had got into the car and attempted to escape and that the pilots had been ordered to destroy the vehicle.

Officer M., a military expert, stated during an interview of 20 April 2003 that the actions of the pilots of the MI-24 helicopters, who had attacked the group of people on 6 August 2000, had fully complied with relevant military regulations and the provisions of international law and had been justified in the circumstances. The expert admitted that the pilots could have mistaken agricultural equipment, in particular scythes, for firearms, but noted that the pilots had been absolutely positive that the men whom they had noticed had been armed and that those men had not marked themselves as civilians and had attempted to escape.

A report on the inspection of the scene of the incident of 6 August 2000 attested the presence of a large number of craters and metallic fragments of irregular shape as well as pieces of broken glass from backlights and a splash shield of a car and a large brown stain resembling blood. A piece of a broken scythe was also found at the scene of the incident.

Reports on the examination of the corpses of Khalid Khatsiyev and Kazbek Akiyev on 6 August 2000 attested the presence of a number of bleeding wounds of irregular shape, going from top downwards.

Reports on the medical forensic examination of the corpses of Khalid Khatsiyev and Kazbek Akiyev on 3 September 2001, based on the aforementioned two reports of 6 August 2000, confirmed that the corpses had borne bullet wounds, that the death of the two men had been caused by those wounds and that the location of the wounds indicated that they could have been inflicted in the circumstances described in the materials of the criminal case file.

An expert commission made up of two military experts, Mr M. (see paragraph 98 above) and Mr K., stated as follows in a report of 20 March 2002:

“According to the rules in force in the territory of the Chechen Republic and neighbouring regions, a driver of any transport vehicle is obliged, at the sight of a military helicopter, to stop the vehicle, get out and mark himself. Therefore the crew had the right to destroy the vehicle, which was moving away from the area of an attack without marking itself with a prearranged signal (a white flag, a green signal flare).”

The report thus concluded that the pilots had been justified in their actions.

The materials submitted by the Government reveal that the investigating authorities also sent a number of queries and requests to various State bodies in the context of the investigation. In particular, on 1 December 2000 the military prosecutor’s office of military unit no. 20102 sent a request to the military prosecutor of the Kursk garrison to establish whether the pilots who had attacked the Niva car had coordinated their actions with their superiors, to establish the identity of those superiors, and to establish who had taken the decision to attack the Niva car. It is unclear whether this request has ever been complied with, as there are no corresponding documents among the materials submitted by the Government.

The Government also adduced copies of domestic court decisions taken in unrelated sets of civil proceedings. These included a first-instance judgment and appeal decision awarding compensation for property damage inflicted by servicemen in Ingushetia; a first-instance judgment and appeal decision awarding damages to the first applicant in Khashiyev and Akayeva v. Russia (nos. 57942/00 and 57945/00, judgment of 24 February 2005) in connection with the death of his relatives in Chechnya; and a first-instance judgment and appeal decision refusing compensation for property damage inflicted by servicemen in Ingushetia.

Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR. On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation (CCP).

Article 125 of the CCP provides that the decision of an investigator or prosecutor to dispense with or terminate criminal proceedings, and other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.

Article 161 of the CCP enshrines the rule that information from the preliminary investigation may not be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private lives of participants in criminal proceedings without their permission.


CASE OF FREEDOM AND DEMOCRACY PARTY (ÖZDEP) v. TURKEY

Preliminary objection dismissed (Article 34 - Victim);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The Freedom and Democracy Party (ÖZDEP) was founded on 19 October 1992. Its constitution was lodged with the Ministry of the Interior the same day. Its programme included the following passages.

“... Following the war of ‘Liberation’ waged jointly by Kurds, Turks and other national minorities, the Sultanate was abolished in Turkey and the Republic proclaimed.

The sole aim of the Republic has been to establish national sovereignty. Efforts to unite Turkey with Europe have come to nothing. Turkey has not succeeded in lifting itself out of mediocrity.

From the earliest days of the Republic, certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats.

In order to preserve that monopoly, the policy of those in power has been to refuse to recognise the existence of the Kurdish people and to ignore its most legitimate rights.

The dominant ‘Turkish’ philosophy has been maintained up to the present day, overriding the most natural rights and claims of the Kurdish people, by means of militaristic and chauvinistic propaganda and a policy of exile and destruction. State policy, based on a capitalist system designed to oppress minorities – particularly Kurdish minorities, but even Turkish ones – has been pursued in the name of modernisation and westernisation.

Owing to this policy, which colours the political, economic and social aspects of Turkey’s territorial integrity, there is no possibility of this monopoly of State power being brought to an end. That power runs counter to the interests of the vast majority of the population.

It uses force to impose the present situation on the people in order to preserve its economic interests. Thus, it blocks the way to any democratic process aimed at protecting the interests of Turkish and Kurdish workers.

The Freedom and Democracy Party proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self-determination.

The Freedom and Democracy Party uses political, democratic and ideological means to combat all fascist, fundamentalist, chauvinistic and racist movements or organisations hindering solidarity, unity and brotherhood between peoples.

Both in domestic and foreign policy, the aim of the Freedom and Democracy Party is to protect the interests of our peoples and those of all workers. ÖZDEP is the guarantor of the cultural, occupational, economic and political values of the various national or religious minorities and of every socio-professional category. It seeks recognition of the right to form a political party.

Our Party will guarantee the religious and national minorities the right to worship as they please, to practise their religion freely, to freedom of thought and to respect for their customs, cultures and languages. Every individual will be entitled to use the media, especially radio and television.

ÖZDEP has proposals on how to determine and define the prerequisites for establishing a social order encompassing the Turkish and Kurdish peoples.

ÖZDEP regards our peoples as the sole owners of the country’s wealth, natural wealth and mineral resources.

ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle.

Our Party proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage. This assembly will represent the interests of the Turkish people, the Kurdish people and any other minority.

This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples’ national sovereignty.

The media will be the moving force for the consolidation of fraternity and friendship between peoples. They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population. They will be responsible for ensuring that the political, economic, social and cultural rights of the peoples are recognised.

There will be no government interference in religious affairs, which will be placed in the hands of the relevant institutions.

In order to preserve the right to self-determination of oppressed peoples, our Party will outlaw any form of cultural, military, political or economic aggression.

The Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country.

The Freedom and Democracy Party considers that there can be democracy only if the Kurdish problem is solved. This problem concerns every Turk and Kurd who supports freedom and democracy.

The Freedom and Democracy Party favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights.

The Freedom and Democracy Party will fully respect the Kurdish people’s right to self-determination so that a democratic solution based on the self-determination and equality of peoples can be found.

Currently, our legislation and the manner in which the legal system operates are inherently undemocratic, contrary to fundamental human rights and freedoms and based on class interests. They deny the Kurdish people an identity and forbid any form of workers’ organisation or association. They are racist and retrograde.

An order will be established permitting the Turkish and Kurdish peoples and the minorities to develop and enjoy their particular cultures freely. Each people will be entitled to education in its mother tongue, that being an essential prerequisite for the development of a people and a nation.

Everyone will have the right to basic education in his mother tongue. The education system from primary school to university will be based on education in one’s mother tongue. A person’s mother tongue shall be given precedence in court proceedings ...”

On 29 January 1993, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Turkish Constitutional Court to have ÖZDEP dissolved on the grounds that it had infringed the principles of the Constitution and the Law on the regulation of political parties. He considered that the content and aims set out in the party’s programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation.

On 25 February 1993 the President of the Constitutional Court sent Principal State Counsel’s application to the Chairman of ÖZDEP inviting him to lodge his preliminary observations in defence.

On 29 March 1993 ÖZDEP’s lawyers filed preliminary written observations and requested a hearing. They argued, inter alia, that the Law on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by the Constitution. They also maintained that dissolving the party would infringe the provisions of international instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Helsinki Final Act and the Charter of Paris for a New Europe. They submitted that it was unacceptable to force a political party, on pain of being dissolved, to promote an ideology which conformed to the Turkish Constitution.

On 30 April 1993, while the Constitutional Court proceedings were still pending, a meeting of the founding members of ÖZDEP resolved to dissolve the party.

On 11 May 1993 Principal State Counsel lodged his submissions on the merits of the case with the Constitutional Court. Since ÖZDEP had gone into voluntary dissolution, it did not file any submissions on the merits.

On 14 July 1993 the Constitutional Court made an order dissolving ÖZDEP, notably on the ground that its programme was apt to undermine the territorial integrity of the State and the unity of the nation and violated both the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. The judgment was served on Principal State Counsel, the Speaker of the National Assembly and the Prime Minister’s Office. The Constitutional Court’s judgment was published in the Official Gazette on 14 February 1994.

The Constitutional Court held, firstly, that, pursuant to section 108 of the Law on the regulation of political parties, ÖZDEP’s resolution to go into voluntary dissolution did not prevent that court from ruling on the merits of the case as it had been made after the commencement of the proceedings before it.

As to the merits, the Constitutional Court began by reiterating the constitutional principles that all persons living on Turkish territory, whatever their ethnic origin, formed a whole united by their common culture. The sum of the persons who made up the Republic of Turkey was called the “Turkish nation”. The different ethnic groups making up the “Turkish nation” were not divided into a majority and minorities. The court reiterated that, under the Constitution, no political or legal distinction based on ethnic or racial origin could be made between citizens: all Turkish nationals, without distinction, could avail themselves of all civil, political and economic rights.

With particular reference to Turkish citizens of Kurdish origin, the Constitutional Court held that in every region of Turkey such persons enjoyed the same rights as other Turkish citizens. That did not mean that the Constitution denied the existence of a Kurdish identity, since citizens of Kurdish origin were not forbidden to express their Kurdish identity. The Kurdish language could be used on all private premises, in workplaces, in the press and in works of art and literature.

The Constitutional Court reiterated the principle that everyone was bound to observe the provisions of the Constitution even if they did not agree with them. The Constitution did not preclude the celebration of difference but forbade propaganda based on racial difference and aimed at destroying the constitutional order. It pointed out that by virtue of the Treaty of Lausanne having a separate language or ethnic origin was not by itself enough for a group to qualify as a minority.

With regard to the content of ÖZDEP’s programme, the Constitutional Court observed that it was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were portrayed in the programme as an oppressed people whose democratic rights were being completely ignored. According to the Constitutional Court, ÖZDEP called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection.

In relation to the principle of secularism, the Constitutional Court noted that ÖZDEP’s programme contained a proposal for the abolition of the Religious Affairs Department of the government on the ground that religious affairs should be under the control of the religious institutions themselves. After reiterating what was meant by the principle of secularism, the court said that advocating the abolition of the government Religious Affairs Department amounted to undermining the principle of secularism. It concluded that that aspect of ÖZDEP’s programme was contrary to section 89 of the Law on the regulation of political parties.

The Constitutional Court pointed to the fact that the Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism and that the Helsinki Final Act guaranteed the inviolability of national frontiers and territorial integrity. It concluded that ÖZDEP’s activities were subject, inter alia, to the restrictions referred to in paragraph 2 of Article 11 and to Article 17 of the Convention.

The relevant provisions of the Constitution read as follows:

“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”

“The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.”

“Sovereignty resides unconditionally and unreservedly in the nation.

Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class ...”

“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”

“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.”

“Everyone linked to the Turkish State by nationality shall be Turkish.”

“Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ...

Political parties shall be an indispensable part of the democratic political system.

Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law.

The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic.

No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship ...”

“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution.

The decisions and internal running of political parties shall not be contrary to democratic principles.

Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.

Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel.

Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...”

The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:

“Political parties

(a) shall not aim or strive to or incite third parties to

change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class ...;

jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.

(c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims ...”

“Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.”

“Political parties shall not

(a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or

(b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities ...”

“Political parties shall not have an aim that runs counter to Article 136 of the Constitution, which provides that the Religious Affairs Department, which is bound to carry out the duties assigned to it in conformity with the principle of secularism ..., shall be accountable to central Government.”

“The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.”

“Where a political party has been definitively dissolved, its founding members, its chairman, the members of its executive committee and central office, the members of its disciplinary and administrative organs at all levels and the members of political groups in the Grand National Assembly of Turkey shall, if still members when the party was dissolved, be disqualified from acting as founders, managers or financial controllers of any other political party. Any members whose actions were responsible for the political party’s being dissolved shall be disqualified for ten years from joining a political party or standing for election to Parliament.

No political party shall be formed with a majority of members from a political party that has been dissolved.”

“No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.”

“The Constitutional Court shall dissolve a political party where

(a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or

(b) its membership, central office or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions ...”

Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above.

“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”

“A resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects.”


No substantive violation of Art. 3;Violation of Art. 3 on account of the lack of an effective investigation into the applicant's complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was seventy-two years old at the time of the events and had previously suffered from tuberculosis on at least three occasions.

On 19 December 1996 the applicant visited a café-bar where he drank and became intoxicated. On his way home, at around 6 p.m., he passed by the building of the Bulgarian national television (“BNT”), in front of which there was a demonstration. The applicant was carrying a beer bottle, which he either dropped or threw against the building of the BNT. He then went to a nearby café.

Two police officers, who were providing security in front of the BNT, approached the applicant in the café. When they saw that he was intoxicated they led him off to the security guards' duty room in the BNT.

In response to the applicant's request to be informed why he was being detained he was told that it was for disturbing the peace and for throwing objects at the building of the BNT in an attempt to break its windows.

The applicant was kept in the security guards' duty room of the BNT until 8 p.m. He was then taken to the First District Police Station (Първо районно управление на МВР) for questioning, but, in view of his intoxicated state, was transferred to the Sobering-up Centre of the Sofia Police. The applicant arrived there at around 9 p.m. and remained overnight.

The applicant was discharged at around 9 a.m. on the next day, 20 December 1996, into the custody of the police and was taken to the Investigative Division of the First District Police Station for questioning.

At 11:15 a.m. on 20 December 1996 the applicant was given a written reprimand by the police to refrain from disturbing the peace, to drink with caution and not to resist inspections by the police. The applicant refused to be served with the written reprimand.

The applicant contended, which the Government did not challenge, that he was released from the police station sometime in the afternoon on 20 December 1996.

The applicant submitted that when he was detained by the two police officers in front of the building of the BNT he may have showed some resistance as he believed he was being wrongly detained. He contended, however, which the Government did not challenge, that while he was being led to the security guards' duty room of the BNT the police officers repeatedly hit him with a truncheon on his hands, kicked him in his ankles and punched him in the back and in the area of his kidneys. The applicant maintained that his injuries were not treated nor tended to by a doctor while he was in detention.

In their subsequent statements before the Prosecutor's Office, the police officers stated that the applicant was somewhat aggressive when they tried to detain him, but that they did not use any special measures to subdue him.

After being released on 20 December 1996 the applicant was examined by a doctor and a special medical report for use in legal proceedings was prepared, the relevant part of which stated the following.

“Preliminary data: The [patient] indicates that on 19.12.1996 at approximately 6 p.m. he was beaten by uniformed police officers.

The examination established: On the back of the right hand in the area of the [bracelet] joint it is visible that a linear contusion of the skin exists of reddish-dark colour with a size of 5 cm by 2 cm. On the back of the wrist of the right hand another contusion can be seen with a size of 4 cm by 2 cm. On the back of the left hand in the area of the palm bone of the thumb there is a contusion and abrasion resulting from almost parallel scratches of reddish-dark colour protruding above the skin around them with a size of 3 cm by 2 cm.

CONCLUSION

The examination of [the patient] established: contusions and abrasions on the skin of both hands.

These injuries resulted from blows by or against solid blunt objects or blunt-cornered objects, as well as from the tangential affects of such objects and [considering] their morphological characteristics [they] reasonably correspond and could have been sustained in the manner and at the time indicated by [the patient].

They caused him pain and suffering.”

In 1998 the applicant received treatment to ailments in his ankles and wrists.

On 13 January 1997 the applicant complained to the Chief Prosecutor's Office regarding the beating by the police officers on 19 December 1996 and of being detained. On an unspecified date, he was informed that his complaint was being forwarded to the Sofia's Regional Military Prosecutor's Office.

On 21 March 1997 the Sofia Regional Military Prosecutor's Office refused to open a preliminary investigation because of lack of evidence of an offence. It based its decision on the applicant's complaint to the authorities and on statements from the police officers who arrested him and the officer on duty at the sobering-up centre. The Prosecutor's Office considered the applicant's assertions to be unfounded and unsupported by any facts other than his complaints. The applicant appealed against the decision of the Prosecutor's Office on an unspecified date.

By decision of 17 December 1997 the Armed Forces Prosecutor's Office upheld the decision of the Sofia Regional Military Prosecutor's Office. It found that the facts of the case did not warrant the opening of a preliminary investigation. The decision of 17 December 1997 stated, inter alia, the following:

“From the materials [contained] in the file it [can be] ascertained that [the complaint] relates to the forced detention in a sobering-up centre of the applicant [following] a disturbance of public order [while] in an intoxicated state. The inquiries performed do not indicate that any unlawful actions [were performed] by the police. The collected data show that there was in fact a disturbance of public order – breaking of bottles, throwing objects at the building of the [Bulgarian national] television, etc. In such case quite rightly [the Sofia Regional Military Prosecutor's Office] refused to open a preliminary investigation.”

It is unclear whether a copy of the decision of the Armed Forces Prosecutor's Office was ever sent to the applicant.

On 30 December 1997 the applicant filed a complaint with the Chief Prosecutor's Office claiming that he had not received a response to his previous complaints.

On an undetermined date a prosecutor from the Armed Forces Prosecutor's Office responded, in the form of a resolution, which stated, inter alia, the following:

“On 30 December 1997 a complaint was filed by [the applicant], who was not satisfied with the decision of the prosecutors from the Armed Forces Prosecutor's Office and the Sofia Regional Military Prosecutor's Office.

I reject the complaint of [the applicant] because the Armed Forces Prosecutor's Office has already ruled on the matter and there is no necessity for it to change its position [expressed] in the decision of 17 December 1997.”

The Government contended that a copy of the above resolution was sent to the applicant on 14 January 1998. The applicant maintained, however, that he never received it and that he only became aware of the decisions of the Prosecutor's Office not to open a preliminary investigation on 21 November 1998. A note to that effect was inscribed in the applicant's handwriting on the copies of the decisions he provided to the Court.

Section 40 (1) of the National Police Act, as in force at the relevant time, provided, as relevant:

“... [P]olice [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of:

resistance or refusal [by a person] to obey a lawful order;

arrest of an offender who does not obey or resists a police [officer];

attack against citizens or police [officers]; ...”

Section 41 (2) provided that the use of force had to be proportionate to, in particular, the specific circumstances and the personality of the offender.

Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used]”.

Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another individual.

Article 131 § 1 (2) of the Criminal Code provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the Criminal Code).

Under the Code of Criminal Procedure (1974), as in force at the relevant time, preliminary investigations for publicly prosecutable offences could be opened only by a decision of a prosecutor or an investigator (Article 192).

The prosecutor or the investigator must open a preliminary investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the Code of Criminal Procedure).

During the relevant period, the Code of Criminal Procedure provided that if the information provided to the authorities was not sufficiently supported by evidence, the latter had to conduct a preliminary inquiry (verification) in order to determine whether the opening of a preliminary investigation was warranted (Article 191).